Shuttlesworth v Birmingham AL Brief for Petitioner

    I n  t h e

Glmtrt of %  lotted
October Term, 1962 

No. 67

F. L, S hu ttlesw orth  and Charles B illu ps ,

Petitioners,

Cit y  op B ir m in g h a m .

ON -WRITS OP CERTIORARI TO T H E  COURT OP APPEALS OP ALABAM A

BRIEF FOR PETITIONERS

C onstance B aker  M otley 
J ack  G reenberg

10 Columbus Circle 
New York 19, N. Y.

A rth u r  D . S hores 
P eter A . H all 
O rzell B illingsley , Jr. 
Oscar W . A dams, Jr.
J. R ichm ond  P earson

Birmingham, Alabama
Attorneys for Petitioners

L eroy D . Clark

of Counsel



INDEX
PAGE

Opinions Below ..............................................................   1

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

Constitutional and Statutory Provisions Involved......... 2

Question Presented........................................................... 3

Statement of the Case ......................................................  3

A rgument  ....................................................................   7

I. Fourteenth Amendment Due Process Imperatives 
Require Reversal of These Convictions ................. 7

A. There Is No Evidence in This Record on
Which These Convictions May Be Affirmed 7

B. This Record Discloses Only an Exercise of
Constitutionally Protected Freedom of As­
sembly and Speech..........................................  9

C. The Ordinance for Violation of Which Peti­
tioners Were Convicted Is Constitutionally 
Vulnerable on the Grounds of Vagueness .... 12

Co n c l u s io n ........................................................................................  13

T able oe Cases

Briscoe v. State of Texas, 341 S. W. 2d 432 ..................  8
Burstyn v. Wilson, 343 U. S. 495 ................................  13

Chaplinsky v. New Hampshire, 315 U. S. 568 ............... 13
Connally v. General Construction Co., 269 U. S. 385 .... 13 
Cox v. New Hampshire, 312 H. S. 569 ..........................  11



11

PAGE

Feiner v. New York, 340 U. S. 315..................................  11

Garner v. Louisiana, 368 U. S. 157 .......................8, 9,10,12
Gilbert v. Minnesota, 254 U. S. 325 ..................................  11

Johnson v. State of Texas, 341 So. 2d 434 ................... 8

King v. City of Montgomery,------A la .------- , 128 So. 2d
341.......................................................................................  8

Kovaes v. Cooper, 336 U. S. 77 ..........................................  11

NAACP v. Alabama, 357 U. S. 449 ..................................  10
National Labor Relations Board v. Fansteel Metallurgi­

cal Corp., 306 U. S. 240 .................................................. 8

Rucker v. State of Texas, 341 So. 2d 434..........................  8

Saia v. New York, 334 U. S. 558 ......................................  13
Schenck v. United States, 249 U. S. 4 7 ..........................  12

Terminiello v. Chicago, 337 U. S. 1, 4 .......................... 11,12
Thompson v. City of Louisville, 362 U. S. 199............... 9
Tucker v. State of Texas, 341 So. 2d 433 ....................... 8
Turner v. City of Memphis, 369 U. S. 350  ................... 9

Winters v. New York, 333 U. S. 507 ..................................  13

O thek  A uthorities

Pollitt, Duke L. J., Dime Store Demonstrations: Events 
and Legal Problems of First Sixty Days, 315 (1960) .. 7, 8



In the

(&nmt nt %  l u t t ^

October Term, 1962 

No. 67

F. L. S hu ttlesw orth  and Chables B illu ps ,

Petitioners,
— v.—

C ity  of B ir m in g h a m .

ON W HITS OF CERTIORARI TO T H E  COURT OF APPEALS OF ALABAM A

BRIEF FOR PETITIONERS

Opinions Below

The opinions of the Court of Appeals of Alabama are 
reported at 134 So. 2d 213 (Shuttlesworth, R. 43) and 134 
So. 2d 215 (Billups, R. 67).

Jurisdiction

The judgments of the Alabama Court of Appeals were 
entered on May 30, 1961 (Shuttlesworth, R. 44; Billups, 
R. 67).

Application for rehearing before the Court of Appeals 
of Alabama was denied on June 20, 1961 (Shuttlesworth, 
R. 45; Billups, R. 68). A  petition to the Supreme Court of 
Alabama for Writ of Certiorari was denied on September 
25, 1961, and application for rehearing was overruled on 
November 16, 1961 (Shuttlesworth, R. 46, 51; Billups,



2

R. 68). The jurisdiction of this Court is invoked pursuant 
to 28 United States Code, §1257 (3), petitioners having 
asserted below, and asserting here, the deprivation of his 
rights, privileges and immunities secured by the Consti­
tution of the United States.

Constitutional and Statutory Provisions Involved

This case involves the followTing constitutional provision:

Section 1 of the Fourteenth Amendment to the Constitu­
tion of the United States.

The case also involves the following provisions of the 
General Code of Birmingham of 1944:

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

“ Section 1436 (1944), A fter Warning. Any person who 
enters into the dwelling house, or goes or remains on 
the premises of another, after being warned not to do 
so, shall on conviction, be punished as provided in 
Section 4, provided, that this Section shall not apply 
to police officers in the discharge of official duties.”

“ Section 369 (1944), Separation of races. It shall be 
unlawful to conduct a restaurant or other place for the 
serving of food in the city, at which white and colored 
people are served in the same room, unless such white 
and colored persons are effectually separated by a 
solid partition extending from the floor upward to a 
distance of seven feet or higher, and unless a separate 
entrance from the street is provided for each compart­
ment” (1930, Section 5288).



3

Question Presented

Alabama has convicted petitioners of “ inciting] or 
aid[ing] or abet [ting] another person to go or remain on 
the premises of another after being warned . . . ” The 
record showed essentially that petitioner Shuttlesworth 
“asked for volunteers to participate in the sit-down dem­
onstrations” and that petitioner Billups was present at 
this request. There was no evidence that either persuaded 
anyone to violate any law, or that anyone following peti­
tioners’ suggestions did violate any law, valid under the 
Fourteenth Amendment to the United States Constitution. 
A Birmingham ordinance requires racial segregation in 
restaurants.

In convicting and sentencing petitioners respectively to 
180 and 30 days hard labor, plus fines, has Alabama denied 
liberty, including freedom of speech, secured by the due 
process clause of the Fourteenth Amendment?

Statement of the Case

Petitioners, Rev. F. L. Shuttlesworth and Rev. Charles 
Billups, were convicted by the Recorder’s Court of the City 
of Birmingham, Alabama and, upon a trial de novo, by an 
Alabama Circuit Court of a violation of Section 824, Gen­
eral City Code of Birmingham, 1944 (R. 8, 59).1 The City’s 
complaint alleged that petitioners, in violation of Section 
824, “ did incite or aid or abet”  the violation of another 
City ordinance, Section 1436, which defines the crime of 
trespass after warning (R. 2, 53).2 Petitioner Shuttles-

1 See page 2, supra, for text of ordinance.
2 See page 2, supra, for text of ordinance.



4

worth was fined $100 and sentenced to 180 days hard labor 
for the City while lesser penalties, $25 and 30 days, were 
imposed on Billups (R. 8, 59).

The convictions, appealed to the Alabama Court of Ap­
peals, were affirmed, followed by unsuccessful attempts to 
secure review by the Supreme Court of Alabama (R. 43-45, 
46-51, 66-68, 69).

The City undertook to sustain its burden of proof on 
the testimony of a single witness who did not personally 
witness any of the facts to which he testified but which the 
Circuit Court found sufficient for conviction. The witness, 
Charles L. Pierce, a Birmingham City detective, testified, 
over the repeated objections of petitioners’ counsel, that he 
was present at petitioners’ trial in Recorder’s Court when 
two of the persons whom petitioners allegedly incited to 
violate a City ordinance, students James Gober and James 
Albert Davis, testified concerning the instant charge (R. 
20-23).

The testimony Detective Pierce heard, and which forms 
the sole basis upon which the convictions were sustained, 
follows:

Gober testified that on March 30,1960 he went to the home 
of Rev. Shuttlesworth where several others, including peti­
tioners, were present and discussed sit-in demonstrations 
by Negro students (R. 27-28). Rev. Shuttlesworth partici­
pated in the discussion (R. 28). He then asked for “ volun­
teers” for sit-in demonstrations (R. 29). Gober referred 
to a “ list” but didn’t know who had made it (R. 29-30). 
James Albert Davis testified that petitioner Billups came 
to Daniel Payne College, where Davis and Gober were 
students, and took Davis in his car to Shuttlesworth’s house 
(R. 31). When Davis arrived, several persons were there, 
including Shuttlesworth, his wife, and a number of other



5

students from the College (R. 31). Rev. Shuttlesworth 
asked for “volunteers” and he (Davis) “ volunteered” to 
go to Pizitz at 10:30 and take part in a sit-in demonstration 
(R. 31). Davis testified a list was made, hut he, also, did 
not know who made the list (R. 31). Finally, Davis testified 
that Rev. Shuttlesworth “ told him or made the announce­
ment at that time that he would get them, out of jail” 
(R. 31-32). To this testimony the detective added that he 
knew it was a fact that Gober and Davis did participate 
in a sit-in demonstration on March 31, 1960 (R. 33).

Upon the foregoing, petitioners were adjudged guilty of 
having incited or aided or abetted Gober, Davis, and other 
students to violate the trespass after warning ordinance 
(R. 40).

At every opportunity, petitioners urged the Fourteenth 
Amendment due process claim now before this Court. They 
first moved to strike the complaint (R. 3), then demurred 
(R. 4), moved to exclude the testimony (R. 6) and for new 
trial (R. 11). Again, in assignment of errors in the Court 
of Appeals (R. 41-42) and petition for certiorari in the 
Supreme Court of Alabama (R. 47-50) a violation of due 
process guaranteed by the Fourteenth Amendment to the 
Federal Constitution was urged.

Petitioners’ due process claim is that: 1) Section 824, 
General Code of Birmingham, as applied to them, deprives 
them of freedom of assembly and speech; 2) there is no 
evidence at all that petitioners incited, aided or abetted any 
violation of law or that a violation of law in fact occurred; 
and 3) Section 824 as applied is so vague as to constitute 
a denial of due process of law in violation of the Fourteenth 
Amendment.

The only court which rendered an opinion was the Ala­
bama Court of Appeals (R. 43-44, 67). It limited review to



6

considering the sufficiency of the evidence to support a 
conviction for violation of Section 824. In Rev. Shuttle s- 
worth’s case that court found it sufficient that “ . . .  ‘Shuttles- 
worth asked for volunteers, and that there were some 
volunteers to take part in sit-down demonstrations’ and 
that Shuttlesworth promised to get them (the students) out 
of jail” (R. 44). The court then held that, “A  sit-down 
demonstration being a form of trespass after warning, 
denotes a violation of both state law and especially of Sec­
tion 1436 of the City Code” (R. 44). Having found that 
the evidence was sufficient to sustain the conviction on the 
ground of incitement, the court then ruled that no Four­
teenth Amendment free speech rights were involved. It 
held that petitioners “ counseled the college students not 
merely to ask service in a restaurant, but urged, convinced 
and arranged for them to remain on the premises pre­
sumably for an indefinite period of time” (R. 44). The 
court found the situation here analogous to illegal sit-down 
strikes in the automobile industry (R. 44).

Rev. Billups’ conviction was upheld on the authority of 
the Shuttlesworth case, except for the following addition: 
On March 30, 1960 Rev. Billups went to Daniel Payne Col­
lege in a car where he picked up one of the students, Davis, 
and drove him to the home of Rev. Shuttlesworth where 
several people had gathered and where Rev. Billups also 
was present (R. 67).



7

A R G U M E N T

I.
Fourteenth Amendment Due Process Imperatives Re­

quire Reversal of These Convictions.

A. There Is No Evidence in This Record on Which 
These Convictions May Be Affirmed.

The Alabama courts have held the facts set forth above 
sufficient to convict petitioners of inciting a violation of an 
ordinance which provides that, “ Any person who . . . goes 
or remains on the premises of another, after being warned 
not to do so, shall on conviction, be punished. . . . ”

Petitioner Shuttlesworth asked for “volunteers” to par­
ticipate in a sit-in demonstration.3 But there is no evidence 
that he incited these volunteers to “ remain on the premises 
of another, after being warned not to do so.” Moreover, 
there is no evidence in this record to sustain a finding that 
these volunteers did in fact remain on the premises of 
another after being duly warned not to do so.

Even the Alabama Court of Appeals recognized that 
there was no evidence to support the charge and so it 
surmised that petitioners “ counseled the college students 
not merely to ask service in a restaurant, but urged, eon-

3 See, Pollitt, Duke L. J., Dime Store Demonstrations: Events 
and Legal Problems of First Sixty Days, 315 (1960).

Prior to February 1960, lunch counters throughout the South 
denied normal service to Negroes. Six months later, lunch counters 
in 69 cities had ended their discriminatory practices (N. Y. Times, 
Aug. 11, 1960, p. 14, col. 5). By September 1961, desegregation 
had occurred in business establishments located in more than 100 
cities in fourteen states (The Student Protest Movement: A Re­
capitulation, Southern Regional Council, Sept. 1961); and since 
then the number has continued to increase without apparent inci­
dent.



8

vinced and arranged for them to remain on the premises 
presumably for an indefinite period of time” (R. 44). 
(Emphasis added.)

The Alabama Court then rationalized that, “ There is a 
great deal of analogy to the sit-down strikes in the auto­
mobile industry referred to in National Labor Relations 
Board v. Fansteel Metallurgical Corp., 306 U. S. 240” 
(R. 44). This may very well be true, but this record is 
devoid of any proof of the analogy. There is not a scintilla 
of evidence in this record that petitioners urged, suggested, 
or intended the sit-in demonstrators engage in any unlawful 
conduct. What petitioners in fact urged is simply and 
plainly not shown by this record. All the record shows as 
to petitioner Billups is that he drove one of the students 
to Rev. Shuttlesworth’s home and was present during the 
discussion. For all that the record shows, this petitioner 
remained silent.

Sit-down demonstrations have taken many forms.4 And 
many of these convictions have been reversed as not having 
been evidence of a crime. See Garner v. Louisiana, 368 
U. S. 157; see Pollitt, op. cit. supra, at p. 350 (trespass 
convictions of students convicted in Raleigh, N. C. dis­
missed) ; King v. City of Montgomery,------ A la .------ , 128
So. 2d 341 (trespass convictions for sit-in in private hotel 
reversed); Briscoe v. State of Texas, 341 S. W. 2d 432; 
Rucker v. State of Texas, 341 So. 2d 434; Tucker v. State 
of Texas, 341 So. 2d 433; Johnson v. State of Texas, 341 
So. 2d 434 (convictions of sit-ins for unlawful assembly 
reversed). Moreover, the students who sought service at 
the lunch counters in the Birmingham cases before this 
Court for review did not violate any valid ordinance by 
peacefully seeking such food service since the Birmingham

Ibid.



9

ordinance requiring racial segregation in restaurants or 
other places serving food is unconstitutional on its face.5 
Turner v. City of Memphis, 369 U. S. 350.

The due process criterion applied by this Court in Garner, 
supra, and Thompson v. City of Louisville, 362 U. S. 199, 
must be invoked here to void these convictions on records 
barren of evidence.

B. This Record Discloses Only an Exercise of Constitutionally 
Protected Freedom of Assembly and Speech.

Protest demonstrations against racial discrimination in 
places of public accommodation in the United States ante­
date by almost a century the current wave of Negro student 
“ sit-in” or “ sit-down” demonstrations which commenced in 
Greensboro, North Carolina on February 1, I960.6

The more recent Negro student sit-in demonstrations 
have been viewed from their inception as the exercise of

5 “  ‘Sec. 369. Separation of Races.
It shall be unlawful to conduct a restaurant or other place 

for serving of food in the city, at which white and colored peo­
ple are served in the same room, unless such white and colored 
persons are effectually separated by a solid partition extending 
from the floor upward to a distance of seven feet or higher, 
and unless a separate entrance from the street is provided for 
each compartment’ ” (1930, §5288).

This ordinance is judicially noticeable by the Alabama courts, 
Ala. Code Ann. Tit. 7, §429 (1) (1940). See Shell Oil v. Edwards, 
263 Ala. 4, 9, 81 So. 2d 535, 539 (1955) ; Smiley v. City of Bir­
mingham, 255 Ala. 604, 605, 52 So. 2d 710, 711 (1951). “ ‘The act 
approved June 18, 1943, requires that all courts of the State take 
judicial knowledge of the ordinances of the City of Birmingham.’ ” 
Monk v. Birmingham, 87 F. Supp. 538 (N. D, Ala. 1949), aff’d 
185 F. 2d 859, cert, denied 341 U. S. 940. And this Court takes 
judicial notice of laws which the highest court of a state may 
notice. Junction B.B. Co. v. Ashland Bank, 12 Wall. (U. S.) 226, 
230; Ahie State Bank v. Bryan, 282 U. S. 765, 777, 778; Adams v. 
Saenger, 303 U. S. 59; Owings v. Hull, 9 Peters (U. S.) 607, 625.

6 Westin, “Bide-In,”  American Heritage, Vol. XIII, No. 5, p. 
57 (1962).



10

constitutionally guaranteed free speech under at least some 
circumstances. Garner v. Louisiana, 368 U. S. 157. (Con­
curring Opinion of Mr. Justice Harlan.) They are, by their 
inherent and manifest nature, a protest against racial 
discrimination.7

The record here discloses only that these petitioners met 
with Negro students shortly after these protests began on 
February 1, 1960 and discussed these demonstrations. The 
sole witness in this case testified that he heard one of the 
students testify that “ . . . the meeting was in the living 
room of Reverend Shuttlesworth’s house and that Reverend 
Shuttlesworth participated in the discussion about the sit- 
down demonstrations” (R. 28). Petitioner Shuttlesworth 
asked for “volunteers” to participate in a “ sit-in” or “ sit- 
down” demonstration. At one point, petitioner Shuttles­
worth told one of the students that he would get him out 
of jail. Beyond this, there is no evidence in this record 
concerning precisely the activities petitioners are supposed 
to have counseled and no evidence concerning the “ sit-in” 
or “ sit-down” demonstrations themselves which followed 
this counsel.

The Birmingham city ordinance requiring racial segrega­
tion in public restaurants makes clear that the City’s policy 
was one of racial segregation in this area and that the sit-in 
demonstrations here as in other communities across the 
South were designed as a protest against this state policy.

The due process clause of the Fourteenth Amendment 
guarantees the right to make a peaceful protest against 
state enforced racial segregation. NAACP  v. Alabama, 357 
U. S. 449. The evidence in the students’ cases before this 
Court is uncontradicted that the students were at all times

7 Note, Lunch Counter Demonstrations; State Action and the 
Fourteenth Amendment, 47 Virginia Law Review 105.



11

peaceful. At the very least, the constitutional protection ex­
tends to a discussion in a private home of sit-ins, especially 
where it is not demonstrated that any unlawful action was 
discussed or, in fact, taken.

To sustain these convictions would license Alabama to 
invade the privacy and freedom of every home where anti- 
discrimination discussions take place. Mr. Justice Brandeis’ 
admonition in his dissenting opinion in Gilbert v. Minnesota, 
254 U. S. 325, where this Court had upheld, against a sim­
ilar free speech consideration, a statute proscribing the 
teaching of pacifism is particularly applicable here. Justice 
Brandeis warned that the statute there made it a crime 
“ to teach in any place a single person that a citizen should 
not aid in carrying on a war, no matter what the relation 
of the parties may be. Thus the statute invades the privacy 
and freedom of the home. Father and mother may not fol­
low the promptings of religious belief, of conscience or of 
conviction, and teach son or daughter the doctrine of paci­
fism. If they do any police officer may summarily arrest 
them” (at pp. 335-336).

Petitioners here need not claim an absolute immunity 
from state regulation of their free speech activities, but 
they claim that their discussions on the night of March 30, 
1960, are protected against the punishment which the state 
here seeks to impose, since there has been no showing that 
their discussion was “ . . . likely to produce a clear and 
present danger of a serious substantive evil that rises far 
above public inconvenience, annoyance, or unrest.” Ter- 
nvinietto v. Chicago, 337 U. S. 1, 4. Petitioners are not 
charged with having conducted a meeting in an unlawful 
manner, e.g., by sound truck, Kovacs v. Cooper, 336 U. S. 77 
or without a permit where one was required, Cox v. New 
Hampshire, 312 U. S. 569, or under circumstances dangerous 
to public safety, e.g., Feiner v. New York, 340 U. S. 315,



12

but cf. Terminiello v. City of Chicago, 337 U. S. 1, or to 
have spoken or met in a manner otherwise illegal. Neither 
have they been punished for crime for having created a 
clear and present danger of a substantive evil which the 
state has the power to prevent. Cf. SchencJc v. United 
States, 249 U. S. 47.

The Court of Appeals of Alabama rested its free speech 
restriction in this case upon the fact that petitioner Shut- 
tlesworth had promised to get the students out of jail; 
but, as pointed out above, there is no evidence in this 
record at all that Shuttlesworth requested any one to 
perform an unlawful act. Many of the sit-in demonstrators 
have been arrested and their convictions have been re­
versed. And, as this Court ruled in the Garner case supra, 
such demonstrations are not necessarily a crime.

The convictions of these petitioners under the facts of 
this case are so clearly repugnant to our common notions 
of rights protected by the constitutional guarantees of 
freedom of assembly and speech as to require reversal by 
this Court.

C. The Ordinance for Violation of Which Petitioners 
Were Convicted Is Constitutionally Vulnerable on 
the Grounds of Vagueness.

Petitioners were convicted of inciting students to violate 
the trespass after warning ordinance of the City of Bir­
mingham. This ordinance, which provides that, “ It shall 
be unlawful for any person to incite, or aid or abet in, the 
violation of any law or ordinance of the City, or any pro­
vision of state law the violation of which is a misdemeanor”, 
is constitutionally vague.

The record here shows that these petitioners did no more 
than discuss sit-in demonstrations and offer to assist those 
who volunteered for such demonstrations if they should



13

become embroiled with the law. The ordinance which con­
victs them clearly did not give fair warning that to discuss 
such a sit-in protest is a crime. Indeed, as observed, supra, 
often the demonstrations have resulted in desegregation; 
when criminal prosecution has ensued, frequently it has 
failed.

This Court has repeatedly held that a criminal statute 
or ordinance of this kind must give fair warning to a defen­
dant of what acts are prohibited, Connally v. General Con­
struction Co., 269 U. S. 385; and where, as in this case, free 
speech encroachments are involved, the statute must be 
even more specific. Winters v. New York, 333 U. S. 507; 
Burstyn v. Wilson, 343 U. S. 495; Saia v. New York, 334 
U. S. 558; Chaplinsky v. New Hampshire, 315 U. S. 568. 
Consequently, where the law has given no notice that lawful 
free speech may be criminal, these convictions cannot be 
sustained.

CONCLUSION

For all the foregoing reasons, the petitioners’ convic­
tions by the Alabama courts must be reversed.

C onstance B aker M otley 
J ack  Greenberg

10 Columbus Circle 
New York 19, N. Y.

A rth u r  D. S hores 
P eter A . H all 
O rzell B illingsley , J r . 
Oscar W . A dams, J r .
J. R ichmond  P earson 

Birmingham, Alabama

Attorneys for Petitioners
L eroy D . Clark  

of Counsel