Ware v. M.L. Nichols Brief of Plaintiffs in Opposition to Motion to Dismiss and in Support of Motion for Summary Judgement

    ̂s JO
IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF MISSISSIPPI 
GREENVILLE DIVISION

WILLIAM WARE, et al.,
Plaintiffs,

v.
M. L. NICHOLS, et al.,

Defendants.

CIVIL ACTION 
NO. GC 6511

BRIEF OF PLAINTIFFS IN OPPOSITION 
TO DEFENDANTS' MOTION TO DISMISS 
AND IN SUPPORT OF MOTION FOR 
SUMMARY JUDGMENT_________________

On April 26, 1965, the Supreme Court of the United States
decided Dombrowski v. Pfister. ___U.S.___,33 United States Law
Week 4321, which, in all material respects, controls this case.

.1

THIS COURT SHOULD NOT ABSTAIN

Plaintiffs have attacked Mississippi's Criminal Syndicalism 
Act of June 11, 1964 (Senate Bill No. 2027) on its face, as 
abridging free expression (Complaint w  VII, IX) and as applied 
for the purpose of discouraging free speech activities (Complaint 
*¥ VIII). Under these circumstances, this Court may not abstain 
pending authoritative interpretation of the criminal syndicalism 
statute in the Mississippi state courts. The Supreme Court set­
tled the matter in Dombrowski v. Pfister. ___U.S.___, 33 U.S.L.W.
4324:



The District Court also erred in holding 
that it should abstain pending authoritative 
interpretation of the statutes in the state 
courts, which might hold that they did not 
apply to SCEF [one of the plaintiffs seek­
ing injunctive relief against enforcement of 
Louisiana's anti-subversive laws], or that they 
were unconstitutinal as applied to SCEF.
We hold the abstention doctrine is inappropriate 
for eases -such as the present one where unlike 
Douglas v. City of Jeannette, statutes are justi­
fiably attacked on their face as abridging free 
expression, or as applied for the purpose of 
discouraging protected activities.

II
THE MISSISSIPPI CRIMINAL SYNDICALISM 
ACT IS UNCONSTITUTIONAL ON ITS FACE

Mississippi's Criminal Syndicalism Act on its face abridges
First-Fourteenth Amendment freedoms of speech, assembly and
petition and is unduly vague, uncertain and broad.

A. It is now settled that the First-Fourteenth Amendment
guarantee of free speech protects the advocacy of the abstract
doctrine of violent overthrow of the government. Yates v. United
States. 354 U.S. 293 (1957); Noto v. United States. 367 U.S. 290
(1961). Under this principle, the Criminal Syndicalism Act is
void on its face as an abridgment of free speech because it

_!/
makes criminal the mere advocacy of the advocacy of crime. This
is seen from the following analysis of the Act:

1/ As the Supreme Court said in Noto v. United States. 367 U.S.
at 297-98:

We held in Yates. and we reiterate now, that the 
mere abstract teaching of Communist theory, including 
the teaching of the moral propriety or even moral 
necessity for a resort to force and violence, is not 
the same as preparing a group for violent action and 
steeling it to such action.

2



Section 2(1). Any person is guilty of a felony who 
advocates, instigates, suggests, teaches or aids and 
abets the propriety of committing [sic] the doctrine or 
precept which advocates, teaches, or aids and abets the 
commission of crime or other unlawful acts or methods of 
terrorism as a means of accomplishing or effecting a change 
in agricultural or industrial ownership or control or in 
effecting any political or social change.

Section 2(2). Any person is guilty of a felony who 
justifies or attempts to justify the doctrine or precept 
which advocates, teaches, or aids and abets the commission 
of crime or other unlawful acts or methods of terrorism as 
a means of accomplishing or effecting a change in agri- 
r.cuLjtura 1 or industrial ownership or control or in effect­
ing any political or social change with intent to exemplify, 
approve, spread, advocate, instigate, teach, aid, suggest 
or further the doctrine or precept which advocates, teaches, 
or aids and abets the commission of crime or other unlawful 
acts or methods of terrorism as a means of accomplishing 
or effecting a change in agricultural or industrial owner­
ship or control or in effecting any political or social 
change.

Section 2(3), Any person is guilty of a felony who 
prints, publishes, edits, issues, circulates, sells, dis­
tributes or publicly displays any book, paper, pamphlet, 
document, poster, handbill, or written or printed matter 
in any form whatsoever containing, advocating, instigating, 
advising, suggesting, aiding and abetting, or teaching the 
doctrine or precept^which advocates, teaches, or aids and 
abets the commission of crime or other unlawful acts or 
methods of terrorism as a means of accomplishing or effect­
ing a change in agricultural or industrial ownership or 
control, or in effecting any political or social change.J2j

Section 2(4). Any person is guilty of a felony who 
organizes or helps to organize or knowingly becomes a 
member of, or voluntarily assembles with any society, organi 
zation, group; or assemblage of persons organized, formed, 
or assembled to advocate, teach, aid and abet the doctrine 
or precept which advocates, teaches, or aids and abets the 
commission of crime or other unlawful acts or methods of 
terrorism as a means of accomplishing or effecting a change 
in agricultural or industrial ownership or control, or in 
effecting any political or social change.

Section 2(5). Any person is guilty of a felony who 
practices or commits any act advised, advocated, taught, or 
aided -and abetted by the doctrine or precept which ad­
vocates, teaches, or aids and abets the commission of crime 
or other unlawful acts or methods of terrorism as a means 
of accomplishing or effecting a change in agricultural or 
industrial ownership or control or in effecting any politi­
cal or social change with intent to accomplish a change 
in agricultural or industrial ownership or control or effect 
ing any social or political change.

2/ In addition to the other grounds of invalidity advanced, 
infra. 2(3) lacks any scienter requirement and is eo ipsq bad 
under Smith v. California. 361 U.S. 147 (1959).

3 -



Section 3. Whenever two or more persons assemble or 
consort for the purpose of advocating, encouraging, teach­
ing or suggesting the doctrine or precept which^advocates, 
teaches, or aids and abets the commission of crime or other 
unlawful acts or methods of terrorism as a means of accom­
plishing or effecting a change in agricultural or industrial 
ownership or control or in effecting any political or social 
change, such assemblage is unlawful and every person volun­
tarily participating therein by his presence is guilty of a 
felony.

Section 4. The owner, lessee, agent, superintendent, 
janitor, caretaker,-or other person in charge or occupant 
of any place, building, room or rooms, or structure who 
knowingly permits therein any assembly or consort of per­
sons prohibited by the provisions of Section 3 of this act 
is guilty of a misdemeanor.

Further abstracting the statute, it is seen that the follow­
ing acts are punishable:

Suggesting the propriety of the doctrine, etc. (2(1));
Attempting to justify the doctrine, etc., (2(2));
Publishing a book containing the doctrine, etc.,

(2(3));
Assembling with persons assembled to teach the doc­

trine (2(4));
Committing any act advised by the doctrine, etc.,

(2(5));
Being present at any assemblage assembled for the 

purpose of suggesting the doctrine, etc., (3); or
Permitting the assembly of persons violating section 

3(4).

It is difficult to imagine a statute more patently an abridg­
ment of First-Fourteenth Amendment guarantees of free speech, 
press and assembly. The statute purports to reach speech of a 
character totally without the sphere of criminal incitement; its 
invalidity is clear beyond peradventure. Kingsley Copp> ..y. 
Regents. 360 U.S. 684, 689 (1959); New York Times. .Gp .̂ v . Sullivan. 
376 U.S. 254, 269-71 (1964); Garrison v. Louisiana. 379 U.S. 64, 
70, 73-74 (1964).

4 -



Presumably, a teacher would violate 2(l) if he approvingly 
taught his class about the Boston Tea Party. 3/ A person who 
attempted to justify the actions of his state's governor in 
committing criminal contempt in a civil rights matter would fall 
under the ban of 2(2). No doubt the Government Printing Office 
is in violation of 2(3) for printing editions of the Declaration 
of Independence, for that document contains the language:
"Whenever any form of government becomes destructive of these ends 
[life, liberty and the pursuit of happiness] it is the right of 
the people to alter or abolish it . . .  . When a long train of 
abuses and usurpations pursuing invariably the same object evinces 
a design to reduce them under absolute despotism, it is their right 
it is their duty to throw off such government and to provide new 
guards for their-future security." A worker who attended a labor 
union meeting at which an illegal strike was advocated might well 
be subjected to prosecution under 2(4).

Any person who reads Das Kapital. an act doubtlessly advised by 
communist doctrine, should fear prosecution under 2(5), if he reads 
with the requisite intent. A Sunday stroller who happened upon 
a street meeting of persons calling themselves syndicalists, and 
who was drawn into discussion with them, might well fear prosecu­
tion under section 3.

_2/ Section 2(l) is perhaps the most pernicious section of all, 
for it makes it a felony to "suggest . . .  the duty [or] propriety 
of committing crime . . .  as a means of . . . effecting any politi­
cal or social change." This vague and sweeping language would not 
only have made Thomas Jefferson a felon (see text, infra.) but also 
Henry David Thoreau for his essay "On The Duty of Civil Disobedient 
and Mohandas K. Gandhi for his various writings based on Thoreau.
It is a matter of common knowledge that a central philosophy of the 
civil rights movement is derived largely from these writings of 
Thoreau and Gandhi. (Cf,, Brief of Defendants, p. 10.)

5



B, So analyzed, the Mississippi criminal syndicalism statute 
must also fall because it is unduly vague, uncertain and broad.
In the area of First Amendment freedoms, the effect of an over­
broad statute is peculiarly pernicious, as it creates a "danger 
zone", see Dombrowski v. Pfister. supra. 33 U.S.L. Week at 4325, 
within which protected expression may be inhibited.

In Dombrowski v. Pfister. supra, and Baogett v. Bullitt, 377 
U.S. 360 (1964), the Supreme Court struck down for overbreadth 
state statutes which sought to punish "subversive" organizations 
or persons.

In Baaaett v. Bullitt. 377 U.S. 360 (1964), the Supreme Court 
held that a state statute requiring state employees to take an oath 
as a condition of employment that they were not "subversive" per­
sons denied due process because it was unduly vague, uncertain and 
broad. The court described the oath in the following terms (377 
U.S. at 360):

A teacher must swear that he is not a subversive 
person: that he is not one who commits an act or
who advises, teaches, abets or advocates by any 
means another person to commit or aid in the com­
mission of any act intended to overthrow or alter, 
or to assist the overthrow or alteration, of the 
constitutional form of government by revolution, 
force or violence.

The Court found the oath lacking "in terms susceptible of 
objective measurement" (377 U.S. at 367); the Court found that it 
(as well as the complaining state-employed teachers) was unable to 
answer rudimentary questions, such as: "Does the statute reach
endorsement or support for Communist candidates for office? Does 
it reach a lawyer who represents the Communist Party or its members 
or a journalist who defends constitutional rights of the Communist 
Party or its members or anyone who supports any cause which is like­
wise supported by Communists or the Communist Party?"

Similar questions may be asked of the application of Mississippi 
Criminal Syndicalism Act; the answers will be similarly lacking.
For example, does the statute reach a minister who "suggests" that

6



an inter-racial couple go North to be married, in violation of 
Mississippi's anti-miscegenation statute? _4/ Does the statute 
reach the attempt by a newspaper editor to justify in -print the 
conduct of a racially integrated group riding in a taxicab, in vio­
lation of Mississippi law. 5/ in order to promote full social equaliv 
between the races? Does the statute reach the person who attends 
a meeting of a civil rights organization held for the purpose of 
proposing means for eliminating segregation? _6/ If anything, the 
statute in Baaoett v. Bullitt is less vague than Mississippi's 
criminal syndicalism statute.

The Court in Dombrowski v. Pfister. following Baggett v. Bullitt, 
struck down the Louisiana Subversive Activities and Communist Con­
trol Acts for vagueness, saying:

Where, as here, protected freedoms of expression 
and association are similarly involved, we see no 
controlling distinction in the fact that the defi- 
nition is used to provide a standard of criminality 
rather than the contents of a test oath.

This Court is bound by the adjudications in Baggett v. Bullitt 
and Dombrowski v. Pfister. whose teachings on the vagueness doc­
trine clearly control this case; insofar as Whitney v. California.
274 U.S. 357 (1927) suggests a different result, it has been sub 
silentio overruled by these decisions. Whitney rejected a vague-

4/ Miss. Code Ann., 1942, §§ 459, 2000. The act achieves total 
obscurity with the word "suggests”; there is no legislative or judi­
cial gloss available anywhere giving any indication what kind of 
conduct would render a person criminally liable under that phrase­
ology. A better hornbook example of the indispensability of the 
void-for-vagueness doctrine in the area of free speech could scarcely 
be invented.
_5/ Miss. Code Ann., 1942, §§ 3499, 3500.
6/ See Miss. Code Ann., 1942, § 2056.

7



ness attack on the California Criminal Syndicalism Act, 274 U.S. 
at 368-69, _Z/ discussing the claim against the background of 
cases like International Harvester Co, v, Kentucky, 234 U.S. 216 
(1914); United States v. L. Cohen Grocery Co.. 255 U.S. 81 (1921); 
Nash v. United States. 229 U.S. 373 (1913); and Miller v. Strahl,
239 U.S. 426 (1915) -- all decisions involving challenges to 
economic regulatory legislation. But those cases, along with 
Whitnev. have been drained of all vitality in the First-Fourteenth 
Amendment area. In a line of decisions from Strombera v. California. 
283 U.S. 359 (1931), through Winters v. New York. 333 U.S. 507, 509- 
10, 517-18 (1948), Smith v. California. 361 U.S. 147, 151 (1959), 
and United States v. National Dairy Products Co.. 372 U.S. 29, 36 
(1963), to Cox v. Louisiana. 379 U.S. 536, 551-52 (1965), the 
Supreme Court has developed a standard of impermissible vagueness 
in First-Fourteenth Amendment cases far different from that em­
ployed in economic regulation cases. This development was explicit­
ly recognized in the National Dairy Products case, 372 U.S. at 36:

[W]e also note that the approach to "vagueness" 
governing a case like this is different from 
that followed in cases arising under the First 
Amendment. There we are concerned with the 
vagueness of the statute "on its face" because 
such vagueness may in itself deter constitutionally 
protected and socially desirable conduct. See 
Thornhill v. Alabama, 310 U.S. 88, 98, 84 L.ed 
1093, 1100, 60 S.Ct. 736 (1940); NAACP v. Button,
371 U.S. 415, 9 L.ed 2d 405, 83 S.Ct. 328. N0>
such factor is present here where the statute is 
directed only at conduct designed to destroy com­
petition, activity which is neither constitutionally 
protected nor socially desirable . . . .  The 
reliance of National Dairy . . .  on First Amendment 
cases is therefore misplaced.

7/ The only section of the California Criminal Syndicalism Act 
presented to and upheld by the Supreme Court provided:

Sec, 2 Any person who: • . . (4) organizes 
or assists in organizing, or is or knowingly 
becomes a member of, any organization, society, 
group or assemblage of persons organized or 
assembled to advocate, teach or aid and abet 
criminal syndicalism . . .
Is guilty of a felony and punishable by 

imprisonment.
(Note continued on following page) 

-  8 -



And nowhere is the special significance of the vagueness doctrine 
in First-Fourteenth Amendment cases more clearly recognized than 
in Dombrowski v. Pfister. 33 U.S.L.W. at 4323:

Because of the sensitive nature of constitutionally 
protected expression, we have not required that all 
of those subject to overbroad regulations risk pro­
secution to test their rights. For free expression -- 
of transcendent value to all society, and not merely 
to those exercising their rights -- might be the loser, 
Cf, Garrison v. Louisiana. 379 U.S. 64, 74-75. For 
example, we have consistently allowed attacks on 
overly broad statutes with no requirement that the 
person making the attack demonstrate that his own 
conduct could not be regulated by a statute drawn 
with the requisite narrow specificity. Thornhill v. 
Alabama. 310 U.S. 88, 97-98; NAACP v. Butrcn. [371 U.S.] 
at 432-433; cf. Aotheker v. Secretary of State. 378 
U.S. 500, 515-517; United States v. Raines. 362 U.S.
17, 21-22. We have fashioned this exception to the 
usual rules governing standing, see United States v. 
Raines, s upr a. because of the " . . .  danger of 
tolerating, in the area of First Amendment freedoms, 
the existence of a penal statute susceptible of sweep­
ing and improper application." NAACP v. Button.
[371 U.S.] at 433.

Finally, defendants purport to justify the criminal syndicalism 
statute by claiming (Defendants’ Brief, pp. 10-11) "that the real 
purpose of the act was to prevent activities of certain groups and 
organizations about which there has recently been considerable 
publicity, and in an effort to protect members of the class who 
plaintiffs purpose to represent . . . .  In rural Mississippi, where 
the majority of Negroes are tenant farmers or sharecroppers, it is 
not hard to see that the Mississippi criminal syndicalism act can 
be effectively used to protect them from the commission of the very 
acts condemned by the Mississippi statute."

Such a statement reflects a serious misconception of our con­
stitutional scheme of government:

(continued)
Mississippi’s section 2(4) significantly alters the California 

model, in that it makes it a felony to voluntarily assemble with 
such an organization -- quite irrespective of the defendant s know­
ledge of the character of the organization. Therefore, this sec­
tion is invalid under the rule of Wieman v. Updegralf, 344 U.S, 183 
(1952), as well as for the other reasons advanced herein.

9 -



Those who won our independence by revolution 
were not cowards. They did not fear political 
change. They did not exalt order at the cost 
of liberty. To courageous, self-reliant men, 
with confidence in the power of free and fear­
less reasoning applied through the processes of 
popular government, no danger flowing from speech 
can be deemed clear and present, unless the 
incidence of the evil apprehended is so imminent 
that it may befall before there is opportunity 
for full discussion. If there be time to expose 
through discussion the falsehood and fallacies, 
to avert the evil by the processes of education, 
the remedy to be applied is more speech, not 
enforced silence. (Justice Brandeis, concurring, 
in Whitnev v. California. 274 U.S, at 377.)

Ill
PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF

There can be no doubt that under the standards set forth in 
Dombrowski v. Pfister. supra, plaintiffs have adequately alleged 
irreparable injury sufficient to support injunctive relief. The 
direction in which this Court should proceed is clearly marked by 
the treatment directed in the Dombrowski case on remand. There, 
the Court directed the District Court to proceed with the "prompt 
framing of a decree restraining prosecution of the pending indict­
ments against the individual appellants • . . and prohibiting further 
acts enforcing the sections of the Subversive Activities and Commu­
nist Control Acts here found void on their face."

Since the Mississippi Criminal Syndicalism Act is void on its 
face as violative of free speech guarantees and for vagueness, this 
Court is required, under Dombrowski. to grant plaintiffs' motion 
for summary judgment. On any view of the case however, defendants 
motion to dismiss must still be denied, for the allegations con­
tained in Will of plaintiffs' complaint clearly state a cause of 
action, alleging as they do that defendants are "invoking the statute, 
in bad faith to impose continuing harassment in order to discourage

10



[plaintiffs'] activities 
33 U.S.L.W. at 4324).

It (Dembrowski v. Pfister. supra.

Respectfully submitted,

CARSIE A. HALL 
JACK H. YOUNG

115''2 North Farish Street 
Jackson, Mississippi

R. JESS BROWN
125^ North Farish Street 
Jackson, Mississippi

HENRY M. ARONSON
538^ North Farish Street 
Jackson, Mississippi

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
MELVYN ZARR

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs

ANTHONY G. AMSTERDAM 
3400 Chestnut Street 
Philadelphia, Pa.

Of Counsel