Barr v. City of Columbia Brief for Petitioners
Public Court Documents
January 1, 1963
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Brief Collection, LDF Court Filings. Barr v. City of Columbia Brief for Petitioners, 1963. 54584790-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8e24a12e-6249-4915-bf89-81fec57a1a89/barr-v-city-of-columbia-brief-for-petitioners. Accessed April 28, 2025.
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^ttprrmr (ta r! nf % Inttrft Stairs
October Term, 1963
No. 9
Charles F. Barr, et al., Petitioners,
—y.—
City of Columbia.
No. 10
Simon Bouie and Talmadge J . Neal, Petitioners,
—v.—•
City of Columbia.
No. 12
R obert Mack Bell, et al., Petitioners,
Maryland.
ON WRITS OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA
AND THE COURT OF APPEALS OF THE STATE OF MARYLAND
BRIEF FOR PETITIONERS
J ack Greenberg
Constance Baker Motley
J ames M. Nabrit, I I I
10 Columbus Circle
New York 19, New York
Charles L. Black, J r.
346 Willow Street
New Haven, Connecticut
J uanita J ackson Mitchell
1239 Druid Hill Avenue
Baltimore 17, Maryland
Tucker R. Dearing
627 North Aisquith Street
Baltimore 2, Maryland
Matthew J . P erry
L incoln C. J enkins
1107% Washington Street
Columbia, South Carolina
Attorneys for Petitioners
Of Counsel:
Derrick A. Bell, J r.
Leroy D. Clark
William T. Coleman, J r.
Michael Meltsner
Louis L. P ollak
Bichard B. P owell
J oseph L. Bauh
J ohn Silard
Hans Smit
(Member of the Bar,
Supreme Court of
the Netherlands)
I nez V. Smith
f iT
Opinions Below
Jurisdiction ....
I N D E X
PAGE
Statutory and Constitutional Provisions Involved...... 3
Statement .......................................-........................ ....... 5
Summary of Argument ........ .............................. -......... 17
A r g u m e n t :
I. Petitioners’ Convictions Enforce Racial Dis
crimination in Violation of tlie Fourteenth
Amendment to the Constitution of the United
States..................................... -........................ 19
II. The Convictions of Petitioners in the Barr
and Bouie Cases, Pursuant to S. C. Code,
§16-386, and in the Bell Case Under Md. Code
Ann., Art. 27, §577 Deny Due Process of Law
Because There Was No Evidence in the Rec-
ords of the Conduct Prohibited by Those
Laws, or Else, the Laws as Construed to In
clude Petitioners’ Conduct Do Not Convey
a Fair Warning That It Was Prohibited .... 59
III. The Convictions in Barr v. Columbia Should
Be Reversed on Several Grounds Specially
Applicable to That Case ................................ 65
C o n c l u s io n ................................................................................................. 74
11
PAGE
Appendix A:
A Discussion of Property Rights ....................... 75
Appendix B :
Survey of the Law in European and Common
wealth Countries ................................................ . 84
Table of Cases
American Federation of Labor v. Swing, 312 U. S. 321.. 35
Barrows v. Jackson, 346 U. S. 249 .................. ............. 22
Black & White T. & T. Co. v. Brown & Yellow T. & T.
Co., 276 U. S. 518......................................................... 35
Bridges v. California, 314 U. S. 252 ............................ 35
Bolling v. Sharpe, 347 U. S. 497 ............................... 21
Briggs v. Elliott (Brown v. Board of Education), 347
U. S. 483 .......................................................... 30
Brown v. Baskin, 80 F. Supp. 1017 (E. D. S. C. 1948),
aff’d 174 F. 2d 391 (4th Cir. 1949) .................. ...... 54
Brown v. Board of Education, 347 U. S. 483 ..............21, 37
Brown v. South Carolina Forestry Commission (E. D.
S. C., July 10,1963)........... 30
Buchanan v. Warley, 245 U. S. 60 ........................ 21, 31, 37
Burton v. Wilmington Parking Authority, 365 U. S.
715 .............................................................................26,42
Cantwell v. Connecticut, 310 U. S. 296 ................. 35, 61, 73
Catlette v. United States, 132 F. 2d 902 (4th Cir. 1943) .. 43
Charleston v. Mitchell, 239 S. C. 376, 123 S. E. 2d 572
(1961), petition for certiorari pending, No. 8, Oct.
Term, 1963 ............... .......... ..................... .................60, 69
Ill
PAGE
City of Greenville v. Robinson (Arrest and Trial War
rant No. 179) ............................................................. — 31
Civil Rights Cases, 109 U. S. 3 ......................... —17, 26, 44,
47, 51, 52
Colorado Com. v. Continental Airlines, 372 U. S. 714 .. 21
Columbia v. Barr, 239 S. C. 395, 123 S. E. 2d 521 (Dec.
14, 1961) .................................... ................................. 2, 3
Columbia v. Bouie, 239 S. C. 570, 124 S. E. 2d 332 (Feb.
13, 1962) ................................... ............................ ..... 2,4
Cooper v. Aaron, 358 U. S. 1 ......... ..................... ........21, 22
Drews v. State, 224 Md. 186, 167 A. 2d 341 (1961) ....... 16
Edwards v. South Carolina, 372 U. S. 229 ...... 18, 35, 61, 73
Erie R. Co. v. Tompkins, 304 U. S. 69 ......................... 34
Flemming v. South Carolina Elec. & Gas Co., 224 F. 2d
752 (4th Cir. 1955), app. dism., 351 U. S. 901------- 30
Garner v. Louisiana, 368 U. S. 157 ........................ 60, 72, 73
Goss v. Board of Education, 373 U. S. 683 ........... ...... 21
Greenville v. Peterson, 239 S. C. 298, 122 S. E. 2d 826
(Nov. 10, 1961) ...... ...................................... .... .......61, 70
Griffin v. Illinois, 351 IT. S. 12.......................................44, 47
Griffin & Green v. State, 225 Md. 422, 171 A. 2d 717
(1961), cert, granted 370 IT. S. 935 ........... .............16, 63
Hurd v. Hodge, 334 H. S. 24 ................................. . 22
Karson’s Inn, Inc. v. Mayor, etc., Baltimore Superior
Court Case No. 1962/990/74578 ........... .................... 39
Kentucky v. Dennison, 65 U. S. (24 How.) 66_______ 47
Krauss v. State, 216 Md. 369, 140 A. 2d 653 (1958) ___ 63
Kuhn v. Fairmont Coal Co., 215 U. S. 349 .................. 35
IV
PAGE
Lanzetta v. New Jersey, 306 U. S. 451 ............... ...60, 62, 64
LeRoy Fibre Co. v. Chicago, M. & P. St. P. Ry., 232
IT. S. 340 ................................................................... . 58
Lombard v. Louisiana, 373 U. S. 267 ....... ............. 18, 52, 67
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951),
cert. den. 342 U. S. 831 ........... .................................. 43
Mapp v. Ohio, 367 U. S. 643 ............................ ........... 43, 44
Marsh v. Alabama, 326 U. S. 501 ...... ..................35, 54, 55
Maryland v. Bell, 227 Md. 302, 176 A. 2d 771 (1962) .... 2, 3
McCabe v. Atchison, Topeka & S. F. Ry. Co., 235 U. S.
151 ................... .............................. .......... .................. 42
McCready v. Byrd, 195 Md. 131, 73 A. 2d 8 (1950) ...... 32
McGhee v. Sipes, 334 U. S. 1, No. 87, Oct. Term, 1947 .. 24
Myers v. State Board of Public Welfare, 224 Md. 246,
167 A. 2d 765 (1961) ................... .............................. 32
NAACP v. Button, 371 U. S. 415............... ............ ....... 64
Nebbia v. New York, 291 U. S. 502 ........... .................... 53
Peterson v. Greenville, 373 U. S. 244 ................. 18, 21, 29,
36, 54, 67
Public Utilities Commission v. Poliak, 343 U. S. 451 .. 42
Railway Mail Ass’n v. Corsi, 326 U. S. 88 ..................... 37
Reid v. Covert, 354 U. S. 1 .........„........... .................... 52
Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1947) .......... 54
Rochin v. California, 342 U. S. 165 ............................ 39
Scott v. Sanford, 60 U. S. (19 How.) 393 ..................... 51
Shelley v. Kraemer, 334 U. S. 1 ................. 17, 22, 23, 24, 25,
35, 44, 49, 54, 55
Shramek v. Walker, 152 S. C. 88,149 S. E. 331.............. 62
The Slaughterhouse Cases, 83 U. S. (16 Wall.) 36 ..36, 50, 51
Smith v. California, 361 U. S. 147 ............................ 49, 64
y
PAGE
State v. Avent, 253 N. C. 580, 118 S. E. 2d 47 (1961),
vacated 373 IT. S. 375 .............. -.................-............ 55, 63
State v. Edwards, 239 S. C. 339, 123 S. E. 2d 247 (Dec.
5, 1961) .................................-----................-............. 70,71
State v. Hallback, 40 S. C. 298, 18 S. E. 919 — ............. 61
State v. Lazarus, 1 Mill., Const. (8 S. C. Law), 31 (1817) 62
State v. Mays, 24 S. C. 190 (1886) ----- ------—............. 62
Strauder v. West Virginia, 100 U. S. 303 .....- .............. 36
Stromberg v. California, 283 U. S. 359 ................ 55, 64, 73
Taylor v. Louisiana, 370 U. S. 154 — .................. - 72
Terry v. Adams, 345 U. S. 461 ................... -........... 41, 42, 54
Testa v. Katt, 330 IT. S. 386 ....—...............-.................. - 47
Thompson v. Louisville, 362 U. S. 199 ..........5, 8, 62, 69, 72
Thornhill v. Alabama, 310 IT. S. 88 ................... - .......55, 64
Trustees of the Monroe Avenue Church of Christ v.
Perkins, 334 IT. S. 813 .............................................. 22
United States v. Cruikshank, 92 U. S. 542 ---- ---- -.... 45
United States v. Hall, 26 Fed. Cas. 79 (No. 15,282,
1871) ........................................................................... 45
United States v. National Dairy Prod. Corp., 372 U. S.
29 ............................. ....... ......................... .......... ........ 64
Western Turf Asso. v. Greenberg, 204 U. S. 359 .......... 38
Williams v. Georgia, 349 U. S. 375 —.............................68, 70
Williams v. Howard Johnson’s Restaurant, 268 F. 2d
845 (4th Cir. 1959) ...............................................-..... 21
Williams v. Zimmerman, 172 Md. 563, 192 Atl. 353
(1937) ...............................................-................... ------ 31
Wolf v. Colorado, 338 U. S. 25................. .......... .......— - 43
Wright v. Georgia, 373 U. S. 284 ..........- ........ -........-65, 72
VI
F ed er a l S t a t u t e s
PAGE
Enforcement Act of April 20, 1871, 17 Stat, 13 .......... 46
Enforcement Act of May 31,1870,16 Stat. 140 ....... 46
United States Code, Title 28, Section 1257(3) .............. 3
S t a t e S t a t u t e s
Cal. Civil Code, §§51-52 (Snpp. 1961) ............................ 37
Colo. Eev. Stat. Ann., 25-1-1 (1953) ............................ 37
Conn. Gen. Stat. Eev. §53-35 (Supp. 1961) ............... 37
Constitution of Maryland (Declaration of Eights, Ar
ticle 5) ........ ............................................................. . 35
Constitution of South Carolina, Article 11, §7 .............. 30
D. C. Code, §47-2901 (Supp. 1960) .............. ................. 37
Idaho Acts 1961, c. 309 .................................................. 37
Illinois, Smith-Hurd Ann. Stat., Criminal Code of 1961,
Article 13 ....................... ........... ................................... 37
Indiana Stat. Ann. §§10-901, 10-902 (Supp. 1962) ..... 37
Iowa Code Ann. §735.1 (1950) ....................................... 37
Kansas Gen. Stat. Ann., §21-2424 (1949) ..................... 37
Maine Eev. Stat., c. 137, §50 (Supp. 1959) ................. 37
Maryland Acts 1963, H. B. No. 391, c. 453 ................. 40
Maryland Ann. Code of Public General Laws, 1957,
Article 27, §577, appearing at Volume 3, p. 234 ....4,13,15,
39, 59, 62
V ll
PAGE
Maryland Ann. Code, Art. 49B, §§11-15 (Acts 1963,
c. 227, 228) .......................................... -................... 37, 40
Maryland Ann. Code, Art. 56, §§2, 57; §178; §174 (1957) 53
Maryland Ann. Code, Art. 65A, §1 (1957) ..................... 32
Md. Code, Art. 27, §398 (1957) .......................... ............ 32
Md. Code, Art. 27, §§510-526 (1939), repealed by Laws
of Maryland, c. 22 (1951) .............................. ............ 32
Md. Code, Art. 27, §655 ..................... .............. ....... ...... 32
Md. Code, Art. 27, §577 .................................................. 18
Md. Code, Art. 41, §§185-188 .............................-......... 32
Md. Code, Art. 43, §200 (1957) .................................... 53
Md. Code, Art. 43, §202 (1957) ....................................... 53
Md. Code, Art. 43, §203 (1957) ....... 53
Md. Code, Art. 43, §209 (1957) .................................... 53
Md. Code, Art. 49B, §5 (1957) ....................................... 32
Md. Code, Art. 59, §§61-63 (1939) ................................ 32
Md. Code, Art. 77, §226 (1957) .................................... 32
Md. Code, Art. 77, §279 (1957) .................................... 32
Md. Code, Art. 78A, §14 (1957) ................................... 32
Mass. Gen. L., c. 272, §§92A, 98 (1956) ........................ 37
Mich. Stat. Ann., §28.343 (Supp. 1959) ............... -........ 37
Minn. Stat. Ann., §327.09 (1947) ....................... -.......... 37
Mont. Rev. Codes, §64-211 (Snpp. 1961) .................. * 37
Neb. Rev. Stat., §§20-101, 102 (1943) ...................... - 37
N. H. Rev. Stat., Ann., §354.1 (Snpp. 1961) ................. 38
vm
PAGE
N. J. Stat. Ann., §§10 :l-2 to 10 :l-7 (1960) ..................... 38
N. M. Stat. Ann., §§49-8-1 to 49-8-6 (Supp. 1961) ...... 38
N. Y. Civil Rights Law, §40 (1948), Executive Law
§§292(9), 296(2) (Supp. 1962) ................................... 38
N. D. Cent. Code, §12-22-30 (Supp. 1961) ..................... 38
Ohio Rev. Code, §4112.02(G) (Supp. 1961) .................. 38
Ore. Rev. Stat., §§30.670-.680, as amended by L. 1961,
c. 247 ...........................- ........................... ................. 38
Pa. Stat. Ann., Tit. 18, §4654, as amended by Act. No.
19 (1961) ........................ ................ ................. ......... 38
R. I. Gen. Laws, §§11-24-1 to 11-24-6 (1956) .............. 38
S. C. Code of Laws Ann. §5-19 (1962) ........................ 30
S. C. Code of Laws Ann., §§35-51, 35-52, 35-53, 35-54,
35-130, 35-131, 35-132, 35-133, 35-135, 35-136, 35-142
(1962) ........................ ........................................ ........ 53
S. C. Code of Laws Ann., §58-551 (1962) ..................... 54
S. C. Code of Laws, 1956, §15-909 ............................ 4, 5, 67
S. C. Code of Laws, 1952, §16-386 ...... 3, 4, 5,10,13,18, 59, 60
S. C. Code, §16-388 (S. C. Acts 1960, p. 1729, Act No.
743, May 16, 1960) ..................................................... 61
S. C. Code, §21-751 (1962)........................... ........... ....... 30
S. C. Code, §40-452 (1962) .......................................... 30
S. C. Code, §§51-2.1 to 2.4 (1962) ................................... 30
S. C. Code, §55-1 (1962) .... .................. ...................... 30
S. C. Code, §58-551 (1962) ...... .................................... . 30
S. C. Code, §§58-714, 58-715, 58-718 to 720 (1962) 30
IX
PAGE
S. C. Code, §58-1491 (1962) ......................................... 30
S. C. Code, §58-1331 (1962) ..... 30
S. C. Code, §58-1332 (1962) ........................................ 30
S. C. Supreme Court Rule 4, § 6 ....... 68
S. D. Acts 1963, Senate Bill No. 1, Jan. 30, 1963 ___ 38
Vt. Stat. Ann., Tit. 13, §§1451, 1452 (1958) .................. 38
Wash. Rev. Code, §§49.60.040, 40.60.215 (1962) ........ . 38
Wis. Stat. Ann., §924.04 (1958), as amended (Supp.
1962) ....................................................................... . 38
Wyo. Stat., §§6-83.2 (Supp. 1961) ............................... 38
O t h e r A u t h o r it ie s
Cong. Globe, 41st Cong., 2d Sess. 3611 (1870) ------- 46
Cong. Globe, 42d Cong., 1st Sess. 85, 459 ................. 46
Cong. Globe, 42d Cong., 1st Sess. 483 (1871) .............. 46
Cong. Rec., 43d Cong., 1st Sess. 412 (1874) ............. 46
Henkin, “Shelley v. Kraemer, Notes for a Revised Opin
ion,” 110 U. Pa. L. Rev. 473 (1962) ____ ___-23, 50, 52
Maryland Commission on Inter-racial Problems and
Relations to the Governor and General Assembly,
1957 Annual Report ...... .............. ................. .......—- 31
Restatement of Property ......................................-—76, 77
9 Wigmore, Evidence (3d ed. 1940), §2486 .............. 27
9 Wigmore, Evidence (3d ed. 1940), §2488 .................... 27
Woodward, The Strange Career of Jim Crow (1957) .... 28
1st t h e
Supreme ©curt of % Inttofc
October Term, 1963
No. 9
C h a r l e s F. B ab b , et al.,
Petitioners,
C it y o f C o l u m b ia .
No. 10
S im o n B o u ie and T alm a d g e J. N e a l ,
Petitioners,
C it y oe C o l u m b ia .
No. 12
R o b er t M a c k B e l l , et al.,
M ar y l a n d .
Petitioners,
ON WRITS OE CERTIORARI TO THE SUPREME COURT OF THE
STATE OF SOUTH CAROLINA AND THE COURT OF APPEALS
OF THE STATE OF MARYLAND
BRIEF FOR PETITIONERS
2
Opinions Below
1. Barr v. Columbia. The opinion of the Supreme Court
of South Carolina (R. Barr 53) is reported at 239 S. C.
395, 123 S. E. 2d 521 (Dec. 14, 1961). The opinion of the
Richland County Court, April 28, 1961, is unreported (R.
Barr 46). The oral opinion of the Columbia Recorder’s
Court, March 30, 1960, is unreported (R. Barr 41).
2. Bouie v. Columbia. The opinion of the Supreme
Court of South Carolina (R. Bouie 64) is reported at 239
S. C. 570, 124 S. E. 2d 332 (Feb. 13, 1962). The opinion
of the Richland County Court, April 28, 1961, is unre
ported (R. Bouie 57). The oral opinion of the Columbia
Recorder’s Court, March 25, 1960, is unreported (R. Bouie
50).
3. Bell v. Maryland. The opinion of the Court of Ap
peals of Maryland (R. Bell 10) is reported at 227 Md.
302, 176 A. 2d 771 (Jan. 9, 1962). The Memorandum Opin
ion of the Criminal Court of Baltimore, March 24, 1961,
is unreported (R. Bell 6).
Jurisdiction
1. Barr v. Columbia. The final judgment of the Su
preme Court of South Carolina, which is the order deny
ing rehearing, was entered January 8, 1962 (R. Barr 59).
The petition for certiorari was filed April 7, 1962, and
granted June 10, 1963 (R. Barr 63).
2. Bouie v. Columbia. The final judgment of the Su
preme Court of South Carolina, which is the order deny
ing rehearing, was entered March 7, 1962 (R. Bouie 69).
3
The petition for certiorari was filed June 5, 1962, and
granted June 10, 1963 (E. Bouie 73).
3. Bell v. Maryland. The judgment of the Supreme
Court of Maryland was entered January 9, 1962 (E. Bell
12). On April 6, 1962, Mr. Justice Black extended the
time for filing a petition for writ of certiorari to and in
cluding June 8, 1962 (E. Bell 62). The petition was filed
on that date and was granted June 10, 1963 (E. Bell 62).
The jurisdiction of this Court in each of these cases
is invoked pursuant to 28 TJ. S. Code §1257(3), petitioners
having asserted below and here the denial of rights, privi
leges and immunities secured by the Fourteenth Amend
ment to the Constitution of the United States.
Statutory and Constitutional Provisions Involved
I. Each of these cases involves Section 1 of the Four
teenth Amendment to the Constitution of the United States.
II. Statutes:
A. Barr v. Columbia—petitioners were convicted under
the following statutes:
1. Code of Laws of South Carolina, 1952, Section 16-386,
as amended:
§16-386. Entry on lands of another after notice—
prohibiting same.—Every entry upon the lands of an
other where any horse, mule, cow, hog or any other
livestock is pastured, or any other lands of another,
after notice from the owner or tenant prohibiting such
entry, shall be a misdemeanor and be punished by a
fine not to exceed one hundred dollars, or by imprison
ment with hard labor on the public works of the county
for not exceeding thirty days. When any owner or
4
tenant of any lands shall post a notice in four con
spicuous places on the borders of such land prohibiting
entry thereon, a proof of the posting shall be deemed
and taken as notice conclusive against the person mak
ing entry, as aforesaid, for the purpose of trespassing.
2. Code of Laws of South Carolina, 1952, Section 15-909:
§15-909. Disorderly conduct, etc.—The mayor or
intendant and any alderman, councilman or warden
of any city or town in this State may, in person,
arrest, or may authorize and require any marshal or
constable especially appointed for that purpose to ar
rest, any person who, within the corporate limits of
such city or town, may be engaged in a breach of the
peace, any riotous or disorderly conduct, open ob
scenity, public drunkenness or any other conduct
grossly indecent or dangerous to the citizens of such
city or town or any of them. Upon conviction before
the mayor or intendant or city or town council, such
person may be committed to the guardhouse which
the mayor or intendant or city or town council is au
thorized to establish or to the county jail or to the
county chain gang for a term not exceeding thirty days
and if such conviction be for disorderly conduct such
person may also be fined not exceeding one hundred
dollars, provided, that this section shall not be con
strued to prevent trial by jury.
B. Bouie v. Columbia—petitioners were convicted under
Code of Laws of South Carolina, 1952, Section 16-386, as
amended, quoted supra.
C. Bell v. Maryland—petitioners were convicted under
Annotated Code of the Public General Laws of Maryland,
1957, Article 27, §577, appearing at Volume 3, p. 234:
5
Any person or persons who shall enter upon or
cross over the land, premises or private property of
any person or persons in this State after having been
duly notified by the owner or his agent not to do so
shall be deemed guilty of a misdemeanor, and on con
viction thereof before some justice of the peace in the
county or city where such trespass may have been
committed be fined by said justice of the peace not
less than one, nor more than one hundred dollars, and
shall stand committed to the jail of the county or city
until such fine and costs are paid; provided., however,
that the person or persons so convicted shall have the
right to appeal from the judgment of said justice of
the peace to the circuit court for the county or city
or Criminal Court of Baltimore where such trespass
was committed, at any time within ten days after such
judgment was rendered; and, provided, further, that
nothing in this section shall be construed to include
within its provisions the entry upon or crossing over
any land when such entry or crossing is done under
a bona fide claim or right or ownership of said land,
it being the intention of this section only to prohibit
any wanton trespass upon the private land of others.
Statement
1. Barr v. Columbia
Petitioners, five Negro college students, were convicted
of the crimes of entry on lands of another after notice pro
hibiting such entry (S. C. Code §16-386) and breach of the
peace (S. C. Code §15-909) in the Recorder’s Court of
Columbia, South Carolina, at a non-jury trial held March
30, 1960 (R. Barr 53).
6
Four witnesses testified at the trial. The City’s witnesses
were Carl Stokes, a State Law Enforcement Division
(SLED) officer, and John Terry, co-owner and manager of
the Taylor Street Pharmacy in Columbia where petitioners
were arrested. The City’s witnesses gave the following
version of what happened on March 15, 1960, leading to
the arrests. ,
Mr. Stokes, and two local officers were ordered to go to
the Taylor Street Pharmacy, and they arrived there at
about 10:30 A.M. (R. Barr 2-3); the police had information
that a “sit-down demonstration” was to occur there (id., 3,
6). The manager Terry had been alerted by the police on
the previous day that a demonstration was planned for
12:35 A.M. (id., 20-21). At about that hour the petitioners
entered the store (id., 3). When they entered a couple of
them stopped at the card counter (id., 3, 7), then all pro
ceeded to the lunch counter in the rear and took seats—
four at one counter and one at another (id., 3). Stokes and
the co-owner Terry followed them to the rear, and when
they sat down Terry stated to the group that “he wasn’t
going to serve them, that they would have to leave” (id., 4,
17); petitioners did not respond to this (id., 17). (It is clear
that Mr. Terry said nothing to them before they sat down
(id., 12)). Several white customers seated at the counter
continued to sit; it was said that one white lady “jumped
up, or stood up” (id., 12). After Terry’s statement, SLED
agent Stokes said he “requested that Mr. Terry go to each
individual and ask him to leave, in my presence, and he
went to each one and asked him to leave, that he wasn’t
going to serve them,” and he added that “each one turned
and looked at him but they never said anything” (id., 4).
At this point agent Stokes said that petitioner Carter got
up and “asked Mr. Terry if he could ask him a question” ;
Mr. Terry said that he had no comment to make, that they
7
would have to leave” (id., 4). Stokes said that when Carter
stood np the other petitioners did, but then Carter “mo
tioned for them to sit back down and they sat back down
and sat there” (id., 4). After “several minutes,” Stokes
said he told them that he was a State officer and “they
had been asked to leave and they didn’t so they were under
arrest” (id., 4-5). Petitioners then followed the officers out
of the store and were taken to police headquarters.
Mr. Terry’s version was substantially the same as Agent
Stokes’ (id., 17). He testified that the store’s policy was
not to serve Negroes at the lunch department (id., 17) ;
but that he catered to the public generally irrespective of
race in the front of the store, i.e., all areas except the lunch
counter; and that he had “quite large numbers” of Negroes
trading in the store (id., 18-19). He said Negroes can come
into the luncheonette to receive “food service to go” (id.,
19). Terry said that he had a sign in the luncheonette say
ing that he “can refuse service to anyone” (id., 20) ; there
was no mention of any sign explicitly barring Negroes.
Terry acknowledged that the store was advertised as a
complete department store, and volunteered that “we have
two City licenses . . . the luncheonette is one and the front
area is another” (id., 18).
When asked if he asked the police to arrest petitioners
when they ignored his direction to leave, Terry said, “We
[the police and himself] had a previous agreement to that
effect, that if they did not leave, they would be placed under
arrest for trespassing” (id., 23), and later:
Q. Was it your idea to have these defendants ar
rested, or was it the idea of the police department?
A. I ’ll put it that it was the both of us’ idea, that
if they were requested to leave and failed to leave,
and given time to leave, that they would be arrested
(id., 24).
8
Stokes testified that before petitioners arrived Terry had
told him “that if they came, he wasn’t going to serve them”
{id., 9). Terry acknowledged that petitioners did not in
terfere with anyone in the store, were generally orderly,
were neatly dressed, and that their appearance was gen
erally that of any other customer except for their color
{id., 22). He agreed that his only reason for not serving
them was the fact that they sat down and the fact that they
were Negroes {id., 23); and expressed the view that their
sitting down “created a disturbance” and that “everyone
was on pins and needles, more or less, for fear it could
possibly lead to violence” {id., 24). Mr. Stokes said that
his purpose in being there was to prevent violence; that
none occurred; and that “the only incident that I figured
violence might come from was when they sat down and
the customers stood up, and I didn’t know what was going
to come off. I couldn’t read their minds or anyone else’s
in fact” {id., 13).
The account of the events given by petitioners David
Carter {id., 27-30) and Richard M. Counts {id., 31-37) radi
cally contradicted the City’s witnesses on numerous points;
some are indicated below.1 Messrs. Carter and Counts both
stated that they thought they had a right to be there, and
that they wanted to be served {id., 25, 28, 31, 37). On
1 For example, both Messrs. Carter and Counts denied that
Terry asked them to leave (R. Barr 29, 35) ; both said that another
store employee—possibly the luncheonette manager—spoke to them
and said as Carter recalled it, “You might as well leave because
I ain’t going to serve you” (R. Barr 26, 34). Carter said that
he stood up, tried to ask the luncheonette manager a question,
but Terry said, “No, don’t answer him” ; that Counts also stood
up; that he motioned to the other three petitioners and told
them to sit until someone asked them to leave; and that he had
turned to walk away when he was stopped by a deputy (R. Barr
26). Counts also said he stood up and walked to the exit, and
then the deputy sheriff told him that he was under arrest (R.
Barr 33).
9
cross-examination Mr. Carter said: “I did not go with the
idea of being arrested, but I had been promised that I
would have equal protection in that store or any other
store” {id., 28). Carter’s explanation of this was cut off
by the Court sustaining the prosecutor’s objection of “hear
say” ; on cross (R. Barr 28):
Q. Who promised you that?
A. The City Manager. There were five of us went
down to City Hall.
Q. He promised you?
A. Listen to me now. Five of us wTent to the City
Hall one day to see the Mayor. The Mayor was not in.
We then talked with the City Manager, who was very
polite to us. He said to us: “Gentlemen, further dem
onstrations will not be tolerated.” We said: “Mr.
McNayr, what would you do to stop such demonstra
tions?” He said to us: “If you are going to go down,
I don’t object to nobody—.” (Emphasis supplied.)
Mr. Sholenberger: This is all hearsay, your
Honor.
The Court: I ’m going to strike that out. You see,
you have to answer counsel’s questions.
A. I ’m answering his questions—
The Court: We don’t want any speech here. We’re
not going to tolerate any great big speech.
Mr. Jenkins: Your Honor, I want the record to
show that counsel opened the door for this type of
testimony.
The Court: He didn’t open the door for any hear
say testimony. I ’m going to rule hearsay testimony
out, definitely. I rule it out right now. Ask him the
questions.
At the conclusion of the trial the Court found petitioners
guilty as charged, and sentenced them to pay $100 on each
10
charge, or serve 30 days in jail on each charge, provided
that $24.50 was suspended on each charge {id., 1). Before
and after the verdict petitioners made motions objecting
that the convictions would, and did, violate their rights un
der the due process and equal protection clauses of the
Fourteenth Amendment {id., 38-40; 42-45). The convic
tions were affirmed by the Richland County Court and the
Supreme Court of South Carolina {id., 46, 53).
2. Bouie v. Columbia
Petitioners Bouie and Neal, Negro college students, were
convicted of the crime of entry on the lands of another
after notice prohibiting the same (S. C. Code §16-386; R.
Bouie 65). (They were charged, but not convicted of breach
of the peace. Bouie’s conviction for resisting arrest was
reversed on appeal.) The trials were held March 25, 1960,
in the Recorder’s Court of the City of Columbia, South
Carolina, without a jury. The State called two witnesses,
Shep A. Griffith, Assistant Chief of Police in Columbia,
who made the arrests, and an officer who examined peti
tioners’ possessions at the police station. Petitioners called
Dr. Guy Malone, manager of Eckerd’s Drug Store in Colum
bia, where they were arrested. Both also testified in their
own defense.
Eckerd’s Drug Store in Columbia is a rather large store,
with numerous departments including a luncheonette area ;
it is a part of a chain of similar establishments located in
different southern states (R. Bouie 24). The manager
Malone testified that the general public, including Negroes,
is invited to do business at Eckerd’s, except that Negroes
are not served at the lunch counter department which is
for whites only {id.).2
2 There was no evidence of a sign announcing this policy in the
store. The City’s witnesses did not mention it, but Neal testified
11
Petitioners entered Eckerd’s around 11:05 A.M. on March.
14, 1960, went to the rear lunch area and sat in the first
booth (R. .Bouie 25, 28, 29). They had books, and sat
reading them for about fifteen minutes, during which no
store employee approached them to take their order, be
cause as Dr. Malone put it, “we didn’t want to serve them.”
While acknowledging Eckerd’s policy of not serving
Negroes at the lunch area, Dr. Malone denied that he re
fused to serve them because they were Negroes; this is
■perhaps explainable by Malone’s subsequent statement
that he “didn’t do anything” {id., 25-26),3 and thus never
affirmatively told them he wouldn’t serve them. Dr. Malone
did call the City police and ask that these young men be
removed {id., 26).
Assistant Chief of Police Griffith and a police detective
responded to a call that there was “some disturbance” at
Eckerd’s {id., 3). In Griffith’s words {id., 3-4):
that after he and Bouie took seats a salesman came up with a
“No Trespassing” sign on a chain in his hands and put it up
(R. Bouie 29).
3 The testimony (R. Bouie 25-26) was:
“Q. Did anyone seek to take the orders of these young men?
A. No, they did not.
Q. Why did they not do so ?
A. Because we didn’t want to serve them.
Q. Why did you not want to serve them ?
A. I don’t think I have to answer that.
Q. Did you refuse to serve them because they were Negroes?
A. No.
Q. You did say, however, that Eckerd’s has the policy of
not serving Negroes in the lunch counter section?
A. I would say that all stores do the same thing.
Q. We’re speaking specifically of Eckerd’s?
A. Yes.
Q. Did you or any of your employees, Mr. Malone, approach
these defendants and take their order for food ?
A. No.
The Court: He testified to that awhile ago.
Q. What, if anything, did you do ?
A. I didn’t do anything.
Q. Did any of your employees do anything f
A. No.”
12
A. Well, Detective Slatterer and I went there as a>
call to Headquarters that there was some disturbance
in Eckerd’s Drug Store. When we arrived, Mr. Malone,
who is the Manager, went back to the booth. He met us
about halfway up the store and he went back to a booth
with the two defendants Neal and the other boy, Bouie,
and he said: “Now, you have served your purpose and
I want you out, because we aren’t going to serve you”
and they sat there just ignoring him, so to speak, kept
reading or looking down at something, whether they
were reading or not, and he said: “I ’m asking you the
second time to get on out.” That was in my presence,
so then I told them both that the Manager wanted them
out and they should go on out, and this boy on the other
side there, Bouie, said: “For what?” I said: “Because
it’s a breach of the peace and I ’m telling you the second
time to go on out.” He said: “Well, I asked you for
what?” So at that time I reached and got him by the
arm. Neal here had started to make an effort to get up
but the other boy had not, and I had to pull him up
out of the seat, so I stood them up and made a pre
liminary frisk, which we usually do to see if they had
any weapons on them and I found none. Then I caught
him in the belt, his belt and his breeches.
Chief Griffith said that when he arrived the only reason
Malone gave for calling him was: “He said there were
two colored boys back there in the seat and refused to
move, yes sir” {id., 5); he made clear that when he ar
rived the petitioners were just sitting in the booth reading
{id., 8). The Chief said that there were no other persons
seated in the food area when he arrived {id., 11); but there
was a group of people “standing there completely idle,
watching” {id., 10). Chief Griffith declined to say how much
time elapsed after his second request to Bouie to leave
13
before he lifted him out of the seat except that it was
“enough time for him to get up” {id., 13).
The Chief described Eekerd’s as “a public place,” gen
erally patronized by the public {id., 16-17), and expressed
no doubt as to why he was called to arrest petitioners. On
cross he was asked if this was “because they were Negroes
who were asking for food service in the food department in
Eckerd’s Drug Store, and the manager was directing them
out because they were Negroes!” and he responded: “Why,
certainly, I would think that would be the ease” {id., 17).
Petitioners were sentenced to pay lines of $100 or serve
thirty days in jail, $24.50 being suspended {id., 1).
Petitioners made motions raising Fourteenth Amendment
due process and ecjual protection objections at the end of
the State’s case, at the close of the trial, and after the trial
{id., 20, 49-50, 51-57). On appeal the convictions under
S. C. Code §16-386 were affirmed by the Richland County
Court and the State Supreme Court {id., 57, 64).
3. Bell v. Maryland
Petitioners, twelve Negro students, were charged and
convicted of violating Article 27, §577 of the Maryland
Code, as a result of their participation in a “sit-in” demon
stration in a Baltimore, Maryland restaurant on June 17,
1960. Petitioners were indicted by the Baltimore City grand
jury, in a two-count indictment dated July 12, 1960 (R. Bell
14-15). They were found not guilty on count two, and
guilty on count one {id., 9), which charged that the twelve
petitioners:
. . . on the seventeenth day of June, in the year of our
Lord nineteen hundred and sixty, at the City aforesaid,
unlawfully did enter upon and cross over the land,
premises and private property of a certain corporation
14
in this State, to wit, Hooper Food Co., Inc., a corpora
tion, after having been duly notified by Albert Warfel,
who was then and there the servant and agent for
Hooper Food Co., Inc., a corporation, not to do so;
contrary to the form of the Act of Assembly in such
case made and provided, and against the peace, gov
ernment and dignity of the State {id., 14).
At the trial, held in the Criminal Court of Baltimore
without a jury on November 10, 1960, the following evi
dence was presented. On Friday, June 17, 1960, at about
4:15 or 4:20 P.M., a group of 15 or 18 Negro students,
including petitioners, entered the lobby of Hooper’s Res
taurant {id., 23). They were met at the topmost of four
stairs leading from the lobby to the dining room by Miss
Dunlap, the hostess {ibid.). When one asked to be seated,
Miss Dunlap said, “I ’m sorry, but we haven’t integrated
as yet” {ibid.). The restaurant manager, Albert Warfel,
came to where Miss Dunlap was standing and began to
talk to one of the petitioners, John Quarles {id., 24, 27).
Warfel said:
. . . It has been stated, it had been stated to me,
company policy, we’re not, we have not integrated
the restaurant. I so notified-— First I asked the
leader of the group, which I wanted to get it cen
tralized. I spoke to him [Quarles]. I told him the
company policy {id., 27).
Warfel continued:
“Well, while in the process of translating the com
pany policy, the group broke. They brushed by us
and sat at various tables in the restaurant. After
they were seated they proceeded to hedgehop” [spread
out to various tables] {id., 27-28).
15
Mr. Hooper, owner of the corporation operating the es
tablishment, arrived at this point and instructed Warfel
to summon the police (id., 28). Police Sgt. Sauer and
Lt. Redding were in the area and were called over by
Warfel; when they went inside they found the group of
colored people, including petitioners sitting around at dif
ferent tables (id., 38-39). Warfel read Article 27, §577 of
the Maryland Code to the petitioners, and then requested
that they leave (id., 39). Some of the group had apparently
not entered the upstairs dining room, but had gone into
the downstairs grill area (id., 43, 52). Sgt. Sauer said
that “After reading the ordinance upstairs we went down
to the basement restaurant which is more or less of a
cafeteria arrangement and the same thing followed down
there (id., 39). At this point some of the Negroes left
and the others’ names were taken down (id., 39, 29);
Hooper went to a magistrate’s office and secured warrants
for those who remained. Petitioners were not placed in
custody-—it was arranged by phone that they would ap
pear in court on the following Monday (id., 39-40). When
Sgt. Sauer returned they had left the restaurant (id., 40).
Mr. Warfel made it clear that the petitioners were re
fused service solely on the basis of their color (id., 30).
Mr. Hooper said he was aware of the aim of the demon
stration as other such demonstrations had occurred in his
restaurant (id., 32); that he was “in sympathy” with the
demonstrators’ “objectives” but disapproved their methods
(id., 32-33); and that he told Mr. Quarles that he “felt
personally that it was an insult to human dignity” and he
sympathized but that “customers govern my policy” (id.,
37).
Mr. Quarles also testified as to this conversation, in
cluding Hooper’s statement that his policy was as it was
16
because bis “customers don’t want to eat with Negroes,”
and his explanation to Hooper that “we were there to he
served and also to let his customers become aware of the
problem of segregation in Baltimore City,” and that “we
were not there to interrupt his business and we were not
there to distort or destroy his business. We were simply
there seeking service as humans and also as citizens of
the United States of America” (id., 43-44).
Defendants filed a motion raising Fourteenth Amend
ment due process and equal protection objections includ
ing free speech and association, and racial discrimination
claims, during and after the trial (id., 4-5, 41, 60). Their
constitutional defenses were rejected by the trial court
and on appeal. The trial court’s opinion was rendered on
March 24, 1961 (id., 6), and petitioners were sentenced
on that day to fines of ten dollars, which were suspended,
because of the Court’s views that “these people are not
law-breaking people; . . . their action was one of principle
rather than any intentional attempt to violate the law,”
and “they did not intend to deliberately violate the law
but were seeking to establish a principle” (id., 9-10). The
Maryland Court of Appeals affirmed, rejecting petitioners’
constitutional arguments by citing its decisions in Drews
v. State, 224 Md. 186, 167 A. 2d 341 (1961), and Griffin &
Green v. State, 225 Md. 422, 171 A. 2d 717 (1961) (id., 10-
12) .
17
Summary of Argument
I.
Petitioners’ convictions enforce racial discrimination in
violation of the Fourteenth Amendment. The records
clearly show racial discrimination. The states are consti
tutionally responsible for the discriminations under three
related theories urged by petitioners. First, the use of
state judicial machinery to convict petitioners of a crime
is a use of state power in the Fourteenth Amendment sense.
Shelley v. Kraemer, 334 U. S. 1, is applicable, and cannot
properly be distinguished. Second, state action is involved
because the acts of discrimination were causally related,
at least in part, to a segregation custom which law has
substantially supported. State action is causally traceable
into the discrimination; all the evidence tends to show this.
The States have not shown the contrary, and the burden of
proving otherwise should rest on them in the circumstances
of the cases. Finally, state power is involved to a significant
degree in that the states’ regimes of laws fail to furnish
protection to petitioners by subordinating their claimed
right to equality to a narrow and technical property claim.
The states’ role is not neutral; they have preferred the dis
criminator’s insubstantial property claim to the petitioners’
claim of equality. The Fourteenth Amendment overrides
this state choice, for equal protection of the laws requires
the states to protect the claim of equality in such circum
stances. A part of the holding in the Civil Rights Cases,
109 U. S. 3, should be discarded; the holding that the Four
teenth Amendment applies only where government is in
volved is not challenged.
The theories of “state action” urged above may rationally
be limited in their incidence by an interpretation of the
substantive meaning of the equal protection clause, which
recognizes other constitutional demands. Thus, the personal
18
and private life of individuals need not be subjected to
Fourteenth Amendment norms. Petitioners do not urge that
no state action is needed under the Fourteenth Amendment,
but rather, that because it is usually present a substantive
rule applying the equal protection clause to the “public life”
of the community is needed to do some of the work that
the state action concept is wanted for but cannot do.
II.
The convictions under S. C. Code §16-386 and Md. Code
Art. 27, §577, deny due process because there was no evi
dence of the conduct proscribed, or else the laws as applied
fail to furnish fair warning. Both statutes provide against
entry after notice not to do so; these records clearly show
petitioners were arrested for failures to leave premises
they were already on following demands to leave. Only a
fiat of construction could apply these laws to petitioners’
acts.
III.
Additional grounds require reversal in Barr v. Columbia.
First, the records show police involvement in “working
with” the proprietor to effect the discrimination against
petitioners; the policeman even “requested” the store man
ager to ask petitioners to leave. This is an active use of
state machinery, power, and influence in support of and
initiation of discrimination. Cf. Lombard v. Louisiana, 373
U. S. 267, and Peterson v. Greenville, 373 U. S. 244.
In addition to the grounds stated above, the breach of the
peace convictions may be reversed on the ground that there
was either no evidence of guilt or South Carolina’s crime
breach of the peace is so indefinite as to violate the rule
of Edwards v. South Carolina, 372 U. S. 229, and other
similar cases.
19
A R G U M E N T
I.
Petitioners’ Convictions Enforce Racial Discrimina
tion in Violation of the Fourteenth Amendment to the
Constitution of the United States.
A. T he convictions en forced racial d iscrim in a tion
against pe tition ers.
Indisputably, petitioners’ convictions in each of these
cases (including the breach of the peace convictions in
Barr) rest upon and constitute racial discriminations
against them. In each case petitioners are Negro students
who sat at food service counters and tables insisting upon
service which was refused pursuant to the establishments’
racially exclusionary policies.
In the Bell case petitioners took seats at tables in
Hooper’s Restaurant on June 17, 1960. Hooper’s main
tained a policy of excluding Negroes (R. Bell 29). The
restaurant manager, Albert Warfel, whose direction peti
tioners were charged with disobeying (R. Bell 3), directly
acknowledged that they “were refused service solely on
the basis of their color” (R. Bell 30), and “for no other
reason” (id.). Indeed, it was stipulated that petitioners
“refused to leave at that time after being refused service
because of their race . . . ” (R. Bell 40).
In the Barr case petitioners took seats at a lunch counter
in the Taylor Street Pharmacy on March 16, 1960, and
were refused service and ordered to leave because they were
Negroes (R. Barr 23). It was the policy of the Taylor
Street Pharmacy not to serve Negroes in the lunch depart
ment (R. Barr 17).
20
In the Bouie case petitioners sat in a luncheonette booth
at Eckerd’s Drug Store on March 14, 1960. Eckerd’s wel
comed Negroes as customers in all its departments except
the lunch counter which, by the management’s policy, was
“closed to members of the Negro public” (R. Bouie 24).
The manager, Mr. Malone, acknowledged this policy of not
serving Negroes and said that no employee took petitioners’
food orders “because we didn’t want to serve them” (R.
Bouie 26). Strangely, at one point Malone refused to an
swer “why” he did not want to serve them and denied that
he “refused” them service because they were Negroes (R.
Bouie 26). This is on its face interpretable as an assertion
that he did not expressly “refuse” service; he immediately
afterwards said “I didn’t do anything” (id.). Other things
in the record amply confirm that the exclusion was purely
racial. The policy of not serving Negroes was expressly
admitted (R. Bouie 24); nothing in the record about peti
tioners’ conduct, dress, demeanor, or anything else even
suggests any nonracial basis for the exclusion; the arrest
ing officer readily acknowledged that race was the reason
the manager called him and ordered petitioners from the
store:
Q. Chief, isn’t it a fact that the only reason you were
called in from the Police Department to arrest these
two persons, was because they were Negroes who were
asking for service in the food department in Eckerd’s
drug store, and the manager was directing them out
because they were Negroes? Isn’t that correct?
A. Why certainly, I would think that would be the
case (R. Bouie 17).
The arresting officer said that the only reason Malone gave
for calling him was that “there were two colored boys back
there in the seat and refused to move . . . ” (R. Bouie 5).
21
The several South Carolina courts proceeded to decide the
case on express or implied assumptions that race was the
basis for the exclusion,4 and, indeed, the arguments made
in the State’s Brief In Opposition to Certiorari In Bouie
seem to rest on the same premise.5
Clearly, then, all three of these cases involve discrimina
tion based on color, “simply that and nothing more”
(Buchanan v. Warley, 245 U. S. 60, 73), and it is no longer
arguable that such discriminations by government are
valid. Racial discriminations have been held repeatedly to
violate the due process and equal protection clauses of
the Fourteenth Amendment and the due process clause
of the Fifth Amendment. Brown v. Board of Education,
347 U. S. 483; Bolling v. Sharpe, 347 IT. S. 497; Cooper
v. Aaron, 358 U. S. 1; Gossv. Board of Education, 373 U. S.
683; Peterson v. Greenville, 373 U. S. 244; cf. Colorado
Com. v. Continental Airlines, 372 U. S. 714.
4 The trial court’s oral ruling cited Williams v. Howard John
son’s Restaurant, 268 F. 2d 845 (4th Cir. 1959), a racial discrimi
nation case, to support its view that “any business has a right
to serve anybody and to refuse to serve anybody, be they white
or colored” (R. Bouie 21-22; cf. R. Bouie 51). The intermediate
tribunal, the Richland County Court, held that petitioners in this
and a companion case were “trespassers ah initio” because they
“had notice that neither store would serve Negroes at their lunch
counters” (R. Bouie 62), having previously said that “ . ._. the
proprietor can choose his customers on the basis of color without
violating constitutional provisions” (R. Bouie 59). The Supreme
Court of South Carolina rejected petitioners’ Fourteenth Amend
ment defenses merely by citing its prior decisions which held that
the operators of privately owned lunch counters could racially
discriminate and that the Fourteenth Amendment was no bar to
trespass prosecutions in such cases (R. Bouie 66).
5 The brief argues: “Such proprietor violates no constitutional
provision if he makes a choice on the basis of color.” (Brief in
Opposition to Certiorari, p. 3.)
22
B. T he em p lo ym en t o f th e sta te ju d ic ia l m ach inery ( in
association w ith p o lice and p ro secu to rs) to sanction
and en force th e racial d iscrim in a tion here show n,
con stitu ted a use o f sta te pow er w ith in the sense of
th e F ourteen th A m en dm en t.
There are a number of elements of state involvement in
these cases. These elements are complexly interrelated.
The “state action” issue need not turn on any one of them
in isolation, but may be resolved by consideration of their
interrelation; this is not a matter of softening the focus
but of widening the angle of vision. Nevertheless, analytic
clarity requires separate consideration of the several modes
of “state action” here found.
Petitioners first invoke, as clearly applicable, the doctrine
of Shelley v. Kraemer, 334 U. S. 1. Unless that case is to
be overruled (or, what is the same thing, irrationally “con
fined to its own facts”), it is settled law that there are
some cases in which the “state action” requisite for invoca
tion of the Fourteenth Amendment is to be found in the use
of the judicial power to enforce a privately-originated
scheme of racial discrimination.
It is unthinkable that Shelley is to be overruled. It has
been followed6 and approvingly cited in this Court.7 It is
unlikely that there is now much disagreement with its
broader principle; who, for example, would now think it
right to uphold the action of a state court in ordering
specific performance, by one restaurateur who wanted to
desegregate, of an agreement among all the restaurateurs
in a town to retain segregation! Yet such an injunction,
6 Trustees of the Monroe Avenue Church of Christ v. Perkins,
334 U. S. 813 (1948).
Barrows v. Jackson, 346 U. S. 249 (1953).
7 Hurd v. Hodge, 334 U. S. 24, 33 (1948).
Cooper v. Aaron, 358 U. S. 1,17 (1958).
23
absent the Fourteenth Amendment, would be well within the
equity categories governing the administration of the
private-law’ remedy of specific performance, as a state
might choose to develop them.
As Professor Henkin, one of the most thoughtful analysts
of Shelley has said: “Shelley v. Kraemer was not wrongly
decided. It is not a special case. It need not be rejected;
it need not be narrowly limited.” Henkin, “Shelley v.
Kraemer: Notes For A Revised Opinion,” 110 U. Pa. L.
Rev. 473, 491 (1962).
But if the Shelley principle has living force, it is hard
to see why it should not apply here. These cases are
stronger than Shelley. In Shelley, the state action immedi
ately involved consisted (aside from the furnishing of
recordation machinery) in keeping the courts open for the
filing of complaints that asked injunctive relief, in grant
ing such relief when asked by a private party, and in stand
ing by with the contempt machinery for use in the event
the private party might invoke that machinery. In these
cases, the police were either present in advance to assist
the proprietor in maintaining racial discrimination or acted
as formal witnesses to the warning, or both. (In the Barr
case, the collaboration of police went much further, and
furnishes an independent ground for reversal there; see
Part III-A, infra.) The public prosecutor, supported by the
public fisc, carried the cases to court. Most crucially, the
cases were criminal prosecutions, in which the state ap
pears as a party, in its own interest, in knowing support
of the discriminatory scheme, which it thereby sanctions
within the public order of its criminal law, and not merely
within the framework of its dealing with private rights.
The States of Maryland and South Carolina have taken
on these cases as their own from the first policeman’s
warning to the last argument in this Court; it must be a
24
paradoxical distinction indeed which could find “state
action” in the private-law umpiring performed by the state
in Shelley v. Kraemer, and not find it here.
Suggested distinctions, isolating these cases from Shelley,
make no sense. The South Carolina court, in its opinion in
Barr (R. 49) stressed that Shelley involved a willing pur
chaser and a willing buyer; but that distinction ignores the
complaining party in Shelley, the covenantee who was most
unwilling to lose the benefit of his covenant, and who never
theless was told that the Fourteenth Amendment forbade
its judicial enforcement. The suit in Shelley was brought
by a man asserting his own contractual and property right
to discriminate with respect to the race of his neighbors.
The principal relief asked of and granted by the state courts
was the exclusion of a Negro from a house on the applica
tion of the very person who claimed a contractual and prop
erty right to exclude him from that house. Shelley did not
primarily, if at all, involve a state court attempt to force
a seller to discriminate, but was an attempt at implementing
a right to discriminate claimed by the plaintiff.8
It has been urged that Shelley involved contract rights,
while these cases involve property rights; but this dis
tinction, aside from its obvious unviability in the robust
air of a constitutional context, is not even descriptively ac
curate, for the covenant that runs with the land creates a
kind of property interest, described in the state court’s
opinion in a companion case to Shelley, as “reciprocal nega
tive easements.” 9 Substantially, the right asserted in
Shelley was more weighty than that asserted here; if one
8 While the straw grantor was a nominal defendant in Shelley,
in McGhee v. Sipes, the companion case, the Negro owners were
the only defendants.
9 See record in U. S. Supreme Court in McGhee v. Sipes, 334
U. S. 1, No. 87, Oct. Term, 1947, p. 51.
25
really dislikes Negroes, having a Negro as a next-door
neighbor is more disagreeable than selling a Negro a sand
wich—or, more accurately, having to endure his sitting and
ordering a sandwich.
It is asserted that the state is not enforcing racial dis
crimination, but implementing a property right. The dis
tinction is a false one; the state is enforcing racial dis
crimination by implementing a property right, just as in
Shelley the state was enforcing racial discrimination by
implementing a contract right which was also a property
right.
The suggested distinctions totally fail, and “state action”
is to be found here squarely on the authority of Shelley v.
Kraemer, as well as by application of the sound principle
it illustrates. It is recognized that the thoroughgoing ac
ceptance of the Shelley principle might, unless means of
rational limitations are available, threaten the invasion of
those purely private objects of human life. Petitioners in
tend, in Part I-E, infra, to suggest to the Court readily
available means for preventing this result, by interpreta
tion of the substantive guarantees of the Fourteenth
Amendment.
C. T he sta te is in vo lved in th e acts o f racial d iscrim in ation
sanctioned in these cases, since they w ere p erfo rm ed
in obedience to a w idespread custom , w hich in tu rn
has been con firm ed and m ain tained by sta te law.
The petitioners’ substantive contention here rests on
nothing more farfetched than the proposition that the
formal acts of the state are to be traced to their natural
and probable consequences. The submission is that, where
the individual act of segregation is performed substantially
under the influence of a widespread public custom of segre
gation, and where this widespread public custom, has in
26
turn been substantially supported by formal state law,
then the act of segregation is infected with state power.
This proposition seems little more than a corollary of the
obvious truth that the state acts when its formal exertion
of power is causally traceable into the act complained of.
The unfolding of this proposition requires a few words.
First, its submission is that where the causal connection
of the segregation with custom is substantial, and not only
where that connection amounts to practical coercion, the
required nexus is present; similarly, where state law has
substantially supported the custom, of segregation, and not
only where it is the sole force behind that custom, state
action is traceable in the custom. These propositions are
conformed to the Civil Rights Cases statement that “some”
state action is enough (109 II. S. 3, 13) as well as with the
“significant extent” criterion in Burton v. Wilmington
Parking Authority, 365 U. 8. 715, 722, and will not seem
sui generis to anyone familiar with the ordinary rule as
to the liability of joint tort-feasors, or with other similar
rules in the common law.
Secondly, there is no principled reason for finding state
action only in those cases where state law presently in force
supports the segregation custom; states, like men, are to
be charged with the consequences of what they do, even
when those consequences follow after the act that produced
them is finished, or even repented. The maintenance for
generations of a de jure segregated regime has its conse
quences after the laws are changed, and the rules of “state
action” ought to give effect to this obvious social truth.
The purpose of tracing out this chain of causation is not
the penalization of the present state officials, but the resolu
tion of the issue whether in fact state power is a substantial
factor in the discrimination complained of.
27
Thirdly, it is not dispositive of the question of the causal
nexus between state law and state custom to show that
the segregation code of the state did not contain a provi
sion specifically commanding the very sort of segregation
involved in the case. A reasonably comprehensive segrega
tion code surely contributes to some extent to the likelihood
that segregation will be observed as a general custom even
where that code does not specifically command it.
It remains to deal with questions of burden of proof.
Two issues are important: (1) If it appears that a custom
of segregation exists, and that a proprietor segregates in
factual conformity to that custom, on whom should the
burden rest with respect to the issue of his being to some
extent influenced by the custom? (2) If it appears that a
custom, of segregation exists, and it further appears that
the state in question has in force or until recent times has
had in force a system of legal dispensations sanctioning
segregation, on whom should the burden rest with respect
to the issue of substantial causal connection between the
custom and that legal regime?
9 Wigmore, Evidence (3d ed., 1940) §2486, states the
general rule on the allocation of the burden of proof: “The
truth is that there is not and cannot be any one general
solvent for all cases. It is merely a question of policy and
fairness based on experience in the different situations.”
And, again, “ . . . [T]his apportionment depends ultimately
on broad considerations of policy . . . ” id., §2488.
It is not doubtful where these considerations lead, with
respect to the two numbered questions just put.
As to the first: It can surely be recognized by this Court,
as a broad fact of human nature, that men are rarely wholly
isolated from the settled customs of their communities, and
that the notion of a man’s acting in exact conformity to
28
custom, but without being influenced in any substantial way
by the existence of the custom, is virtually a paradox. If
this be doubted in the general case, surely it cannot be
doubted in the case of the proprietor catering to the public;
his business success (as one of the proprietors here testi
fied, K. Bell 32) may depend on his conformity to com
munity custom. And of course the business motive of
pleasing his customers by conformity is not a different
motive from conformity to custom, but that very motive
itself, in one of its varieties of incidence. Given these facts,
which it is hard to think anyone will care seriously to dis
pute, it is plain that the burden of proof, and a very heavy
one, ought to be placed on the asserter of the proposition
that some individual is that rara avis, a man who is in busi
ness catering to the public, and who factually conforms to
public custom, but who does so solely from self-generated
causes, and without any reference to the custom’s existence.
As the second numbered question, the case seems equally
plain, particularly in the light of the broad history of
segregation. There is good historic ground for the belief
that the segregation system was brought into being, or at
least licked into shape, by state law. See Woodward, The
Strange Career of Jim Crow (1957), 16-22, 81-85, 91-93,
et passim.10 Against that historic background, the issue is
10 Professor Woodward emphasizes the relative receney of ex
tensive segregation in America. Woodward, The Strange Career
of Jim Crow, vii-viii (1957). Even after the end of Reconstruc
tion the rigid system characteristic of later years had not become
the rule. During the early years after Reconstruction Negroes
were unsegregated in many public eating establishments in the
South (id. at 18-24). This was true of Columbia, S. C .; T. McCants
Stewart, a Negro, traveled throughout the South in April 1885
prior to the enactment of state laws requiring segregation of races
and wrote the following remarks about Columbia:
I feel about as safe here as in Providence, R. I. I can ride
in first class cars on the railroads and in the streets. I can
go into saloons and get refreshments even as in New York.
29
whether one should have to prove that custom was to some
extent the function of law aimed at structuring the custom,
or whether the opponent should have to prove that it was
not. It is clear that the total lack of such a causal relation
is the thing for which proof should be required. And it
should be especially noted that, in cases such as the pres
ent, the assertor of the proposition that no causal relation
exists between law and custom., that they have moved in a
Cartesian parallelism, is the very state that maintained the
legal provisions, now perceived to be unconstitutional, that
were aimed at shoring up the custom; surely something not
far from estoppel should at the least prevent the state’s
benefiting from the assumption that its own efforts were
vain, without even adducing proof. Cf. Peterson v. Green
ville, 373 U. S. 244, 248: “The State will not be heard to
make this contention in support of the convictions.” (Em-
I can stop in and drink a glass of soda and be more politely
waited upon than in some parts of New England (id. at 21).
Cf. also comments of Colonel Thomas Wentworth Higginson (id.
at 16-17).
The Jim Crow or segregation system became all-pervasive some
years later as a part of the aggressive racism of the 1890’s and
early 1900’s, including Jim Crow laws passed at that time, which
continued until an all-embracing segregation system had become
the rule (id. at Ch. II) . Professor Woodward writes:
At any rate, the findings of the present investigation tend
to bear out the testimony of Negroes from various parts of
the South, as reported by the Swedish writer Gunnar Myrdal,
to the effect that ‘the Jim Crow statutes were effective means
of tightening and freezing—in many cases instigating—segre
gation and discrimination.’ The evidence has indicated that
under conditions prevailing in the earlier part of the period
reviewed the Negro could and did do many things in the
South that in the latter part of the period, under different
conditions, he was prevented from doing (id. at 90-91).
As late as 1895 and 1898 opposition to state attempts to in
troduce racial legislation in South Carolina prevailed. See the
comments of the editor of the Charleston News and Courier (id.
at 49-50), as well as those of Tom Watson (id. at 73).
30
phasis supplied.) Cf. Mr. Justice Harlan’s concurrence in
the same case, 373 U. S. at 252.
i f these substantive and evidentiary principles are right,
their application to the instant cases is plain. This Court
will hardly require citation to the propositions that South
Carolina has a public custom of segregation of the races,
and has fostered and maintained that custom by law.11 For
South Carolina now to deny that segregation is at least
in substantial part her doing is to assert that the deepest
policies and most comprehensive laws of the state have
been mere works of supererogation. The state ought at
least be required to prove such a strange assertion, and
the record is barren of such proof. What proof there is
tends in the other direction; asked about his store’s segre
gated policy, the manager in Bouie at one point did not
immediately answer directly, but instead gave a reply
which he obviously believed responsive because explana
tory, “I would say that all stores do the same thing” (E.
26). In Barr, the co-owner and actual manager (R. 16)
11 State law requires segregation at circuses and traveling shows
(Code of Laws of South Carolina Ann. §5-19 (1962)) • in prisons
and chain gangs (S. C. Code §55-1 (1962)); on steam ferries
(S. C. Code §§58-714, 58-715, 58-718-720 (1962)); in carrier sta
tion restaurants or eating places (S. C. Code §58-551 (1962)) ; on
streetcars, where Negroes are to be seated in the rear (S. C. Code
§58-1331 (1962) and, when standing are to be kept as far from
whites as practicable (S. C. Code §58-1332 (1962)); on buses
(S. C. Code §58-1491 (1962)—held unconstitutional in Flemming
v. South Carolina Electric and Gas Co., 224 F.2d 752 (4th Cir.
1955) appeal dismissed 351 U. S. 901) ; in State parks (S. C. Code
§51-2.1 to 2.4 (1962)—held invalid in Brown v. South Carolina
Forestry Commission, (E. D. S. C., C. A. July 10, 1963). South
Carolina announced that it would close its parks rather than
desegregate, N. Y. Times, August 21, 1963, p. 24, col. 2.) ; in
textile factories (S. C. Code §40-452 (1962)) ; and in schools (S. C.
Code §21-751 (1962) ; Constitution of South Carolina, Article 11
§7—both held invalid in Briggs v. Elliott, (Brown v. Board of
Education), 347 U. S. 483).
31
testified that his “personal reasons” were not involved in
the ease (R. 20), leaving nothing but custom as a de
terminant of his actions. On the whole, there is nothing
whatever in the South Carolina cases to rebut the natural
inference, from the roughest knowledge of the recent and
remote history of that state, that segregation in public
places, such as those involved in the petitioners’ convic
tions, takes place in South Carolina substantially because
a state-wide public custom, massively supported by state
laws abandoned only under pressure,12 commands that it
shall take place.
The Maryland case is concededly less crushingly obvious,
but petitioners submit that it too falls within the principles
contended for. The record in that case is absolutely clear
in establishing that the segregation in question took place
solely in obedience to custom, and much against the per
sonal wishes of the proprietor (K. 32). The 1957 Annual
Eeport of the Commission on Inter-racial Problems and
Relations to the Governor and General Assembly states
that 91% of all public facilities in Baltimore exclude or
segregate Negroes (p. 13). In 1962, the same Commission’s
Eeport was to the effect that change had been “slow and
inconsistent.” In 1937, the Court of Appeals of Maryland
held that “separation of the races is normal treatment in
this state”, Williams v. Zimmerman, 172 Md. 563, 192 Atl.
353 (1937). Maryland, a slave-holding state, had until
fairly recent times many Jim Crow provisions comparable
to those of other southern states.13
12 yjjg required pressure is sometimes of nearly geologie dura
tion and intensity; on April 5, 1962, the City of Greenville arrested
and charged a Negro with the crime of living in a “white block”.
{City of Greenville v. Robinson, Arrest and Trial W arrant No.
179); Cf. Buchanan v. Warley, 245 U. S. 60 (1917).
13 Maryland statutes concerning segregation in the state school
system have not yet been repealed. There must be separate state
32
It should he made clear that no one is charging the
present regime in Maryland with wrongdoing, with re
spect to segregation by statute or ordinance. The submis
sion is altogether different; it is simply that where a state
has, until times so recent as to fall within the formative
years of people now in their prime, maintained a Jim
Crow regime by law, and where the Jim Crow custom has
hung on for the historically brief period since the legal
regime began to wither, the probability of there being some
causal nexus between the laws and the custom is so over
whelming that it is utterly unreasonable to allow the state,
without proof, to enjoy, in a criminal ease, the benefit of
the implausible assumption that no such causal nexus
exists.
Finally, it should be said that even if (as petitioners
contend is not the case) either the state-created custom or
the use of state police, prosecutor, attorney-general and
courts (Point I-B, supra) be in itself an insufficient ele
ment of state action, nevertheless, in co-action, they are
indisputably sufficient. These records, in a social context
that is a matter of common knowledge, present the picture
colleges (Ann. Code of Maryland, Article 65A, §1 (1957)); in
dustrial schools (Md. Code, Article 77, §226 (1957)); normal
schools (Md. Code, Article 77, §279 (1957)); juvenile reform
schools (Md. Code, Article 27, §655, Article 78A, §14 (1957)) —
held unconstitutional in Myers v. State Board of Public Welfare,
224 Md. 246, 167 A. 2d 765 (1961) ; and separate scholarship
grants (Md. Code, Article 49B, §5 (1957)). Miscegenation is still
a criminal offense (Md. Code, Article 27, §398 (1957)). As late
as 1951, a Maryland statute required segregation on railroads and
steamboats (Md. Code, 1939, Article 27, §510-526, repealed by
Laws of Maryland, 1951, C. 22). Maryland was a party to the
Southern Regional Education Compact, a measure designed to
foster segregated education within the “separate but equal” frame
work. See Md. Code, Art. 41, §§185-188; see McCready v. Byrd,
195 Md. 131, 73 A. 2d 8 (1950). Hospital segregation was sanc
tioned by a 1939 provision, Md. Code, 1939, Art. 59, §§61-63.
33
of a segregation performed in obedience to a custom which
is at least in substantial part a creature of state law; the
action so motivated is then supported and enforced by
prosecutions conducted by state officials, and by convictions
in state courts. If “state action” is not to be found in such
cases, then the “state action” concept has suffered some
weird transformation from the coordinates of reality, and
can be of no use in the process of adjusting constitutional
interests. One need not doubt what the judgment of his
tory will be on the proposition that the political power of
the former segregating states is to no significant degree
engaged in the present struggle.
In Part I.—E., infra, petitioners will suggest to the
Court that sound principles in the interpretation of the
substantive guarantees of the Fourteenth Amendment, and
not untenable refinements in the concept of “state action”,
are the apt means to keeping inviolate the genuinely pri
vate life of man.
D. The sta te has here den ied equal p ro tec tion of the laws, by
m aintain ing a reg im e of laws w hich fails to fu rn ish such
p ro tec tio n to pe titio n ers , and w hich instead subordinates
th e ir cla im o f equ a lity in pu b lic l i fe to a narrow and tech
nical p ro p e r ty claim .
It is true that the Fourteenth Amendment applies only
to those actions in which state power is to some significant
degree engaged. But one of the things the state may not
do is “deny . . . equal protection of the laws.” An obliga
tion not to “deny” protection is an obligation to furnish
protection, to maintain a regime of law under which equal
protection is enjoyed.
It is petitioners’ submission that this obligation is
breached by the state, when, far from maintaining such a
regime, the state instead maintains a regime of law which
gives paramount place to a narrow property claim here as-
3 4
serted with respect to premises in all senses but one open
to the general public, and visits with criminal penalties the
petitioners’ attempts to protest and peacefully to resist the
inconvenience and humiliation they suffer from their ex
clusion from the normal incidents of membership in the
community.
With full knowledge (see Part I.—A., supra) that a racial
discrimination was being sanctioned, the highest courts of
Maryland and South Carolina, construing and applying
statutes passed by their respective legislatures, have made
an affirmative election between the values asserted in these
cases, and have determined that, as a matter of state law,
the value represented by the claim to exclude Negroes is
to be preferred to that underlying the Negroes’ claim to
equal treatment in public facilities.
It is argued for the states that this is a neutral de
cision, that the courts have merely declared the common law,
and neutrally furnished a legal framework to enforce the
property rights to discriminate racially. It is argued that
“at common law” restaurateurs could racially discriminate,
and that, since no statute has changed this, they still can
—the courts merely announcing these principles of law as
they find them.
But modern American jurisprudence teaches that the
states are as much the authority for, and as much respon
sible for, their common law rules as they are for their
legislation; there is no “transcendental body of law outside
of any particular State but obligatory within it unless and
until changed by statute.” Erie R. Co. v. Tompkins, 304
U. S. 69, 79, settled all that, and finally vindicated Mr. Jus
tice Holmes’ earlier dissents, where he had said:
“The common law so far as it is enforced in a state,
whether called common law or not, is not the common
35
law generally but the law of that state existing by
the authority of that state without regard to what it
may have been in England or anywhere else.” Black
<& White T. & T. Co. v. Brown & Yellow T. & T. Co.,
276 U. S. 518, 533-34 (Holmes, J., dissenting).
“The law of a state does not become something out
side of the state court, and independent of it, by being
called the common law. Whatever it is called, it is the
law as declared by the state judges, and nothing else.”
Kuhn v. Fairmont Coal Co., 215 U. S. 349, 372 (Holmes,
J., dissenting).
And, of course, a state’s formal adoption of the common
law of England, as with Maryland’s Constitution (Declara
tion of Eights, Article 5), confirms the formal equivalence
of common law with statutory or state constitutional rules.
When a state acts by its legislature or its courts to
promulgate rules of law affecting the competing claim of its
citizens it must work its will within the limitations of state
power imposed by the Fourteenth Amendment. Shelley v.
Kraemer, 334 U. S. 1, 22, and Marsh v. Alabama, 326 IJ. S.
501, 505-56, both rest on this premise. It is conventional
doctrine that rules of law declared by a state’s judiciary
to be the common law are just as much subject to the re
straints of the Fourteenth Amendment as are legal rules
embodied in legislation. This Court has frequently found
denial of Fourteenth Amendment rights in judicially
erected substantive rules. See American Federation of
Labor v. Swing, 312 IJ. S. 321; Cantwell v. Connecticut, 310
U. S. 296; Bridges v. California, 314 U. S. 252; Edwards v.
South Carolina, 372 IJ. S. 229.
It is clear that the states have acted in resolving the con
flicting claims being asserted here; it was inevitable that
36
they prefer one claim or the other or else leave the parties
in conflict. If the state law, common or statutory, declared
and effected a preference subordinating petitioners’ rights
to, say, the general associational preferences of the white
community, and made it unlawful for a Negro to enter a
“white” restaurant at all events without regard to the
proprietor’s wishes, such a choice (which is the very one
embodied in some state statutes and city ordinances) would
be obnoxious to the Fourteenth Amendment. See Peterson
v. Greenville, 373 U. S. 244. But the state’s interest in the
psychological comfort of some of its citizens, and the state’s
interest in the enforcement of the property rights of some
of its citizens are not of different genera. At the very least
in the case of a criminal prosecution (though the limitation
is unnecessary), the state chooses to infringe the one in
terest in furtherance of the other. The indictment in Bell,
in its preservation of the old “peace and dignity” form,
bears on its face the acknowledgment of state choice and
state interest which alone justifies the imposition of any
public sanction (R. 3). But no archaic form is needed to
warrant the conclusion that where a state acts to protect
one claimant as against another, it has itself determined
the values of their respective claims, in the framework
of its own public order.
The determination of the ranking to be given the interests
asserted by the members of society, and hence of the legal
sanctions to be applied in adjusting these interests, is in the
general case the business of the states. But the Fourteenth
Amendment overrides such of the state’s choices as
violate its terms. Where the choice ranks some asserted
public interest above the interest in public racial equality,
“equal protection of the laws”, in the sense settled once for
all in The Slaughterhouse Cases, 83 U. S. (16 Wall.) 36,
70-73, and in Strauder v. West Virginia, 100 TJ. S. 303, 306,
is not afforded, which is to say it is “denied”.
37
All the purely public considerations which states could
bring forward to justify their sanctioning of a racist re
gime have now been seen to be insufficient to support such
state action, as against the Fourteenth Amendment. Bu
chanan v. Warley, 245 U. S. 60; Brown v. Board of Educa
tion, 347 U. S. 483. It would be strange indeed if the state’s
interest in maintaining a narrow “property” right, which
consists in nothing but the exclusion of Negroes, were to
be found sufficient to justify a state in the knowing support
of public racial discrimination. “Property” is in the regime
of law, and is for all practical purposes the creature of
law. As petitioners will copiously illustrate in Appendix A,
the subjection of property to regulation, in the name of
competing claims, is a massive part of our legal system.
The state acts in one of its most characteristic ways, stretch
ing from the law of nuisance to the law of fire-exits, when
it determines where the limits on “property” rights shall
be set, or, conversely, what sanction shall be put behind
asserted “property” rights, and on what showing.
The regulation of the access of citizens to places of pub
lic accommodation is also a regular and normal part of
the business of civilized regimes of law. Thirty states
forbid racial discrimination in places of public accommo
dation and this type of regulation invades no constitu
tionally protected property rights.14 Railway Mail Ass’n
14 Cal. Civil Code, §§51-52 (Supp. 1961); Colo. Eev. Stat. Ann.
25-1-1 et seq. (1953); Conn. Gen. Stat. Eev. §53-35 (Supp. 1961);
D. C. Code §47-2901 et seq. (Supp. 1960) ; Idaho Acts 1961, c. 309;
Illinois, Smith-Hurd Ann. Stat., Criminal Code of 1961, Article 13;
Indiana Stat. Ann. §§10-901, 10-902 (Supp. 1962) ; Iowa Code
Ann. §735.1 (1950) ; Kansas Gen. Stat. Ann. §21-2424 (1949) ;
Maine Eev. Stat., c. 137, §50 (Supp. 1959) ; Maryland Ann. Code,
Art. 49B, §§11-15 (Acts 1963, c. 227, c. 228) (applicable only to
certain counties) ; Mass. Gen. L., c. 272, §§92A, 98 (1956); Mich.
Stat. Ann. §28.343 (Supp. 1959) ; Minn. Stat. Ann. §327.09 (1947) ;
Mont. Eev. Codes §64-211 (Supp. 1961); Neb. Eev. Stat. §§20-101,
38
v. Cor si, 326 U. S. 88; Western Turf Asso. v. Greenberg,
204 U. S. 359.
Moreover, virtually nowhere in the British Common
wealth or in the Western European democracies would the
State find petitioners guilty of a crime if they committed
within those jurisdictions the acts for which they have
been brought to bar in Maryland and South Carolina.15
(Notably, however, South Africa has the same rule as
102 (1943) ; N. H. Rev. Stat. Ann. §354.1 (Supp. 1961) ; N. J.
Stat. Ann. §§10:1-2 to 10:1-7 (I960); N. M. Stat. Ann. §§49-8-1
to 49-8-6 (Supp. 1961) ; N. Y. Civil Rights Law §40 (1948),
Executive Law, §§292(9), 296(2) (Supp. 1962); N. D. Cent. Code,
§12-22-30 (Supp. 1961); Ohio Rev. Code §4112.02 (G) (Supp.
1961) ; Ore. Rev. Stat. §§30.670-.680, as amended by L. 1961 e.
247; Pa. Stat. Ann. Tit. 18, §4654, as amended by Act No. 19
(1961) ; R. I. Gen. Laws §§11-24-1 to 11-24-6 (1956); S. D. Acts
1963, Senate Bill No. 1, Jan. 30, 1963; Yt. Stat. Ann., Tit. 13,
§§1451, 1452 (1958); Wash. Rev. Code, §§49.60.040, 49.60.215
(1962) ; Wis. Stat. Ann. §924.04 (1958), as amended (Supp. 1962) ;
Wyo. Stat. §§6-83.2 (Supp. 1961).
16 Insofar as can be ascertained, in the leading countries of the
European continent, sit-ins of the type involved in the ease at bar
would not constitute criminal offenses. Since careful search of
the jurisprudence has failed to disclose a single decided case or
other authoritative source dealing with discrimination against Ne
groes or other racial groups in circumstances similar to those
presented here, no authority squarely in point can be cited. How
ever, principles of law well-established in those countries warrant
the conclusion that a peaceable sit-in by a Negro would not con
stitute a crime. On the contrary, rather than punish the peaceable
Negro sit-in, most, if not all, of these nations, including such
prominent countries as France and Italy, grant him a right, pro
tected by either civil or criminal sanctions or both, to be served
and otherwise to make use of the facilities of the public accom
modations to which he has gained entry.
In the Commonwealth nations there are also no reported cases
of what here are called “sit-ins” in public restaurants. In these
nations there are criminal trespass and related statutes which, for
various reasons, as will appear, would be inapplicable to a “sit-in”
situation. Moreover, in four Commonwealth nations and parts of
another, discrimination is forbidden by law.
For a country-by-country analysis, see Appendix B.
39
respondents.) This near universal experience in nations
that share onr values is particularly pertinent in applica
tion of the Fourteenth Amendment which deals with those
“personal immunities ‘so rooted in the traditions and con
science of our people as to he ranked as fundamental’
. . . or are ‘implicit in the concept of ordered liberty.’ ”
Rochin v. California, 342 U. S. 165, 169. This subject is,
unlike the identity of one’s dinner guests, a subject with
which law may be expected to deal, a ubiquitous component
of the modern legal regime. And the direction in which
the laws of the great majority of other states and coun
tries have dealt with the subject shows conclusively that,
in claiming immunity from being penalized for entering
public places, petitioners are not claiming icing on the
cake, but the common daily bread of law’s protection, as
enjoyed virtually everywhere but in the American South
and in the Union of South Africa.16
16 The integration of the subject of treatment in public accom
modations into the whole regime of law, as well as the inelucta
bility of the state’s making policy choices in this area, is well
illustrated by the recent history, in Maryland, both of this subject
and of the very statute under which the petitioners in Bell were
convicted. One June 8, 1962, the Mayor and City Council of
Baltimore passed an ordinance providing for equal treatment in
places of public accommodation, with some exceptions. Proprietors
of certain affected establishments filed suit to invalidate this or
dinance on the ground, amongst others, that it infringed the very
Article 27, §577 (the “trespass” law) under which petitioners were
convicted. A lower state court upheld this contention (Karson’s
Inn, Inc. v. Mayor and City Council of Baltimore (Baltimore
Superior Court Case No. 1962/990/74578)); the City’s appeal is
still pending (Md. Ct. of Appeals, 1963 Docket, No. 29). Meanwhile,
the Maryland legislature has amended Section 577 so as to pre
vent its application in this manner, but only as to the City of
Baltimore, the following proviso having been added at the end
of §577:
Provided, however, that nothing contained herein shall pre
clude the Mayor and City Council of Baltimore from enacting
legislation making it unlawful or prohibitory to refuse, with
hold from or deny to any person because of his race, creed,
40
When one looks at the matter from the side of peti
tioners, it is evident that the state’s duty of minimal pro
tection has been grossly breached. The refusal of service
in places of public accommodation is physically a nagging
inconvenience and morally a humiliation; no de minimis
considerations shield the state from the imputation here of
failure to maintain a regime of law that does not flagrantly
“deny . . . equal protection” to petitioners.
The force of this argument is greatly augmented by
recurrence to the basic symmetries of social obligation.
The states of South Carolina and Maryland are not pro
posing that the petitioners be exempted from taxation,
or from the duty to obey the general criminal law. Some
of the petitioners are liable to military service, and may
even have to risk their lives to keep safe the cities of
Columbia and Baltimore, Emotion-fraught though they
be, these facts are a part of the framework within which
one must construe the Fourteenth Amendment obligation
of South Carolina and Maryland to maintain legal regimes
which do not “deny” to petitioners the equal “protection”
of the laws. The scope of affirmative “protection” required
ought not, as a matter of sound interpretation, be less
than what is decent in face of the fact that the heaviest
color or national origin any accommodations, advantages, fa
cilities or privileges of any place or places whose facilities,
accommodations, services, commodities or use are offered to or
enjoyed by the general public, either with or without charge.
(House Bill No. 391, Chap. 453, Acts of 1963.)
(Cf. Maryland’s New Public Accommodations Law, Md. Acts
1963, e. 227, c. 228.)
A seemingly “neutral” trespass statute which cuts deep enough
to impede the solution by a city of its own public accommodations
problem can hardly be characterized as genuinely neutral. But the
deeper lesson is that in the struggle between those who would
extend to all citizens equal rights in public places and those who
would deny them the state cannot be neutral, but does inevitably
make an election of the values which it is to support.
41
duties of citizenship, as well as the privileges of that status,
were placed upon petitioners by the Fourteenth Amend
ment. Far from decent, it is scandalous that states impos
ing the burdens of state citizenship on Negroes, and bene
fiting from the imposition on them of the duties of federal
citizenship, not only should fail to protect them in their
right to be treated equally in fully public places, but should
instead place the weight of law behind their humiliation.
It is useful to recall that this Court has long recognized
that certain crucial abdications of governmental power—
sometimes explained as affirmative decisions by government
not to act—can make government responsible in the Four
teenth Amendment sense. The several opinions in Terry v.
Adams, 345 IJ. S. 461, interpreting the “state action” re
quirement of the Fifteenth Amendment reflect this.17 So
17 Justice Black (with Justices Douglas and Burton), 345 U. S.
at 469:
“For a state to permit such a duplication of its election
processes is to permit a flagrant abuse of those processes to
defeat the purposes of the Fifteenth Amendment. . . . It
violates the Fifteenth Amendment for a state, by such cir
cumvention, to permit within its borders the use of any device
that produces an equivalent of the prohibited election.”
Justice Frankfurter, 345 U. S. at 473:
“The application of the prohibition of the Fifteenth Amend
ment to ‘any State’ is translated by legal jargon to read
‘State action.’ This phrase gives rise to a false direction in
that it implies some impressive machinery or deliberative
conduct normally associated with what orators call a sov
ereign state. The vital requirement is State responsibility—
that somewhere, somehow, to some extent, there be an infusion
of conduct by officials, panoplied with State power, into any
scheme by which colored citizens are denied voting rights
merely because they are colored.”
At 345 U. S. 475:
“The State of Texas has entered into a comprehensive scheme
of regulation of political primaries, . . . . If the Jaybird Asso
ciation, although not a political party, is a device to defeat
the law of Texas regulating primaries, and if the electoral
officials, clothed with State power in the county, share in that
42
does the majority’s opinion in Burton v. Wilmington Barr
ing Authority, 365 U. S. 715, 725.18 In the Burton case
Justice Stewart’s concurring opinion and the two dissents
also embrace something of this notion when they state that
a state law which sanctioned racial discrimination by res
taurateurs in plain words would violate the Amendment.19
This view underlies McCabe v. Atchison, Topeka <& 8. F.
Ry. Co., 235 U. S. 151, where the Court invalidated a state
law which merely sanctioned but did not require a carrier’s
discriminatory policy. See also, Public Utilities Commis<-
sion v. Poliak, 343 U. S. 451.
The affirmative thrust of the Amendment and the notion
that failures to protect are embraced by the Amendment is
clearly seen in opinions which found violations of the Civil
subversion, they cannot divest themselves of the State au
thority and help as participants in the scheme.”
And at 345 U. S. 477:
“The evil here is that the State, through the action and ab
dication of those whom it has clothed with authority, has
permitted white voters to go through a procedure which pre
determines the legally devised primary.”
Mr. Justice Clark (with Chief Justice Vinson and Justices Eeed
and Jackson), 345 U. S. at 484:
“Consonant with the broad and lofty aims of its Framers, the
Fifteenth Amendment, as the Fourteenth, ‘refers to exertions
of state power in all forms.’ Accordingly, when a state struc
tures its electoral apparatus in a form which devolves upon
a political organization the uncontested choice of public offi
cials, that organization itself, in whatever disguise, takes on
those attributes of government which draw the Constitution’s
safeguards into play.”
18 “But no State may effectively abdicate its responsibilities
by either ignoring them or by merely failing to discharge them
whatever the motive may be. . . . By its inaction, the Authority,
and through it the State, has not only made itself a party to
the refusal of service, but has elected to place its power,
property and prestige behind the admitted discrimination.”
(365 U. S. at 725.)
19 365 U. S. at 726-727, 729.
43
Eights laws when policemen stood aside while mobs at
tacked their prisoners (Lynch v. United States, 189 F. 2d
476 (5th Cir. 1951), cert. den. 342 U. S. 831), or unpopular
religious workers (Catlette v. United States, 132 F. 2d 902
(4th Cir. 1943)).
In Mapp v, Ohio, 367 U. S. 643, it was maintained by the
State that its courts had not affirmatively sanctioned police
incursion into constitutional guarantees of privacy and
that, therefore, its courts were not to be held accountable
for the violation of those guarantees. But this Court held
the state court proceedings to be violative of the due process
clause because the state court had ruled admissible evidence
seized as the fruit of an unconstitutional search; the state
court had failed adequately to protect the individual’s
privacy. In overruling Wolf v. Colorado, 338 U. S. 25, and
thereby making the federal exclusionary rule applicable to
the states, Mr. Justice Clark said:
[W]e note that the second basis elaborated in Wolf in
support of its failure to enforce the exclusionary doc
trine against the states was that “other means of pro
tection” have been afforded the right of privacy. The
experience of California that such other remedies have
been worthless and futile is buttressed by the experience
of other states. The obvious futility of relegating the
Fourth Amendment to the protection of other remedies
has, moreover, been recognized by this court since
Wolf. 367 U. S. at 651-652.
It is submitted that this reasoning is applicable to the
instant cases. That is, when a state court, as here, fails to
adequately protect the right to be free from racial discrimi
nation, it is responsible for that discrimination, just as the
state court which failed to adequately protect the right to
privacy was responsible for its violation.
44
Nor is this all. In Mapp, it was pointed out by Justice
Clark that the state court, in admitting such tainted evi
dence, was subverting judicial integrity. A court must not
remain aloof to the methods which bring evidence to its
doors. Neither, it is submitted, may it blind itself to the
consequences of its decisions. There is a right to equality:
“we can no longer permit that right to remain an empty
promise.” 20
In Griffin v. Illinois, 351 U. S. 12, it was contended by
the state that because an indigent criminal defendant could
not afford a costly transcript necessary for appellate re
view was no reason to charge the state with discrimination
against the poor. But this Court disagreed and held that
the rule, although nondiscriminatory on its face, was grossly
discriminatory against the poor in its operation. This rea
soning is applicable; it is no answer to say that the tres
pass law applies equally to whites and blacks, just as it
was no answer in Griffin to say that the rule there applied
equally to rich and poor. Classically, it is no answer to say
that “The law, in its majestic equality, forbids the rich as
well as the poor to sleep under bridges, to beg in the streets,
and to steal bread” (351 U. S. at 23). Cf. Shelley v.
Kraemer, 334 U. S. 1, 22.
The operation of this trespass law is to enforce and
effectuate racial discrimination, and the fact that the law
on its face does not command racial discrimination must
not mislead.
The opinion in the Civil Rights Cases, 109 U. S. 3, lends
support to the notion that states are responsible for some
failures to provide a legal system which protects against
discrimination. How else can the importance the court at
tached to the assumption that the state laws would furnish
20 3 67 U. S. at 660.
45
redress against denial of equal access to inns and common
carriers be explained?21 Similar overtones appear in
United States v. Cruikshank, 92 U. S. 542, 554-555.22 The
legislative debates at and around the time of adoption of
the Fourteenth Amendment assure us that these notions
21 “We have discussed the question presented by the law, on
the assumption that a right to enjoy equal accommodation and
privileges in all inns, public conveyances and places of public
amusement, is one of the essential rights of the citizen which no
State can abridge or interfere with. Whether it is such a right
or not, is a different question, which, in the view we have taken
of the validity of the law on the ground already stated, it is not
necessary to examine. (109 U. S. at 19.)
Can the act of a mere individual, the owner of the inn, the
public conveyance or place of amusement, refusing the accommo
dation, be justly regarded as imposing any badge of slavery or
servitude upon the applicant, or only as inflicting an ordinary
civil injury, properly cognizable by the law7s of the State, and
presumably subject to redress by those laws until the contrary
appears. (109 U. S. at 24.)
Innkeepers and public carriers, by the laws of all the States,
so far as we are aware, are bound, to the extent of their facilities,
to furnish proper accommodation to all unobjectionable persons
who in good faith apply for them. If the laws themselves make
any unjust discrimination, amenable to the prohibitions of the
Fourteenth Amendment, Congress has full power to afford a rem
edy, under that amendment and in accordance with it. (109 U. S.
at 25.)”
22 “The Fourteenth Amendment prohibits a State from denying
to any person within its jurisdiction the equal protection of the
laws; but this provision does not, any more than the one which
precedes it and which we have just considered, add anything to
the rights "which one citizen has under the Constitution against
another. The equality of the rights of citizens is a principle of
republicanism. Every republican government is in duty bound
to protect all its citizens in the enjoyment of this principle, if
within its power. That duty was originally assumed by the States;
and it still remains there. The only obligation resting upon the
United States is to see that the States do not deny the right.”
(Emphasis supplied.)
And cf. United States v. Hall, 26 Fed. Cas. 79, 81 (No. 15,282;
1871).
46
of the affirmative thrust of the Amendment were not judi
cial inventions.23
Petitioners have here contended that the Fourteenth
Amendment imposes an affirmative obligation on the State
to ensure “equal protection of the laws”. It is obvious that
federal judicial enforcement of that affirmative obligation
would raise difficult questions which need not be broached
23 For example, Rep. Wilson of Indiana in debates on the En
forcement Act of April 20, 1871, 17 Stat. 13, argued that the
states were under an obligation to assure equality and that failure
to do so was a denial of equal protection:
“1. The provisions ‘no State shall deny’ and ‘Congress shall
have power to enforce’ mean that equal protection shall be
provided for all persons.
2. That a failure to enact the proper laws for that purpose,
or a failure to enforce them, is a denial of equal protection.
3. That when there is such a denial Congress may enact laws
to secure equal protection.”
Cong. Globe, 42nd Cong., 1st Sess. 483 (1871).
Representative Lawrence in debates on the Civil Rights Act of
1875 stated: “What the State permits by its sanction, having the
power to prohibit, it does in effect itself.” Cong. Rec., 43d Cong.,
1st Sess. 412 (1874).
Senator Pool in debates on the Enforcement Act of May 31,
1870, 16 Stat. 140, argued that:
. . . but to. say that it shall not deny to any person the equal
protection of the law it seems to me opens up a different
branch of the subject. I t shall not deny by acts of omission,
by a failure to prevent its own citizens from depriving by
force any of their fellow-citizens of these rights. Cong. Globe,
41st Cong., 2d Sess. 3611 (1870).
Other contemporary Congressmen also suggested that state in
action may be as culpable as action. In a speech delivered by
Representative Bingham of Ohio, the framer of the key phrases
in Section One, it was repeatedly stated that the Fourteenth
Amendment granted Congress the power to act on individuals and
could provide relief against the denial of rights by the states
whether by “acts of omission or commission.” Appendix to the
Cong. Globe, 42d Congress, 1st Sess. 85. Representative Coburn
of Indiana said that a state could deny equal protection by failing
to punish individuals violating the rights of others. Cong. Globe,
42d Congress, 1st Sess. 459.
47
here. The Court may be obliged to leave the states “a wide
area of . . . constitutional discretion” in fashioning means
to fulfill the duty of equal protection. Griffin v. Illinois,
351 U. S. 12, 20, 24. The definition of the measure of a
state’s affirmative obligation might even be outside judicial
competence, and the obligation might have to be left, at
least in some circumstances, inchoate and moral only. (Cf.
Kentucky v. Dennison, 65 U. S. (24 How.) 66, where an
affirmative federal constitutional duty was found clearly
to exist, but federal judicial enforcement was found unprac
tical.) It might be that the measure of state affirmative
obligation would have to be made specific, and hence judi
cially manageable, by Congress, acting under §5 of the
Fourteenth Amendment. Under that section, doubtless,
Congress might either require the states to afford appro
priate judicial remedies (see Testa v. Katt, 330 U. S. 386),
or, under a broad reading of its power to “enforce”, provide
federal remedies to fill the gaps of state inaction.
None of these questions need give trouble here. If the
state has an obligation, however shadowy of contour with
respect to affirmative remedies, to maintain a legal regime
in which Negroes are not “denied protection” in their claim
to be treated as equal members of the community, then the
state is a fortiori under an obligation not to put its criminal
law machinery in motion in the opposite direction, and the
reversal of the judgments here is clearly called for.
Petitioners recognize that in order to find state action on
the basis urged in this portion of the brief it is necessary to
discard a part of the holding in the Civil Rights Cases, 109
U. S. 3. The argument does not challenge the basic pro
nouncement of the Civil Rights Cases that the Fourteenth
Amendment is addressed to state governments and not to
individuals and that some state involvement is necessary.
But it does challenge the holding that states are not con-
48
stitutionally responsible for—and that the Fourteenth
Amendment does not reach or allow Congress to reach—
racial discrimination in privately owned business premises.
It is recognized that the principal difficulty about the
present argument is the problem of its limitation within
manageable bounds. It is in the tradition of our legal
system that the process of such limitation must proceed case
by case. Nevertheless, petitioners submit that the very
phrase, “equal protection of the laws”, suggests a limitation
to matters commonly dealt with by law, as, for example,
the choice of guests in the home is not. Further, the whole
thrust of the Fourteenth Amendment is toward the public-
life. The general problem of the placing of principled
limitation on the impact of the Amendment, even under the
theories of “state action” so far argued, will be taken up
in the section immediately following.
E. The theories o f “ sta te action” urged by p e tition ers in the
forego in g argum ents need n o t resu lt in the sub jec tion of
the p riva te l ife of individuals to the norm s of the Four
teen th A m en dm en t.
Petitioners have urged, in application to the facts of
these cases, that “state action” is to be discerned in the
following circumstances:
1. Where the formal organs of state power (as
courts or the executive) are employed to enforce a
scheme of racial discrimination originating in a nom
inally “private” choice (I-B).
2. Where a nominally “private” act or scheme of
racial discrimination is performed, in significant part,
because of the influence of custom, and where such
custom has been, in turn, in significant part, created
or maintained by formal state law (I-C).
49
3. Where the state maintains a regime of law which,
in its net operation, places a higher value on some as
serted contractual or property claim than it places on
the claim to move about free from the inconvenience
and humiliation of racial discrimination (I-D).
None of these theories is strained or paradoxical. The
first, is the seasoned law of Shelley v. Kraemer, 334 U. S.
1, but if it were a new proposition it would amount to
no more than the assertion that the state “acts” when its
formal organs act, and that it then “acts” to that end
which is the intended and natural result of their action—
a proposition near to truism. The second applies to “state
action” ordinary theories of causation, and merely attrib
utes to the state the effects in society of its formal acts—
an attribution again more susceptible to the imputation
of truism than to that of paradox. The third, interpreting
literally the state’s obligation not to “deny . . . equal pro
tection of the laws,” simply finds such protection “denied”
when the regime constituted by those laws grossly fails
to protect equality.
It is submitted that the uneasiness which the first con
sideration of these theories may produce stems not from
any difficulty about their intrinsic correctness, but rather,
from a difficulty in discerning how their application can
rationally be limited so as to prevent the absurd applica
tion of constitutional requirements to the genuinely private
and personal choices of man.
It would violate the soundest methodologic canons of
our case-law system for this Court now to face and an
swer every question that might someday arise as to the
application of the theories urged to these private and per
sonal choices.24 Petitioners now submit, however, that
24 Cf. Frankfurter, J concurring in Smith v. California, 361
IT. S. 147, 161-162.
50
several lines of evidently sensible distinction can be fore
shadowed, for development and application as cases may
arise, and that the application of one or more of the above
theories to the present cases need not, therefore, be ar
rested by apprehension lest the Court might thereby ir
reversibly have started down a road leading to violation
of the sacred areas of human privacy.
It will be submitted that these distinctions go not so
much to the question of the presence or absence of “state
action” as to the question whether the substantive guar
antees of the Fourteenth Amendment are violated. See
Henkin, “Shelley v. Kraemer: Notes for a Revised Opin
ion,” 110 U. Pa. L. Rev. 473 (1962). That Amendment
does not forbid all “state action,” but only such state ac
tion as violates those substantive guarantees. The latter,
in turn, are (like all constitutional provisions) susceptible
of reasonable interpretation, in the light of their purpose
of ensuing a practical and thoroughgoing equality for the
Negro, in the communal life of the states. The Slaughter
house Cases, 83 U. S. (16 Wall.) 36. The following dis
tinctions (not supposed to be exhaustive) furnish copious
means for the legitimate performance of that task of in
terpretation in such a manner as to prevent an interfer
ence with the genuinely private life.
First and most crucially, the records in these cases af
firmatively establish that no private or personal associa-
tional interest is at stake. This is obvious on the face of
it; the relation involved is that of a restaurant-keeper to
a casual customer. Eckerd’s Drug Store, in Bouie, is one
of a large chain, and the manager who ordered petitioners
out was acting in compliance with company policy; ob
viously, no personal relational interest can exist in such a
case. Mr. Terry, the co-owner of the store in Barr, tes
tified, “I don’t think my personal reasons are involved
51
in this case, are they?” (E. 20). In Bell, the restaurant
owner testified that he personally was in sympathy with
petitioners’ objectives, but had to keep them out to please
his customers (R. 32). The only genuinely personal choice
involved in such restaurant cases, so far as association
is concerned, is the choice that parties of customers might
make to eat together, a choice limited along racial lines,
where segregation prevails.
Secondly, and closely connected, the events and the is
sues in these cases are in the fully public rather than in
the private life. A restaurant is a public place, contrast
ing totally with the home and other traditional citadels
of privacy. Segregation in restaurants is a sectional and
national public problem; no informed person (and cer
tainly not the members of this Court, given the consent
of its docket) can fail to be aware of this fact. The prac
tice of restaurant and other public segregation defines
the public character of whole communities and states, and
significantly affects the status of millions of American
citizens. The Fourteenth Amendment guarantees, it may
be thought, are ancillary to the “citizenship” it confers
(see Slaughterhouse Cases, supra) and “citizenship” is
a public term, having to do with the public life.25
25 I t may be that the citizenship clause of the Fourteenth Amend
ment is to be read as an affirmative grant of membership in our
society, carrying with it not merely the right to be referred to as
a “citizen,” but also the right to be treated as an equal member
of the community. See Mr. Justice Harlan’s dissent in The Civil
Bights Cases, 109 U. S. 3, 46-47 (1883). As Justice Harlan there
points out, this inclusion immediately resulted in the application
to the new citizens of the “privileges and immunities” clause in
Article IY, §2. Cf. Scott v. Sanford, 60 U. S. 19 (19 How.) 393,
404, 407 where “citizenship” is treated as being defined by one’s
being “a part of the people,” fit to “associate with the white race.”
It is to be observed that there is no textual basis for a “state action”
requirement with respect either to the citizenship clause of the
Fourteenth Amendment or to the privileges and immunities clause
52
Thirdly, no competing federal constitutional claims must
be weighed here against the petitioners’ claim to be ex
tended protection against racial discrimination or at the
least not to have the state use its power de facto to fur
ther and support such discrimination. If the privacy of
the home, as recognized in the Third Amendment were at
stake,26 or if the aim were to enforce association forbidden
by religious tenets, or if what were proposed were an
invasion of privacy as deep as that effected by unauth
orized search, or if any other constitutional norm of in
dependent value (as freedoms of speech, assembly, petition,
etc.) were brought into confrontation with the one peti
tioners assert, accommodation would evidently have to be
made, for the Constitution is to be construed as a whole.27
Here the only colorable competing claim would arise from
the Fifth and Fourteenth Amendment guarantees against
the deprivation of property without due process of law,
of Article IV, §2. This absence of textual basis is highly material,
for the doctrine of the Civil Bights Cases, the fountainhead of the
“state action” concept, was based on the phrase “No State shall . . . ”
Cf. Mr. Justice^ Harlan’s characterization of The Civil Bights Cases
opinion as resting on “subtle and ingenious verbal criticism” (109
U. S. at 26).
26 Douglas, J concurring in Lombard v. Louisiana, 373 U. S.
267, 274:
“If this were an intrusion of a man’s home or yard or farm or
garden, the property owner could seek and obtain the aid of
the state against the intruder. For the Bill of Rights, as ap
plied to the States through the Due Process Clause of the
Fourteenth Amendment, casts its weight on the side of the
privacy of homes. The Third Amendment with its ban on the
quartering of soldiers in private homes radiates that philos
ophy.”
27 “The Constitution is an organic scheme of government to be
dealt with as an entirety. A particular provision cannot be severed
from the rest of the Constitution.” Frankfurter, J., concurring in
Beid v. Covert, 354 U. S. 1, 44. Cf. Henkin, op. cit. supra, 110
U. Pa. L. Rev. at 487.
53
but those guarantees protect only against arbitrary regu
lation unrelated to legitimate public ends (Nebbia v. New
York, 291 U. S. 502), and such a claim could not be weighed
in the same scale as the petitioners’ claim to be free of
public racial discrimination, a thing categorically and at
all events forbidden.
Fourthly, the businesses and places concerned in the cases
at bar are already abundantly regulated; their licensing
and their subjection to minute codes is a common-place of
modern life.28 They are not only de facto public, but are
built into the regulatory regime of our law. Most strik
ingly, the very relationship here concerned—that of res
taurant-keeper and customer—has traditionally been regu
lated in both directions by the law’s command that dis-
28 Maryland chain stores (Ann. Code of Maryland, Article 56,
§§2, 57 (1957)), restaurants (Md. Code, Article 56, §178 (1957))
and soda fountains (Md. Code, Article 56, §174 (1957)) are licensed
by the state. A person doing business is subjected to fine or impris
onment (Md. Code, Article 56, §9 (1957)). Maryland law prescribes
comprehensive sanitary rules and regulations for places where food
is to be served. (Md. Code, Article 43, §200 (1957)). The State
Board of Health is given a right of entry for purposes of inspec
tion. (Md. Code, Article 43, §203 (1957)). The Board is also
empowered to make further rules and regulations necessary to
effectuate the statute (Md. Code, Article 43, §209 (1957)). Vio
lations of these provisions are punishable by fine or imprisonment
or both. (Md. Code, Article 43, §202 (1957)).
South Carolina restaurants, cafes and lunch counters are gov
erned by rules and regulations formulated by towns and cities.
Code of Laws of South Carolina Ann. §§35-51, 35-52 (1962).
Failure to comply with municipal regulations may result in denial
or revocation of a license (S. C. Code, §35-53 (1962)) or punish
ment by fine or imprisonment (S. C. Code, §35-54 (1962)). State
law exists concerning refrigerators in restaurants (S. C. Code,
§35-130 (1962)), dishes and utensils (S. C. Code, §35-131 (1962)),
food (S. C. Code, §35-132 (1962)), garbage disposal (S. C. Code,
§35-133 (1962)), physical examination of employees (S. C. Code,
§35-135 (1962)), inspection by the State Board of Health (S. C.
Code, §35-136 (1962)). Violation of state laws is subject to fine
or imprisonment (S. C. Code, §35-142 (1962)). Licenses are re
quired in order to operate luncheonettes. The proprietor in Barr
mentioned his city licenses (R. Barr 18).
54
crimination be practiced29 (a command now perceived to
violate the Fourteenth Amendment),30 and by the com
mand that it not be practiced.81 The application of the
Fourteenth Amendment to the formation of this relation
ship is not a radically new entrance of government into
a matter hitherto assumed to be free, as would be the
case if the Fourteenth Amendment were applied to the
living-room, to the really private club, or to the car-pool.
Fifthly, de facto segregation, by nominally private
choice, is the functional equivalent, or a close approxima
tion thereto, of something forbidden by the Fourteenth
Amendment, for it makes no practical difference to a
Negro whether he is barred from public places by city
ordinance, or barred from the same places by a nominally
“private” segregation resting on tacit understanding and
custom—just as it made no difference to him in Shelley v.
Kraemer, 334 TJ. S. 1, whether ordinance or covenant kept
him out of a neighborhood, and made no difference to him
in Terry v. Adams, 345 U. S. 461, whether his right to
vote effectively was taken away by statute or by the Jay
birds, and made no difference, in Marsh v. Alabama, 326
U. S. 501, whether speech was effectively denied by en
forcement of trespass statutes on company-owned streets,
or by more candid means.82
Sixthly, the “property” interest asserted here is minimal
and technical. It amounts to no more than the right to
exclude Negroes from a place where everybody else is
29 South Carolina law requires segregation in carrier station res
taurants or eating places. S. C. Code, §58-551 (1962).
30 Peterson v. Greenville, 373 U. S. 244 (1963).
31 See footnote 14, supra.
82 And compare, Bice v. Elmore, 165 F. 2d 387 (4th Cir. 1947),
cert, denied, 333 U. S. 875, with Brown v. Baskin, 80 F. Supp.
1017 (B. D. S. C. 1948), aff’d 174 F.2d 391 (4th Cir. 1949).
55
welcome. Its assertion is, correspondingly, not so much
a reason as a restatement of the claim. Sanctity or “sacred
ness,” 33 has been predicated of this claim, but not many
angels can dance on the point of this needle. If “sacred
ness” is a relevant concept here, its emotional overtones
may more readily be enlisted on the side of the petitioners,
who, as Americans, subject to the most exacting duties of
citizenship, assert their right to move about in public as
equal members of the citizenry.
Seventhly, though, not by literally verbal means, the
petitioners here were expressing themselves on topics of
high public concern, as Ghandi was doing when he marched
to the sea. Thornhill v. Alabama, 310 U. S. 88; Stromberg
v. California, 283 U. S. 359. This fact gives emphasis to
the location of these events in the fully public life (cf. Marsh
v. Alabama, 326 U. S. 501), and suggests a special concern
to make sure that the power of the State is not engaged in
the suppression.
It is necessary to be precise as to the bearing of these
numbered points on the present question. Petitioners are
not asserting that “state action” is itself to be found in any
of these considerations. “State action,” they rather assert,
is to be found in these cases through one or more of the
theories developed in parts I-B to I-D, supra, and sum
marily listed at the beginning of the present section. Peti
tioners recognize, however that “state action,” under any
of these three theories rationally developed, might be found
in cases where the result of the application of the Four
teenth Amendment would be an absurd incursion into areas
of genuine human privacy. For the clearest example, “state
action” might be found, under the Shelley theory of Point
I-B, where legal process is used to keep an unwanted in-
33 North Carolina v. Avent, 253 N. C. 580, 588, 118 S. B. 2d 47,
53 (1961).
56
trader out of the home. The numbered points briefly
sketched just above are designed to suggest to the Court
that, whether or not, as an abstract question, “state action”
is present in such a case, there are many lines along which,
by following an interpretation of the substantive guaran
tees of the Fourteenth Amendment consonant with the social
context in which it exists, the Court might, if the necessity
should ever arise, keep the Fourteenth Amendment out of
the living-room, where it does not belong, without keep
ing it out of the public life of the community. The full
development and application of any one of these distinc
tions is obviously not called for in this case; the fact that
they are evidently sensible is relevant to these cases only
as a means of demonstrating that, by recognizing the exist
ence of “state action” in these cases, the Court is not com
mitting itself to the application of constitutional impera
tives to the authentic privacies of the people.
p .The extension of constitutional guarantees to the authen
tically private choices of man is wholly unacceptable, and
any constitutional theory leading to that result would have
reduced itself to absurdity. But the problem created by
this unacceptability cannot be solved in a principled man
ner by pretending not to see “state action” where it is
present. This pretense carries a double danger. To pro
tect the privacy of the living-room by blinding oneself to
the very palpable “state action” that actively or potentially
maintains that privacy is to endanger the privacy itself,
for the gross fiction stands permanently vulnerable. On
the other hand, the felt necessity of ignoring the “state ac
tion” that protects the living-room must result in sporadic
and irrational failure to recognize ‘state action’ where it
exists and where no genuine interest in privacy is present,
for the concepts elaborated to shore up the illusion that
“state action” does not support and enforce the choices
of men in their purely private life are bound to radiate, wi
57
arbitrary effect, into fields where no such choices are really
concerned. (The present cases, in fact, present the latter
danger.)
It is earnestly urged that the way out of this impasse
does not lie along the road of the elaboration of qualitative
distinctions among different “forms” of state action. These
distinctions have no warrant in the language of the Four
teenth Amendment. They have no relation to the purposes
of that Amendment. They cannot be made to correspond
to any wise views of the relations between the private man
and his society, and the endless series of fine lines which
they proliferate must ceaselessly be drawn and redrawn,
as time produces endlessly new patterns of state interven
tion and involvement. The way out does not lie in a dis
tinction between “more” or “less” state action, for there is
not the roughest scale of quantitation, objective or intui
tive, along which the incommensurables of the multiform
presented facts can be measured.
The “state action” concept, burdened as it is and must
be with an unshakeable train of teasing questions in the
metaphysics of law, is not an apt instrument for drawing
practical lines. In the ultimate jurisprudential sense, “state
action” supports every private action; to “draw the line”
between “private” and “state” action is like trying to deter
mine which jaw of the vise is gripping the piece of wood.
In a more pragmatic and experiential sense, “state action”
is always seen, in at least one and usually in many gross
forms, in every case of racial discrimination reaching this
Court or likely to reach it.
The way out lies in a frank acceptance of at least this
pragmatic omnipresence of “state action,’"' and in the equally
frank use of an available alternative technical resource
for doing the work which the “state action” concept cannot
rationally do. That work is the protection of the really
private life of man—in its arbitrary choices, in its caprice,
even in its injustice—from subjection to the standards of
the Constitution. The available technical device, as sug
gested above, is the exploration of a rule of interpretation
of the substantive guarantees of the Fourteenth Amend
ment, which would limit them to incidence upon public life.
The Fourteenth Amendment lives in a socal context—and
in a constitutional context—wherein privacy and individu
ality are of high assumed value, and there is nothing
unwonted to law in the application of that context to its
interpretation.
V
/ It is not supposed that the distinction between the public )
/ and the private life is one of hair-line clarity. If, as Mr.
Justice Holmes said, all law, as it becomes more civilized
becomes a matter of degree,34 then all law, in the process
of its civilization, moves from the fictitious and facile
clarity of categorical concept into the less impressive but
at least workable phase of assessment and weighing. The
distinction between the public and the private life of man,
as a criterion for the application of the Fourteenth Amend
ment, has at least the merit, so hard to attain, that it tries
to draw the line in the place where the line is wanted, along
the cleavage of felt need and apprehension. And its sub
stitution as a conceptual means for doing some of the
work now assigned to the “state action” concept is not the
substituting of the vague for the clear, but rather the sub-
stitution of a vagueness progressively elarifiable for an
[^apparatus of nebulous confusion and multiple ambiguity. \
To summarize and perhaps clarify this point, it is not
here contended that “state action” is not a requisite for the
application of the Fourteenth Amendment. If that case
ever comes to the bar of this Court of which it can truly be
34 Holmes, J., partially concurring in LeBoy Fibre Go. v. Chi
cago, M. and St. P. By., 232 U. S. 340, 354.
59
said that “no state action” in any form supports the dis
criminatory pattern, then “state action” rule surely ought to
be applied. It is rather contended that the “state action”
concept, admitting its validity, must either be artificially
and arbitrarily burdened with distinctions corresponding
to no reality, or else can do no work. It is urged that the
work for which this concept is wanted can be done by wholly
different concepts, legitimately to be applied to the inter
pretation of the Fourteenth Amendment. Without deciding
hypothetical cases not now before the Court, it is easy to
perceive that these considerations make it possible to give
effect to the presence of “state action” in these cases, with
out any unwanted commitment to the application of Four
teenth Amendment guarantees to the genuinely private
concerns of man.
II.
The Convictions of Petitioners in the B a r r and B o u ie
Cases, Pursuant to S. C. Code, §16-386, and in the B e ll
Case Under Md. Code Ann., Art. 27, §577 Deny Due
Process of Law Because There Was No Evidence in the
Records of the Conduct Prohibited by Those Laws, or
Else, the Laws as Construed to Include Petitioners’ Con
duct Do Not Convey a Fair Warning That It Was Pro
hibited.
The records in Bouie and Barr, the cases from South
Carolina, show (if the testimony be taken most favorably
to the State) an invited entry into a drug store open to
the public, an entry into the lunch counter section not for
bidden by any notice, and a short delay in getting up and
leaving when requested to do so. Of course, arrest and jail
sentence on such a factual showing, would be quite incred
ible if one did not happen to know that Negroes were in
volved. But it is not too much to speak of sheer fantasy
60
when one reads the test (understandably not quoted in the
South Carolina court’s opinion) of the statute (S. C. Code
§16-386) into which these facts are supposed to fit:
Every entry upon the lands of another where any
horse, mule, cow, hog or any other livestock is pastured,
or any other lands of another, after notice from the
owner or tenant prohibiting such entry, shall be a mis
demeanor and be punished by a fine not to exceed one
hundred dollars, or by imprisonment with hard labor
on the public works of the county for not exceeding
thirty days. When any owner or tenant of any lands
shall post a notice in four conspicuous places bn the
borders of such land prohibiting entry thereon, a proof
of the posting shall be deemed and taken as notice con
clusive against the person making entry, as aforesaid,
for the purpose of trespassing.
Quite aside from the very evident fact that the statute
is aimed at trespass on open lands, the decisive objection
to its application to petitioners is that it prohibits “entry
. . . after notice,” and that is not what was proved here.
Much expansion cannot add to this simple truth.
In these and a contemporaneous sit-in case, Charleston
v. Mitchell, 239 S. C. 376, 123 S. E. 2d 572 (1961), the South
Carolina court, evidently confusing the law of civil tres
pass with the problem of this statute’s meaning, has intro
duced an entirely novel construction of this statute, holding,
in effect, that “entry” means “remaining a short while,” or,
in the alternative, that “after” means “before.”
These convictions either offend the due process clause
under the doctrine of Thompson v. Louisville, 362 U. S.
199, and Garner v. Louisiana, 368 U. S. 157, or else the law
has been so unfairly expanded by construction that it fails
to warn, violating the principles of Lametta v. New Jersey,
61
306 U. S. 451; Cantwell v. Connecticut, 310 U. S. 296; Ed
wards v. South Carolina, 372 U. S. 229; and other similar
cases.
South Carolina, subsequent to petitioners’ arrest, passed
a law specifically relating to failure or refusal to leave
business or other premises “immediately upon being or
dered or requested to do so.” 35 The South Carolina courts
have long recognized a difference between entry after no
tice and “trespass”, saying that “trespass” is not identical
but is “more comprehensive.” 36
35 S. C. Code, (1962) §16-388, (S. C. Acts 1960, p. 1729, Act
No. 743, May 16, 1960) provides:
“Entering premises after warning or refusing to leave on
request; jurisdiction and enforcement.—Any person who, with
out legal cause or good excuse, enters into the dwelling house,
place of business or on the premises of another person after
having been warned within six months preceding not to do so
or any person who, having entered into the dwelling house,
place of business or on the premises of another person without
having been warned within six months not to do so, fails and
refuses, without good cause or good excuse, to leave imme
diately upon being ordered or requested to do so by the person
in possession or his agent or representative shall, on conviction,
be fined not more than one hundred dollars or be imprisoned
for not more than thirty days.
“All municipal courts of this State as well as those of mag
istrates may try and determine criminal cases involving vio
lations of this section occurring within the respective limits
of such municipalities and magisterial districts. ' All peace
officers of the State and its subdivisions shall enforce the pro
visions hereof within their respective jurisdictions.
“The provisions of this section shall be construed as being
in addition to, and not as superseding, any other statutes of
the State relating to trespass or entry on lands of another.”
This was the provision involved in Peterson v. Greenville, 373
U. S. 244.
36 See State v. Hallback, 40 S. C. 298, 18 S. B. 919, 922:
“ . . . but it is clear that ‘trespass’ is a more comprehensive
term than ‘entry,’ and indeed includes it, especially when we
consider the words that follow—‘after notice’—which does not
62
A conviction without evidence to support it may also be
perceived as one based on a law which fails to give fair
warning. Indeed, Thompson v. Louisville, 362 U. S. 199,
206, rested in part upon Lansetta v. New Jersey, 306 U. S.
451. Surely the South Carolina entry after notice law
(§16-386) utterly fails to convey to potential offenders or
to the tribunals any standards by which the proposed or
past act could be charged. Could this statute furnish any
warning to petitioners that what they were doing violated
it, and could it be thought to command their conviction, on
the factual showing in these records, with anything like the
clarity needed in a court of law? The obvious negative an
swers make it clear that due process was violated.
The Maryland statute involved in Bell read, in part, as
follows:
“Any person or persons who shall enter upon or cross
over the land., premises or private property of any
person or persons in this State after having been duly
notified by the owner or his agent not to do so shall be
deemed guilty of a misdemeanor, and on conviction
thereof before some justice of the peace in the county
or city where such trespass may have been committed
be fined . . . . ” (Md. Code, 1957, Art. 27, §577).
occur at all in section 2501 [now §16-382], which creates the
offense of ‘trespass.’ ”
In State v. Mays, 24 S. C. 190 (1886), the distinction was made
between entry after notice and trespass, the court holding that an
affidavit charging “trespass after notice” failed to inform the de
fendant that he was charged under G. S. 2507 (now §16-386)
rather than under G. S. 2501 (now §16-382). Giving notice was
referred to as “essential” (24 S. C. at 195).
None of the civil trespass discussion in cases relied on by the
State such as Shramelc v. Walker, 152 S. C. 88, 149 S. E. 331, and
State v. Lazarus, 1 Mill., Const. (8 S. C. Law) 31 (1817)’ has
any bearing on the meaning of entries after notice in §16-386.
63
The application of this statute to the peaceable refusal to
leave a restaurant table does not excite the risibilities, as
does the analogous application in the South Carolina cases.
But the radical vice is the same. What is prohibited is en
tering or crossing of land, premises, or private property,
after due notification, and that is not what petitioners did.
The indictment, drawn after the statute, charged them with
entering and crossing the premises “after having been duly
notified by Albert Warfel . . . not to do so. . . . ” (R. 3;
emphasis supplied), but the record conclusively shows that
this notification (by Warfel) was given when the peti
tioners were seated at tables in the restaurant (R. Bell 28-
29, 39).37
Again, the Maryland court has, by a novel construction
of this old law in a recent sit-in case decided after peti
tioners’ acts (Griffin v. State, 225 Md. 422, 171 A. 2d 717
(1961), cert, granted, 370 U. S. 935), interpreted this statute
to apply to the act of remaining after warning. No prior
Maryland law was invoked to support this novelty;38 the
court in Griffin, supra, looked to State v. Avent, 253 N. C.
580, 118 S. E. 2d 47 (1961), vacated 373 U. S. 375, North
Carolina’s response to the sit-ins. But to that construction
the same remarks apply as were made above with respect
to the South Carolina statute. If, as a matter of state
law, a statute saying “enter” means “remain,” then, as a
37 The single possible exception to this is that Mr. Warfel in
formed petitioner Quarles of “company policy” at the front of
the dining room (R. Bell 27-28); there was no other description
of Warfel’s statement to Quarles, and no statement that he was
forbidden to enter in explicit terms. Quarles said he became
engaged in a conversation with Mr. Hooper, the owner, at this
point (R. Bell 43).
The indictment (R. Bell 3, 14) was based upon Albert Warfel’s
order to leave and did not refer to Miss Dunlap, the hostess. In
any event, her statement—“We haven’t integrated as yet”—did not
unequivocally forbid entry (R. Bell 24).
38 In 1958 the Maryland court had emphasized the importance of
notice forbidding entry, Krauss v. State, 216 Md. 369, 140 A. 2d
653 (1958).
64
matter of federal law, that statute fails, as so applied, in
the basic due process requirement of reasonable clarity in
its command to the citizen and to the tribunal that must
decide whether it has been broken.
Although it is submitted that due process would, for the
reasons given in this part, be wanting in these convictions
if petitioners had been ordered to leave because they were
not wearing ties, or for any other reason exciting no spe
cial federal constitutional sensitivity (Cf. Lametta v. New
Jersey, 306 U. S. 451), that question need not be decided
in tlp.ese cases. It is settled that the requirements of clarity
are especially high in cases involving, as these certainly do,
the attempted penalization of expression.39 Smith, v. Cali
fornia, 361 U. S. 147, 151; NAACP v. Button, 371 U. S.
415, 432, and cases cited; cf. United States v. National
Dairy Prod. Corf., 372 U. S. 29, 36. The reason for this is
that freedom of expression, a specific federal right of great
importance in our polity, would be crippled if those exer
cising it had to guess whether a vague statute might be
held to apply to them, or had to guess, as here, whether a
statute which seemed obviously inapplicable would be
stretched to apply. In short, a buffer zone must be pro
vided, “because First Amendment freedoms need breathing
space to survive.” NAACP v. Button, 371 U. S. 415, 433.
Then, too, free expression would be endangered if courts,
expressing local interests, could freely avail themselves,
for the purpose of suppression, of the device of strained
construction of seemingly inapplicable statutes, or if police
and prosecutors could engage in “selective enforcement
against unpopular causes.” Button, supra (371 U. S. at
435); Thornhill v̂ Alabama, 310 U. S. 88, 97-98; Smith v.
California, 361 TJ. S. 147, 151.
39 It is settled that non-verbal expression such as petitioners’
conduct is included within “First Amendment” concepts. Strom-
berg v. California, 283 U. S. 359.
65
For the same reasons a high standard of clarity is im
posed on statutes employed to diminish racial equality,
for that equality is a federal constitutional interest of very
high rank. Wright v. Georgia, 373 U. S. 284. Even if, con
trary to petitioners’ view, a state may sometimes employ
its judicial power and criminal laws to further and sup
port private racist patterns, it is submitted that this ought
to be allowed only where the state law speaks with clarity.
The measure of that required clarity need not be taken
here, for these statutes, insofar as they are clear, clearly
do not apply to the actions of petitioners, and they can
be made to apply only by a fiat of construction.
III.
The Convictions in B a r r v. C o lu m b ia Should Be Re
versed on Several Grounds Specially Applicable to That
Case.
A. In the case o f B arr v. C olum bia th ere w ere special circum
stances o f p o lice invo lvem en t in the racially d iscrim in atory
schem e which w ou ld su p p ly the e lem en t of state action
and fu rn ish grounds fo r reversa l if no o th er existed.
The following facts are taken from the uncontradicted
testimony of the State’s own witnesses, the arresting police
man and the manager of the drug store. The manager testi
fied that the police first became involved in the matter of
sit-ins in his store when “ . . . they came and informed
me of the demonstration and we were working as a group
. . . . I didn’t call them to come around and inform me.
They informed me in advance” (R. Barr 21) (emphasis
supplied). This “group” work with the police resulted
in a “ . . . previous agreement to that affect, that if they
did not leave, they would be placed under arrest for tres
passing” (R. Barr 23). In answer to the question, “So
66
in fact you had instructed the Police Department to arrest
them if they refused to leave at your request?” the manager
testified, “Not necessarily, I had instructed them, but that
was an agreement pertaining to the law enforcement divi
sion” (R. Barr, 23). The arresting officer in turn, testified
that he was at the drug store not on special call but by
prearrangement (R. Barr 5-6). This testimony conclu
sively establishes that the actions of the police were taken
by general and concerted prearrangement, and not by mere
arrest on complaint or on the basis of casual observation.40
Whether or not conclusive in itself on the “state action”
question, this fact wholly determines the crucial significance
of what follows.
Mr. Stokes, the arresting officer, was waiting in the store
for the arrival of the expected sit-in demonstrators (R.
Barr 6). After they came in, he testified, Mr. Terry, the
manager, “made the statement to the five, that he wasn’t
going to serve them, that they would have to leave” (R.
Barr 4). Then, in an action which establishes beyond
doubt the close affirmative involvement of the police in
the discriminatory scheme, the officer, in his own words,
“ . . . requested that Mr. Terry go to each individual and
ask him to leave in my presence . . . . ” (R. Barr 4) (em
phasis supplied). The store manager’s testimony exactly
corroborates this point (R. Barr 17).
There is no ambiguity in this action. The officer was not
merely keeping order, or arresting for a crime which he
passively observed. He was engaged in counseling the
store owner on the means of producing clearcut evidence of
40 The closeness of the City’s supervision of and interest in this
matter, and the nature of its policy commitment, is indicated by
the statement attributed to Columbia’s City Manager by petitioner
Carter: “Gentlemen, further demonstrations will not be tolerated”
(R. Barr 28).
67
“crime,” and even “requesting” that he take this racially
discriminatory action. The crucial importance of this par
ticipation may be shown, if further showing is needed, by
this officer’s positive testimony that the store manager,
though at an earlier time he had said he wanted these
Negroes out of his store, did not, at the actual time of
the alleged offense, request their arrest or eviction (E. 16).
Beyond a doubt, what is shown here is a general scheme
for dealing with sit-ins, in which the police played the
role of initiators. Where the officer stands by and “re
quests” a private person so to frame his words as to make
sure a “crime” has been or will be committed, it is absurd
to talk of the mere neutral use of state machinery to en
force private discriminatory choice. Of. Lombard v. Louisi
ana, 373 U. S. 267; Peterson v. Greenville, 373 U. S. 244.
B. The d iso rd erly conduct convictions in the B arr case either
rest on no evidence o f gu ilt and deny due process under the
d octrin e o f T h om pson v. L ouisville and G arner v. Louisiana ,
or vio la te the r id e requ irin g fa ir w arning as exem plified
by E dw ards v. S ou th Carolina.
The five petitioners in the Barr case were charged and
found guilty of “breach of the peace” (S. C. Code §15-909)
as well and separate fines were imposed for this offense.
Nothing in the trial judge’s oral ruling (E. Barr 41) indi
cates the facts thought to support the breach of the peace
convictions. The Eichland County Court said that this con
viction was proper under 8. C. Code §15-909 relating to
“Disorderly Conduct, Etc.”, and authorizing arrest and
specified punishment for:
Any person who . . . may be engaged in a breach
of the peace, any riotous or disorderly conduct, open
obscenity, public drunkenness, or any other conduct
grossly indecent or dangerous to the citizens of such
city or town or any of them. . . .
68
The Richland County Court held that the convictions
could be based on the evidence that “the defendants refused
to leave” after the management ordered them to leave—the
same evidence which it held supported the trespass convic
tions (R. Barr 49). The South Carolina Supreme Court
noted that the convictions were had under this statute,
and that the exceptions on appeal charged a failure to prove
a prima facie ease and the corpus delicti, but refused to de
cide whether the offense was established, saying that these
exceptions were “too general to be considered”, failing to
comply with the court’s Rule 4, Section 6 (R. Barr 56).41
First, the thought that there might be an independent
state ground precluding this Court’s review of this particu
lar objection to the breach of the peace convictions should
be put out of mind. This is so because the South Carolina
court clearly had the power to decide the issue presented
by petitioners’ exceptions, and simply exercised its dis
cretion in refusing to do so, which does not preclude this
Court’s review. Williams v. Georgia, 349 U. S. 375. The
South Carolina court’s power is conclusively demonstrated
by a series of decisions rendered before and after Barr.
Indeed, shortly after the South Carolina court decided Barr,
41 Rule 4, Section 6 (Yol. 15, S. C. Code, 1962, p. 146) does more
to discourage detailed and elaborate exceptions than to encourage
them, providing:
“Section 6. Bach exception must contain a concise state
ment of one proposition of law or fact which this Court is
asked to review, and the same assignment of error should not
be repeated. Bach exception must contain within itself a
complete assignment of error, and a mere reference therein
to any other exception then or previously taken, or request
to charge will not be considered. The exceptions should not
be long or argumentative in form.” (Emphasis in original.)
Petitioners’ brief in the court below did argue the facts and
that the evidence showed merely that petitioners ignored the ra
cially discriminatory command to leave without any evidence of
violent, threatening, or otherwise disorderly conduct. And, of
course, petitioners argued, in the brief as they had at the trial
69
it decided the Bouie case in which identical exceptions were
made (R. Barr 51; R. Bouie 63), and not only considered
the merits of the exceptions, but actually reversed Simon
Bouie’s conviction for resisting arrest on the ground that
the elements of the offense were not proved. The court
did the very same thing in an opinion filed the day before
the Barr case as well; in Charleston v. Mitchell, 239 S. C.
376, 123 S. E. 2d 512 (Dec. 13, 1961), petition for certiorari
pending as No. 8, October Term, 1963, the court considered
the merits of exceptions identical to those in Barr and Bouie
(see record in Mitchell, on file in this Court p. 78) and
reversed convictions for interfering with an officer in the
discharge of his duties on the ground that the evidence
failed to support the convictions (239 S. C. at 393-395, 123
S. E. 2d at 520-521). In the Mitchell case, supra, the court
reviewed the evidence in detail and concluded that it was
insufficient to prove the offense; then the court made the
following statement which faintly, but confusingly, fore
shadowed the next day’s pronouncement in Barr:
What we have said disposes of the question of whether
the evidence establishes the corpus delicti or proves a
prima facie case against the appellants. We do not
pass upon the question of whether this issue was prop
erly before us for consideration. (Mitchell at 239 S. C.
395, 123 S. E. 2d at 521.)
To this abundant showing that the court has power
to rule and actually exercises this power, it seems almost
superfluous to add two more cases where the court ruled on
exceptions identical to those here. This did occur nine
(R. Barr 39-40), the claim that they were not guilty of any crime
as a Fourteenth Amendment due process and equal protection
claim. Thompson v. Louisville, 362 U. S. 199, was cited in the
petition for hearing (R. Barr 58).
70
days before the Barr opinion in State v. Edwards, 239 S. C.
339,123 S. E. 2d 247 (Dec. 5,1961), rev’d sub nom. Edwards
v. South Carolina, 372 U. S. 229, and a month before Barr
in Greenville v. Peterson, 239 S. C. 298, 122 S. E. 2d 826
(Nov. 10, 1961), rev. sub nom. Peterson v. Greenville, 373
U. S. 244. So, at least four opinions roughly contemporane
ous with that in Barr demonstrate that the South Carolina
court has the power and authority to, and under its rules
actually does, pass on exceptions worded identically to those
which it refused to pass on in this case.
Williams v. Georgia, 349 U. S. 375, 389, which held that
a state court’s discretionary decision not to rule on a federal
claim “does not deprive this Court of jurisdiction to find
that the substantive issue is properly before [it],” is obvi
ously controlling.
Turning to the Barr record, it is manifest that either no
breach of the peace was proved, or that South Carolina’s
vaguely defined breach of the peace concept fails to give
fair warning. One way or the other the convictions offend
the due process clause.
Insofar as petitioners have ascertained, §15-909 has not
been definitively construed in any reported decision and
has never before been applied to conduct like that in this
case. However, since the charge seems to rest on a por
tion of that statute relating to “breach of the peace” (and
not upon any of its other provisions such as those relating
to riotous or disorderly conduct, open obscenity, public
drunkenness, or any other grossly indecent or dangerous
conduct) the obvious place to turn for a meaning of
“breach of the peace” under South Carolina law is to de
cisions on the common law crime of breach of the peace.
This was recently defined in State v. Edwards, 239 S. C.
339, 123 S. E. 2d 247, rev’d sub nom. Edwards v. South
Carolina, 372 U. S. 229.
71
In Edwards, the South Carolina court said that breach
of the peace was an offense “which is not snsceptible to
exact definition” and that it included “a great variety of
conduct destroying or menacing public order and tran
quility” (239 S. C. at 343, 123 S. E. 2d at 249). The court
then stated its approval of the definition of breach of the
peace it quoted from 8 Am. Jur., Breach of the Peace, p.
834, §3:
In general terms, a breach of the peace is a violation
of public order, a disturbance of the public tranquility,
by any act or conduct inciting to violence . . ., it
includes any violation of any law enacted to preserve
peace and good order. It may consist of an act of
violence or an act likely to produce violence. It is
not necessary that the peace be actually broken to
lay the foundation for a prosecution for this offense.
If what is done is unjustifiable and unlawful, tending
with sufficient directness to break the peace, no more
is required. Nor is actual personal violence an essen
tial element in the offense. . . .
By “peace,” as used in the law in this connection,
is meant the tranquility enjoyed by citizens of a mu
nicipality or community where good order reigns
among its members, which is the natural right of all
persons in political society. (239 S. C. at 343-344, 123
S.E. 2d at 249.)
Petitioners’ conduct here did not come within the frame
work of this definition. There was no showing of any act
of violence and there was no showing of any act “likely to
produce violence” if we exclude the possibility that the
mere presence of Negroes in a place customarily fre
quented only by white persons is punishable as such a
threat to the peace. That cannot be so because of the equal
72
protection clause. Garner v. Louisiana, 368 U. S. 157;
Taylor v. Louisiana, 370 U. S. 154; and Wright v. Georgia,
373 U. S. 284, make clear that the possibility of disorder
by others cannot justify conviction of petitioners in snch
circumstances.
The Sonth Carolina court’s definition of breach of the
peace contains nothing which suggests that a mere failure
to obey a racially discriminatory command of the propri
etor of a public accommodation to leave his premises is
included within the definition, or that the crime is designed
as a protection for this type of “property” claim. The only
witness at the trial who asserted that petitioners “created
a disturbance” was the store manager, Terry, and he re
garded their conduct as entirely orderly (R. Barr 22)
until the moment they sat down at the lunch counter (R.
Barr 23-24). He did not claim that petitioners’ response
to his command to leave in any way “created any dis
turbance” ; it was the mere act of sitting at the lunch
counter, in violation of the segregation custom, which was
thought to do this. The arresting officer, Mr. Stokes, gave
no testimony that petitioners created a disturbance or that
they did anything which created violence or disorder.
Thus, this case falls clearly within the rule of the
Thompson and Garner decisions, supra, and the breach of
the peace convictions should be reversed.
If it be considered that Section 15-909, by some loose
and expansive construction, embraces petitioners’ conduct,
then the statute surely denies due process because of its
vagueness. Petitioners’ conduct was well within the area
of constitutionally'protected free expression, and whether
or not it was expression fundamentally exempt from state
prohibition, it certainly cannot be prohibited under a
vague catch-all law. The First Amendment freedoms in-
73
elude non-verbal expressions as well as ordinary speech.
Cf. Stromberg v. California, 283 U. S. 359. As Mr. Justice
Harlan said, concurring in Garner v. Louisiana, 368 U. S.
157, 207:
The fact that . . . the management did not consent
to the petitioners’ remaining at the “white” lunch
counter does not serve to permit the application of
this general breach of the peace statute to the con
duct shown . . . . For the statute by its terms appears
to be as applicable to “incidents fairly within the
protection of the guaranty of free speech,” Winters
v. New York, supra (333 TJ. S. at 509), as to that
which is not within the range of such protection.
Hence such a law gives no warning as to what may
fairly be deemed to be within its compass.
The threat which vague laws pose to the fragile right of
free expression, and the settled principles holding such
laws invalid are discussed more fully in Part II above.
Cantwell v. Connecticut, 310 U. S. 296 and Edwards v.
South Carolina, 372 H. S. 229, are controlling. Nothing
need be added to what was said so recently in Edwards,
supra, with respect to the obvious, and, indeed, self-con
fessed indefiniteness of South Carolina’s crime of breach of
the peace.
74
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the judgments below should be reversed.
Respectfully submitted,
J a c k G r e e n b e r g
C o n s t a n c e B a k e r M o t ley
J a m e s M. N a b r it , III
10 Columbus Circle
New York 19, New York
C h a r l e s L. B l a c k , J r .
346 Willow Street
New Haven, Connecticut
J u a n it a J a c k s o n M it c h e l l
1239 Druid Hill Avenue
Baltimore 17, Maryland
M a t t h e w J. P e r r y
L in c o l n C. J e n k in s
107% Washington Street
Columbia, South Carolina
T u c k e r R. B e a r in g
627 North Aisquith Street
Baltimore 2, Maryland
Attorneys for Petitioners
Of Counsel:
D e r r ic k A. B e l l , J r.
L eroy D. C l a r k
W il l ia m T. C o l e m a n , J r .
M ic h a e l M e l t s n e r
L o u is L. P o lla k
R ic h a r d R . P o w e l l
J o s e p h L. R a u h
J o h n S ila rd
H a n s S m it (Member o f the Bar,
Supreme Court of the Netherlands)
I n e z V . S m it h
APPENDIX A
A Discussion of Property Rights
The content of the term “property right” has greatly
changed in the past two centuries. (See Powell on Real
Property, Par. 746). If one looks far enough backward it
could fairly be said that “he who owns may do as he pleases
with what he owns.” This is not the present law. The
present law of land has hesitatingly embodied an ingredient
of stewardship, which has grudgingly, but steadily, broad
ened the recognized and protected scope of social interest
in the utilization of things. A property right no longer
includes a privilege in the individual owner to act sub
stantially to the detriment of his fellow citizens.
Felix Cohen, in one of his essays published in 1960
(The Legal Conscience at 41), refers to “property” as
a “function of inequality.” The germ of truth in this has
present relevance for as demonstrated throughout this Ap
pendix our law of property has been characterized by gov
ernmental redress of that inequality in so many instances
that for the state to permit continuation of an inequality
is tantamount to endorsing it as an expression of public
policy.
So much of the American interposition for the modifica
tion of absolute property rights is both so well entrenched
and so long accepted that we sometimes fail to recognize
its full significance. Property consists mainly in (a) a power
to dispose; and (b) a power to use. See Blackstone, Comm.
1:138.
Both of these powers have been significantly curtailed
in the centuries which are back of us. Both of these powers
are likely to be further curtailed in the years just ahead.
The power to dispose of owned assets has been outstand
ingly cut down by (a) the rule against perpetuities; (b) the
76
law on illegal dispositions; and (c) the insistence upon for
malities as prerequisites for full efficacy. Powell on Real
Property HU839-858.
Beginning in the late seventeenth century, the rule against
perpetuities took final form after a gestation period of a
century and a third as a magnificent judicially manufactured
ingredient of the law designed to curb the power of the dead
hand to rule the future. It placed outer limits of time on
the power of the too often assumed all-wisdom of present
owners. Powell on Real Property f[762.
Rooted even more anciently in feudal practices, restraints
upon the alienation of present interests earned invalidity.
At one time, a feudal tenant could lose the land, which
derogated from the overlord’s rights, by presuming to pen
a deed of alienation. Modern thinking has made less drastic
the prohibited forms of alienation and has made milder the
penalties for overstepping established barriers; but the
law as to illegal restraints on the alienation of property
bulks large as restrictions upon what the owner of property
can do with that which he believes he owns. Restatement
of Property §§404-423. “Illegality” is broader than the
restriction upon the alienability of property. Whenever a
proposed provision is judged significantly to interfere with
the long-time welfare of society, it encounters a stern pro
hibition. In general, these situations involve efforts by the
owner of property to use the bait of wealth to control the
conduct of his donees. Such attempts have been found
illegal where the donor
a. has attempted to control or to preclude marriage;
Restatement of Property §§424-427.
b. has attempted to shape an exercise of the power of
testamentary disposition; Restatement of Property
§§428-432.
77
c. has attempted to interfere with the religions behavior
of the recipient; Restatement of Property §434.
d. has attempted to cause departures from normal
familial relationships; Restatement of Property §433.
e. has sought to meddle with the education or life work
of the recipients; Restatement of Property §436.
Such uses of wealth are potentially anti-social and hence
have been found deserving of substantial curtailment.
More important than the power to dispose is the power
to use. As one looks back over the centuries and decades
preceding 1963, the ever advancing flow of social restric
tions on the individual’s exercise of his “privileges of use”
becomes most impressive.
When the owner of a large parcel of land conveys an
interior part, it is socially undesirable to have land which
cannot be worked, and hence the conveyor is presumed to
have granted an easement by necessity for access to and
exit from the conveyed land. Finn v. Williams, 376 111. 95,
33 N. E. 2d 226 (1941). The otherwise existent power to
enforce undisturbed possession is negatived, in part, by
an implied easement grounded in social policy.
When Blackacre and Whiteacre are in the same locality,
the owner of Blackacre may not so use his land as to lessen
the reasonable enjoyment of Whiteacre by its owner or
occupier. The twelfth century assize of nuisance, (McRae,
“The Development of Nuisance in the Early Common Law,”
1 U. Fla. L. Rev. 27 (1948)), began the curtailment of the
privileges of use which was essential to the maintenance
of a fair standard of neighborliness as between nearby land
occupiers. Modern equity since the year 1800, has been
making constantly new applications of the basic idea that
one must so use his own as not to injure others. W. W. Cook,
Equity in 5 Enc. of the Social Sciences, 582-586 (1931).
78
The law of waters, whether in streams, or on the surface,
in underground springs, or lowering clouds, has as a back
drop the facts of nature. The amount and regularity of
the rainfall, the geologic factors below the surface and the
topographic configuration of the surface combine to deter
mine the total moisture available to the several owners of
affected land. Powell on Eeal Property f[708. Considera
tions of social policy fix the scope of “reasonable use.”
Courts repeatedly assert that property rights are, and
always have been, held subject to the “police power” ; that
is the power of the government to do that for which it exists,
namely, to impose restrictions (without compensation to
the owner) upon property owners whenever such restric
tions are found to serve the health, the safety, the morals,
the conservation of resources, or, the general welfare of
the governed group. On this basis, the “residential” char
acter of neighborhoods has been protected from “mobile
kitchens” (Eleopoulos v. City of Chicago, 3 111. 2d 247
(1954)); manufacturing areas have been protected from ex
cessive noises (Dube v. City of Chicago, 7 111. 2d 313 (1956)),
a statute of Virginia, compelling the connection of a private
home with the city water works system, has been upheld
(Weber City Sanit. Comm. v. Craft, 196 Va. 1140 (1955)).
Sanitary legislation began as early as 1389 (Stat. 12 Rich.
II, c. 13). Commissioners of sewers were established in
1430 (Stat. 8 Henry VI, c. 3). Building regulations received
a large impetus from the Great Fire of 1666 in London.
The importance of safeguarding “health” and “safety”
gained new recognitions in the nineteenth century.
Building Codes are now a commonplace in almost every
community. By 1951, some 2233 municipalities were listed
as having such codes. Building Regulation Systems in the
United States, 1951, published by the Housing and Home
Finance Agency of the Division of Housing Research. See
also Note, 6 Stanford L. Rev. 104, at 113 (1953). They estab-
79
lish specifications both as to the construction and use of
buildings. Multiple dwellings and tenements have require
ments as to plumbing, toilet facilities, air space per occu
pant and ventilation. No property owner is allowed to in
dulge his fancy for yard or piazza water closets (City of
Newark v. Chas. R. Co., 17 N. J. Super. 351 (1952)). Fac
tories, in proportion to the number of workers employed,
have requirements as to plumbing, ventilation and the mini
mizing of fire hazards, plus additional requirements dic
tated by the kind of work engaged in. Powell on Real Prop
erty f[862. Similarly circumscribed as to permissible utili
zations of their land are mercantile establishments. Special
requirements exist as to steam boilers, elevators, fire es
capes, fire proofing and modes of egress. Powell on Real
Property 17863.
In the field of morals, there has been a similar evolution.
Profitable houses of prostitution are no longer the privilege
of respectable property owners. Note, 24 Wash. L. Rev.
67 (1949). Obscene exhibitions incur remedial social action.
State ex rel. Church v. Brown, 165 Oh. St. 31, 133 N. E. 2d
333 (1956). Gambling is generously frowned upon. See,
for example, Iowa Code (1955) §99.1, injunction against
gambling; §726.1, penalty for keeping a place for gambling;
Mass. Ann. Laws (1955) c. 271, §§5A, 7, 8, 18 and 23. The
desirable outer limits on police power regulation with re
spect to the public morals becomes less clear as doubts
grow concerning the exact content of morality and the
efficiency of courts or legislatures in compelling general
morality. Powell on Real Property 77864. See also Sym
posium on Obscenity and the Arts, 20 Law and Contem
porary Problems, 531-688 (1955). The areas in which active
debate is now observable concern chiefly gambling and
sexual conduct. The fact remains that property owners have
been, and can be, effectively debarred from any use of their
80
pi’operty found to offend public morals and such curtail
ment of “property rights” calls for no reimbursement of
the owner so debarred.
In the wide open spaces of the West, there have been
comparable developments. Soil conservation districts have
adopted sometimes quite costly land use regulations which
must be observed by all owners in the district. Parks, Soil
Conservation Districts in Action 13,147 (1952). Conformity
has been assisted by the conditioning of land loans on pre
scribed social behavior (Note, 1950 Wis. L. Rev. 716). In
areas devoted to cattle raising, individual owners are pre
vented from making short-term gains by overgrazing.
Penny and Clawson, “Admin, of Grazing Distr.,” 29 Land
Econ. 23 (1953). This has been accomplished in some areas
by conditioning permits to use public lands needed for
grazing on the applicant having used his privately owned
land in a manner preserving its long-term value. (See
Federal Taylor Grazing Act, 43 M. S. C. A. §315 and the
Montana Grazing Act, Mont. Rev. Code 1947, §§46-2332).
Thus private ownerships are curtailed in their uses of their
“owned land” so as to assure adequate continuing supplies
of forage. Rural zoning to preserve timber and to accom
plish reforestation of cutover areas not only serve the de
sirable ends of conservation, but also serve the collateral
purpose of restoring local tax revenues by returning land to
the growing of timber and delaying the need for as yet un
bearable expenses for local roads and school maintenance
(See Washington’s Forestry Practices Act, discussed in
State of Washington v. Dexter, 32 Wash. 2d 551 (1949) ;
Solberg, “Rural Zoning in the United States,” Agric. In
form. Bull. No. 59 (1952)).
Courts and legislatures have resorted to the “police
power”—the general welfare of the group—in problems in
volving renters (41 Stat. 298 (1919), constitutionality sus
tained in Hirsh v. Bloch, 256 U. S. 135; N. Y. Laws 1920 cc.
81
131-139, constitutionality sustained in New York ex rel.
Brixton Operating Corp. v. La Fetra, 230 N. Y. 429, 130
N. E. 601, affd. 257 U. S. 665; see also Powell on Beal Prop
erty |J252) and borrowers (Powell on Real Property HH471-
474).
The objectives of zoning center on the promotion of the
welfare of the community. It has become established since
1925 that the “property rights” of any land owner are sub
ordinate :
a. to the establishment of residential areas in which
relaxation and relative tranquility can be enjoyed,
and in which there will be absent the vibration, noise,
smoke, odors, fumes and bustle of industry and com
merce; Village of Euclid v. Ambler B. Co., 272 U. S.
365; McQuillan, Mun. Corp. (3d Ed.) 1950, §§25.07,
25.96-25.109; Toll Zoning for Amenities, 2 Law and
Contemp. Prob. 266 (1955).
b. to the establishment of areas devoted to the provision
of goods and services without an intermixture of more
offensive uses; Bartram v. Zon. Com. of Bridgeport,
136 Conn. 89, 68 A. 2d 308 (1949); Town of Marblehead
v. Rosenthal, 316 Mass. 124, 55 N. E. 2d 13 (1944),
c. to the social need for controlling densities of popula
tion so that the public services of transportation,
policing, fire protection, water and power supply and
waste removal can be efficiently rendered. Symposium,
20 Law and Contemp. Problems 197, 238, 481 (1955).
These decisions embody a pragmatic reconciliation of the
conflicting pulls of the constitutional guarantee that private
property shall not be taken without compensation and the
underlying police power of any government to serve the
social welfare. The transitional judicial thinking on this
subject is well illustrated by contrasting the District Court
in Schneider v. District of Columbia, 117 F. Supp. 705
(1953), with the ultimate decision of the same case, Berman
v. Parker, 348 U. S. 26.
As early as 1945, Mr. Justice Jackson in stressing the con
trol of private rights by consideration of social concern
(U. S. v. Willow River Power Co., 324 U. S. 499) had said:
“Only those economic advantages are ‘rights’ which
have the law back of them . . . whether it is a property
right is really the question to be answered . . . .
“Eights, property or otherwise, which are absolute
against all the world are certainly rare, and water
rights are not among them. Whatever rights may be
as between equals such as riparian owners, they are
not the measure of riparian rights on a navigable
stream relative to the function of the Government in
improving navigation. Where these interests conflict
they are not to be reconciled as between equals, but
the private interest must give way to a superior right or
perhaps it would be more accurate to say that as against
the Government, such private interest is not a right
at all.”
And see Cross, “The Diminishing Fee,” 20 Law and Con-
temp. Prob. 517 (1955).
Thus, the subjection of property rights to competing
claims is irrevocably embedded in our law. The nature of
the claim to be free from racial segregation is so compelling,
and, today, so clear, that no property owner can be heard to
say that his “inalienable,” “sacred,” right to discriminate
is somehow immune from this normal process and must be
sanctioned and enforced by law. If anything, an owner
should expect that the element of stewardship with which
all property is impressed, carries with it an obligation,
which the law will recognize, not to employ one’s public
facilities in a way which injures and humiliates a large
portion of the public.
83
Where, alas, has gone the “liberty” of property owners to
maintain and to operate structures which smell to high
heaven, which are destructive of the lives, or health, or
safety, or welfare of customers and workers'? Just where
it was bound to go! Into the limbo. By the curtailment of
these “liberties” there has been assured the larger liberty
of society as a whole.
84
APPENDIX B
Survey of the Law in European and
Commonwealth Countries
1. France
Article 184, paragraph 2, of the French Penal Code,
the only provision that relates to occurrences showing some
resemblance to sit-ins, declares punishable the entry, with
the aid of threats or violence, of the domicile of a co
citizen. It would be inapplicable to conduct involved in
the case at bar for two reasons: First, an essential ele
ment of the crime is the use of threats or violence; second,
a place of public accommodation does not qualify as
“domicile” as that term is used in article 184(2).
In France, a peaceful sit-in, rather than commit a crime,
has a statutorily protected right to be served. According
to Decree No. 58-545 of June 24, 1958 (Journal Officiel of
June 25, 1958), every person engaged in commercial ac
tivities (commergant) is prohibited, on penalty of im
prisonment and/or fine, from refusing service to a per
son who in good faith requests that it be rendered, if the
commergant is able to render the service in accordance
with normal commercial customs and no law forbids bim
from rendering it. Although, in the absence of practices
of racial discrimination, this provision has never been
applied to situations similar to those presented in the
present case, its broad language would appear to make
escape from its prohibitions impossible.
2. Italy
In Italy, as in France, the penal provision protecting
the home against unlawful entry does not cover peaceful
sit-ins in places of public accommodation. Article 614 of
85
the Italian Penal Code makes criminal only entry of a
home (abitasione) or other private residence (luogo di
privata dimora) against the will of the person who has
the right of exclusion, and does not apply to places of
public accommodation.
Furthermore, in Italy, the peaceable sit-in would have
a right to be served. Article 1336 of the Italian Civil Code,
entitled “offer to the public at large” (“offerta al pub-
blico”), provides that unless circumstances or usage indi
cate otherwise, an offer to the public at large may be ac
cepted by any member of the public. A term in the offer
or contract excluding Negroes would be disregarded as
violative of Italian public policy. Italy’s policy against
racial discrimination is firmly embedded in Article 3 of
its Constitution, providing that all citizens are equal re
gardless of sex, race, language, religion, political convic
tion, or personal or social standing.
3. B elgium
Article 439 of the Belgian Penal Code declares punish
able the entry of a home, apartment, room or lodging
inhabited by someone else against the latter’s will, if the
entry is made with the aid of threats or violence against
persons, or by breaking, climbing in, or with false keys.
Article 442 of the same code similarly declares punishable
whoever has entered any of the places specified in article
439 without the consent of the owner or the tenant and is
found there during the night. Neither of these articles
apply to peaceful sit-ins, since (1) they are designed to
protect only a person’s home or residence and not places
of public accommodation and (2) peaceful sit-ins do not
involve nocturnal visits and are, by definition, neither ac
companied by threats or violence nor effectuated by break
ing or climbing in or by using false keys.
86
It is unclear whether in Belgium a peaceful sit-in would
have the right to be served. The answer would seem to de
pend in part on whether Article 6 of the Belgian Consti
tution, which provides that all Belgians are equal before
the law, also applies to individual, as distinguished from
governmental, action. If it does, the answer would be in
the affirmative.
4. T he N etherlands
Article 138, paragraph 1, of the Dutch Penal Code de
clares punishable whoever unlawfully enters the home or
the premises or homestead of someone else or whoever
unlawfully staying there refuses to leave. Prominent
Dutch authority supports the view that this provision af
fords protection not only against unlawful invasion of the
home, but also against unlawful entry of other premises,
including places of public accommodation. See, e.g., 2
Van Bemmelen & Van Hattum, Hand-en Leerboeh van Jiet
Nederlandse Strafrecht 164-65 (The Hague-Arnhem 1954).
Nevertheless, this article would not outlaw peaceful sit-
ins, since the entry and refusal to leave of sit-ins cannot
be characterized as “unlawful.” Every owner of a place
of public accommodation extends an offer of service to
members of the public. A term in his offer limiting it to
members of a particular racial group would not be given
effect as being against public policy. As a result, a Negro
accepting the offer would obtain a right to be served.
Since that right would render his entry and refusal to
leave lawful, he would not come within the ambit of article
138. The operative Dutch public policy is embodied in
Article 14 of the European Convention on Human Rights
to which The Netherlands is a party and which prohibits
discrimination on the ground of race.
87
Since a Negro, by accepting the offer of the owner of
the place of public accommodation, in effect concludes a
contract, he would, in Holland, have a civilly protected
right to be served.
5. N orway
Article 355 of the Norwegian Penal Code is similar to
the corresponding Dutch provision in that it outlaws un
lawful entry not only of the home but also of a “vessel,
railroad car, motor vehicle or aircraft, or a room in any
of these or in any other enclosed place.” As a consequence,
it would seem to protect against “unlawful” entry of places
of public accommodation. Nevertheless, for the same rea
sons as those elaborated in the discussion of Dutch law,
the entry and refusal to leave of a Negro sit-in would not
be “unlawful” and therefore not come within the ambit
of article 355.
Furthermore, in Norway, a peaceful sit-in would have
a right to be served. The existence of this right follows
from general principles of contract law, under which the
person who exploits a place of public accommodation ex
tends an offer of service to the public at large which may
be accepted by a Negro, who may disregard as violative
of public policy an exclusion based on race embodied in
the offer. Indeed, a person who refuses service solely on
the ground of race of the person who requests it may well
come within the compass of Article 246 of the Norwegian
Penal Code which declares punishable anyone who unlaw
fully, in word or deed, offends another person’s feeling
of personal honor.
6. G erm any
Article 123 of the German Penal Code declares punish
able unlawful entry not only of the home, but also of com
mercial premises (Geschaftsrdume). It similarly makes it
a crime for someone who has no right to be there to refuse
to leave these places upon demand by the person entitled
to their use and possession. There is no doubt that the
broad language of this provision also covers places of public
accommodation. Nevertheless, a peaceful sit-in would not
come within the compass of its prohibitions.
It is an essential element of the crime of article 123 that
the person who has entered the premises has done so un
lawfully or stays on the premises without having a right
to be there. In the case of a peaceful sit-in, that essential
element would be lacking. Two grounds support this con
clusion.
Article 3, paragraph 3, of the German Constitution pro
vides that nobody may be granted a disadvantage or ad
vantage because of his sex, birth, race, language, nationality
and origin, belief, or religious or political opinions. Al
though there is a division of opinion among Germany’s
legal scholars and the problem has not yet been resolved
explicitly by the German constitutional court, German schol
ars of great prominence as well as the first Senate of the
Federal Labor Court hold this constitutional mandate to
be directed not only to public officials, but also to private
individuals. See, e.g., Leisner, Grundrechte und PrivatrecM
332-53 (Munich 1960); Nipperdey and Boehmer in 2 Neu
mann, Nipperdey $ Schemer, Die Grundrechte. Handbuch
der Theorie und Praxis der Grundrechte 20, 422 (Berlin
1954); S. H. v. M. L. F December 3,1954,1 Entscheidungen
des Bundesarbeitsgerichts 185 (1954); Landkreis U. v.
Schwester K., March 23, 1957, 4 Entscheidungen des Bund
esarbeitsgerichts 240 (1957). If it does circumscribe the per
missible conduct of individuals, there is no doubt that a
89
refusal of service and a demand to leave the premises based
merely on race is in violation of the German Constitution
and cannot be given the effect of making unlawful the sit-in’s
entry of, and presence on, the premises.
However, even if the constitutional provision would not
address itself directly to individuals, the sit-in’s entry and
presence would not be unlawful. Although older authority
seems to support the view that places of public accommoda
tion cannot be regarded as extending an offer to the public
at large and do no more than invite the public to make an
offer, consisting of a request for service, the modern opin
ion, supported by prominent and most authoritative German
scholars, is that the question of whether a place of public
accommodation extends an offer to the public must be an
swered in accordance with the circumstances of the indi
vidual case. For the modern view, see 1 Erman, Handkom-
mentar sum Biirgerlichen Oesetsbuch 217-218 (3d ed. West
falen 1962); Palandt, Bur gerliches Gesetzbuch 116 (21st
ed., Munich and Berlin 1962); 1 Staudinger, Kommentar
sum Burgerlichen Gesetzbuch mit Einfuhrungsgesetz und
Nebengesetzen 878 (11th ed. by Brandi & Going, Berlin
1957). This opinion, which favors the finding of an offer,
would clearly give the peaceful sit-in, who accepted the offer
by entering and ordering, a contractual right to remain on
the premises and to be served. Furthermore, even if the
sit-in’s right to enter, to remain on the premises, and to be
served could not be based on a contract, it could be grounded
on general principles of tort law. According to Article 826
of the German Civil Code, every act that is contra bonos
mores (gegen die guten Bitten) constitutes a tort that cre
ates a claim for compensation of the damages it causes.
There is no doubt that a refusal to give service based on
discrimination against the customer’s race alone would vi
olate standards of proper conduct generally accepted in
Germany and therefore constitute a tortious act. Even those
90
who oppose the direct applicability of Article 3, paragraph
3, of the German Constitution to private individuals agree
that its provisions make clear to what norms an individual’s
conduct in society must conform. Since article 826 imposes
on the place of public accommodation the obligation not to
refuse service merely on the basis of the customer’s race, the
customer would have the corresponding right to enter and
remain on the premises. Clearly, the customer’s entry and
remaining on the premises would be measures designed to
protect himself against the unlawful discrimination prac
ticed by the place of public accommodation. Since Article
227 of the German Civil Code provides that a measure that
is necessary to defend oneself against an unlawful act is
lawful, the customer would undoubtedly be acting lawfully
by entering and remaining on the premises.
7. E ngland and the C om m onw ealth C ountries
In England, a “sit-in” would seem to be non-criminal,
because the criminal trespass laws there require force.1
In four provinces of Canada, Fair Accommodation Prac
tices Acts prohibit racial discrimination in public accom
modations.2 In the remaining provinces, it is doubtful
whether the criminal law would reach this activity.3
In India, racial discrimination in public accommodations
is prohibited by the Constitution.4
110 Halsbury, Laws of England, Criminal Law §1100 (3d. ed.
1955) ; Bex v. Bake, 3 Burr. 1731, 97 Eng. Rep. 1070 (K. B., 1765) ;
Bex v. Wilson, 8 Term Rep. 357, 101 Eng. Rep. 1432 (K. B., 1799) :
Bex v. Smyih, 5 C & P 201 (1832).
2 Saskatchewan Statutes 1956, c. 68; Ontario Statutes 1954, c. 28,
as amended by Statutes 1960-61, c. 28 ■ New Brunswick Acts 1959,
e. 6; Manitoba Acts 1960, c. 14.
3 The closest law would seem to be the Malicious Damage Statute,
Martin’s Criminal Code (1961), Section 372 (1). But the requisite
elements of damage would seem to be lacking here.
4 Constitution of India, Article 15(2).
91
In Pakistan, the abrogation of the Constitution of 1956
by presidential proclamation in October, 1958 apparently
struck out a constitutional right5 to nondiscriminatory treat
ment. When the Constitution is fully restored this Right
will be effective. However, a “sit-in” would appear not to
come within the scope of existing criminal statutes.6
In Australia, there are either no state criminal trespass
statutes7 or state statutes which would not reach “sit-ins”.8
In New Zealand, a “sit-in” might be criminal,8 but there
have been no reported cases of a factually similar nature.
In Ghana10 and Nigeria,11 freedom from racial discrim
ination is a constitutional right.
Only in the Union of South Africa would it be clear that a
“sit-in” was criminal12—and here, significantly, the racial
element is a factor in constituting the crime.
5 Article 14, Constitution of 1956.
6 The requisite intent would appear to be lacking for a violation
of the criminal trespass statute, Pakistan Criminal Code, s. 441.
Rahmatullah v. State, 1958 P. L. D. Dacca 350.
7 Western Australia and Queensland.
8 The statutes in New South Wales (Inclosed Lands Protection
Act, 1901-1939, s. 4) and Southern Australia (Trespassing on
Lands Act 1928) apply only to “inclosed lands”—a very restrictive
category. See 23 Australian Law Journal 357 (1949). Victoria’s
statute—Police Offenses Act 1958, s. 20(3) (d)—provides the de
fense of “supposition of right”. See Martin v. Hook, 5 A. L. R. 6
(1899). Tasmania’s statute—Trespass to Lands Act 1862—pro
vides the defense of “reasonable excuse” ; additionally, it may not
be applicable to an urban setting.
9 Police Offenses Act 1927, s. 6A; inserted by Police Offenses
Amendment Act (No. 2) 1952, s. 3.
10 Constitution of Ghana, Article 13, Declaration of Fundamen
tal Principles.
11 Constitution of Nigeria, Chap. I ll , Fundamental Rights, s. 27.
12 Reservation of Separate Amenities Act, Act No. 49 of 1953,
3, Section 2(2), making it an offense for a person of one race
wilfully to enter public premises or a public vehicle set aside for
members of another race.