Memorandum from Cohen to Sullivan; Data on District Populations for House Bill 7 and Senate Bill 2

    I n  t h e

Supreme ( ta rt nf %  Imtrfr I ta rs
October Term, 1962 

No. 66

J ames Gober, J ames A lbert D avis, R oy H utchinson, 
R obert J. K ing, R obert P arker, W illiam W est, R obert 
D. S anders, R oosevelt W estmoreland, J essie W alker, 
W illie J. W illis,

Petitioners,

City of B irmingham.

O N  w r i t  O F C ERTIO RA RI TO T H E  CO U RT O F A PPEA L S O F ALABAM A

BRIEF FOR PETITIONERS

Constance B aker Motley 
J ack Greenberg

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores 
P eter A. H all 
Orzell B illingsley, J r. 
Oscar W. A dams, J r.
J. R ichmond P earson

Birmingham, Alabama
Attorneys for Petitioners

Leroy Clark 
W illiam T. Coleman, J r.
Michael Meltsner 
W illiam R. Ming, J r.
J ames M. N abrit, III 
Louis H. P ollak 

Of Counsel



INDEX

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

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

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

Questions Presented........................................................ 3

Statement of the Case...................................................... 4

Summary of Argument ..................................................  16

A rgument

I. Alabama’s Judgments in These Cases Are In­
consistent With the Constitutional Mandate of
Equal Protection................................................  18
A. Petitioners’ Convictions Were Decreed by

Birmingham’s Restaurant Segregation Or­
dinance ...........................................................  18

B. Petitioners’ Convictions Were Decreed by
a Massive State Segregation Policy ..........  23

C. State Enforcement of Private Racial Dis­
crimination Is Likewise Proscribed by the 
Fourteenth Amendment................................  25

D. No Essential Property Right of the De­
partment Store Is Infringed Here .............. 29

E. The State May Not Arrest and Convict Peti­
tioners for Having Violated the State’s Seg­
regation Policy in Premises in Which the 
State Is Deeply Involved Through Its Li­
censing and Regulatory Powers .................  37

PAGE



11

F. These Convictions Must Be Reversed Since, 
in Addition to the Foregoing, Alabama Has 
Failed to Protect Petitioners’ Rights to 
Equal Access to Public Accommodations .... 39

II. The Decision Below Conflicts With Decisions 
of This Court Securing the Right of Freedom 
of Expression Under the Fourteenth Amend­
ment to the Constitution of the United States .... 44
A. The Enforcement of the State and City Seg­

regation Policy and the Interference of the 
Police Violated Petitioners’ Right to Free­
dom of Expression .......................................  44

B. The Convictions Deny Petitioners’ Right to 
Freedom of Expression in That They Rest 
on a Statute Which Fails to Require Proof 
That Petitioners Were Requested to Leave 
by a Person Who Had Established Author­
ity to Issue Such a Request at the Time

PAGE

Given ........................................................   48

Conclusion......................................................................  51

Table op Cases

Abrams v. United States, 250 U. S. 616 .... ................  30
Apex Hosiery Co. v. Leader, 310 U. S. 469 (1940) ......  32

Bailey v. Patterson, 369 U. S. 31 ................................  18
Baker v. Carr, 369 U. S. 186 ..................    37
Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) .... 23
Barrows v. Jackson, 346 U. S. 249 ..................... .......18, 32
Betts v. Easley, 161 Kans. 459, 169 P. 2d 831 .... ...... . 39



I l l

Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 ..........  30
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) .............................. .................................. . 23
Boynton v. Virginia, 364 U. S. 454 ..................... .....  18
Brearcl v. Alexandria, 341 U. S. 622 ......... ...............28, 45
Browder v. Gayle, 142 F. Supp. 707, aff’d 352 U. S.

903 ...............................................................................  24
Brown v. Board of Education, 347 U. S. 483 ......... ........ 18
Buchanan v. Warley, 245 U. S. 60 ........................... . 18
Burstyn v. Wilson, 343 U. S. 495 ................................ 49
Burton v. Wilmington Parking Authority, 365 17. S.

715 ....................................... .......... .......... 16,18, 39, 40, 43

PAGE

In Be Carple’s Estate, 140 Misc. 459, 250 N. Y. S. 680
(Surr. Ct. 1931) _____ _______ ______ ____ ____ 32

Catlette v. United States, 132 F. 2d 902 (4th Cir. 1943) 40
Central Iron Co. v. Wright, 20 Ala. App. 82, 101 So.

815  .............................................................................  50
Chaplinsky v. New Hampshire, 315 U. S. 568 ............ . 49
Civil Bights Cases, 109 U. S. 3 ............... .........16, 39, 40, 42
Connally v. General Construction Co., 269 U. S. 385 49
Cooper v. Aaron, 358 U. S. 1 ...................................... .18, 47
Cruger v. Phelps, 21 Misc. 252, 47 N. Y. S. 61 (Sup.

Ct. 1897)  ........................................ .......................  31

D’Arcangelo v. D’Arcangelo, 137 N. J. Eq. 63, 43 A. 2d
169 (Ch. 1945) ......................... ............... ........ ...........  32

Davidson v. Wilmington Trust Co., 23 Del. Ch. 1, 2
A. 2d 285 (Ch. 1938) ................ ..................... ...........  31

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949)
aff’d 336 U. S. 933 .............................. .......................  18

District of Columbia v. John B. Thompson Co., 346 
U. S. 100 3 0



IV

Dwyer v. Kuchler, 116 N. J. Eq. 426, 174 Atl. 154 (Oh. 
1934) ............................. .............................................. 31

Pay v. New York, 332 U. S. 261 ...................................  27
In Re Forte’s Will, 149 Misc. 329, 267 N. Y. S. 603

(Suit. Ct. 1933) _____ ______________ ________  32
Freeman v. Retail Clerks Union, Washington Superior 

Court, 45 Lab. Rel. Ref. Man. 2334 (1959) ......... . 47

Garner v. Louisiana, 368 U. S. 157 ........... ...27, 44, 45, 50
Gilbert v. Minnesota, 254 U. S. 325 ............................. 29
Green v. State, 58 Ala. 190 .................. ....................  24

In Re Haight’s Will, 51 App. Div. 310, 64 N. Y. S.
1029 (2d Dept. 1900) ........................ .........................  31

Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422 (1890) .... 31
Henneford v. Silas Mason Co., 300 U. S. 577 .................  31
Holmes v. Atlanta, 350 U. S. 879 ..................... ........... 18
Holmes v. Connecticut Trust & Safe Deposit Co., 92

Conn. 507, 103 Atl. 640 (1918) ............... ................. 32
Hudson County Water Co. v. McCarter, 209 U. S. 345 36

Klor’s Inc. v. Broadway-Hale Stores, 359 U. S. 207
(1959) .....        33

Kovacs v. Cooper, 336 U. S. 77 ............... ...................  28

Lambert v. California, 355 U. S. 255 ............................. 49
Lane v. Cotton, 1 Ld. Raym. 646, 1 Salk. 18, 12 Mod.

472 ...............................................................................  34
Lanzetta v. New Jersey, 306 U. S. 451 ..................... 49
Levitt & Sons, Inc. v. Division Against Discrimination,

31 N. J. 514, 158 A. 2d 177 (1960) ............................  33
Lorain Journal Co. v. United States, 342 U. S. 143

(1951) .................................................     33
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) 40

PAGE



V

Maddox v. Maddox, Admr., 52 Va. 804 (1954) ........ .....  31
McCord v. State, 79 Ala. 269 ...... ......... ................. ......  50
Mapp v. Ohio, 367 U. S. 643 .......................................  29
Marsh v. Alabama, 326 U. S. 501 ................. ....16, 30, 36, 46
Martin v. Struthers, 319 U. S. 141 ............ ...... ..........28, 45
Massachusetts Comm’n Against Discrimination v.

Colangelo, 30 U. S. L. W. 2608 (Mass. 1962) ............. 33
Miller v. Schoene, 276 U. S. 272 (1928) ........................  35
Monk v. City of Birmingham, 87 F. Supp. 538 (N. D.

Ala. 1949), afFd 185 F. 2d 859, cert. den. 341 IT. S.
940 ................... ...................................................... .....  23

Monroe v. Pape, 365 U. S. 167 ....... ......................... . 26
Morrissette v. U. S., 342 U. S. 246 ...... ............ .........49, 50

PAGE

NAACP v. Alabama, 357 IT. S. 449 .......... .....................  45
N. Y. State Comm’n Against Discrimination v. Pelham 

Hall Apts., Inc., 10 Misc. 2d 334, 170 N. Y. S. 2d 750
(Sup. Ct. 1958).............................................................  33

Nixon v. Condon, 286 IT. S. 73.......................................  39
N. L. R. B. v. American Pearl Button Co., 149 F. 2d

258 (8th Cir. 1945) ....................................... ...... ........ 46
N. L. R. B. v. Babcock & Wilcox Co., 351 U. S. 105

(1955) ............      35
N. L. R. B. v. Fansteel Metal Corp., 306 IT. S. 240......  46
People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 279

(1948) ................................................     47
Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925) 32
Public Utilities Commission v. Poliak, 343 U. S. 451....29, 39

Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) 35

Railway Mail Ass’n v. Corsi, 326 U. S. 88....................... 30
In Re Ranney’s Estate, 161 Misc. 626, 292 N. Y. S. 476 

(Surr. Ct. 1936) 3 2



VI

Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793 
(1945) .................................................................. 30,35,46

Saia v. New York, 334 U. S. 558.....................................  49
St. Louis Poster Advertising Co. v. St. Louis, 249 U. S.

269 (1919) ..................................................................  35
San Diego Bldg. Trades Council v. Garmon, 349 U. S.

236 ...............................................................................  46
Schenck v. United States, 249 U. S. 47..........................  47
Schmidinger v. Chicago, 226 U. S. 578......................... 35
Screws v. United States, 325 U. S. 91..........................  26
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947), cert.

denied 332 U. S. 851.................................................... 47
Semler v. Oregon State Board of Dental Examiners,

294 U. S. 608 (1935)...................    35
Shelley v. Kraemer, 334 U. S. 1 -.16,18, 25, 28, 30, 32, 36, 37 
Shuttlesworth v. Board of Education, 162 F. Supp. 372

(N. D. Ala. 58 aff’d 358 U. S. 101)..........................  24
Shuttleworth v. Gaylord, 202 F. Supp. 59 (N. D. Ala.

1961) ...........................................................................  23
State Athletic Comm’n v. Dorsey, 359 U. S. 533— .... 18
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Rel. Ref. Man. 2357, 2361 (1959)..... ...........  47
Steel v. Louisville and Nashville R. R. Co. 323 U. S.

192 .......................    39
Stromberg v. California, 283 U. S. 359.....................  44

Taylor v. Louisiana, 370 U. S. 154.................................. 26
Terminiello v. Chicago, 337 U. S. 1................................ 47
Terry v. Adams, 345 U. S. 461..............    40
Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917)— 35
Thompson v. City of Louisville, 362 U. S. 199...............  50
Thornhill v. Alabama, 310 U. S. 88................................44, 46

PAGE



Truax v. Corrigan, 257 U. S. 312...................................  40
Turner y. Memphis, 369 U. S. 350..............................16,18

United States v. Addyston Pipe & Steel Co., 85 Fed.
271 (6th Cir. 1898) aff’d 175 U. S. 211 (1899)...... . 33

United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961).... 35
United States v. Colgate, 250 U. S. 300 (1919).....    33
United States v. Hall, 26 Fed. Cas. 79..........     40
U. S. v. Parke, Davis & Co., 362 U. S. 29 (1960)..........  33
United Steelworkers v. N. L. B. B. 342 F. 2d 593 (D. C.

Cir. 1956), reversed on other grounds, 357 U. S. 257.. 46

Watehtower Bible and Tract Soc. v. Metropolitan Life
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948)..........  28

Western Turf Assn. v. Greenberg, 204 U. S. 359..........  30
West Virginia State Board of Education v. Barnette,

319 U. S. 624........................... ...... ...................... ........ 44
Winterland v. Winterland, 389 111. 384, 59 N. E. 2d 661

(1945) ..........................................................................  31
Winters v. New York, 333 U. S. 507..........    49
Wolf v. Colorado, 338 U. S. 25 ....        29

F ederal S tatutes

Civil Bights Act of 1866, 14 Stat. 27..............................  28
Civil Bights Act of 1875....................................... ......... 41
Civil Bights Act of 1875, 18 Stat. 335........... ............ . 28
Clayton Act. 15 U. S. C. §12 et seq................................. 33

Enforcement Act of May 31st, 1870, 16 Stat. 140..........  41
Enforcement Act of April 20, 1871, 17 Stat. 13.............. 41
Miller-Tydings Act Amendment of §1 of the Sherman 

Act, 15 U. S. C. §1 .....................................................  32

V1X

PAGE



vm

Robinson-Patman Act, 15 U. S. C. §13 et seq................. 33
Sherman Anti-Trust Act, 15 U. S. C. §1 et seq................ 33
28 U. S. C. 1257(3)..........................................  2
42 U. S. C. 1981......................     27
42 IT. S. C. 1982.   27
42 U. S. C. 1983...............................................  27

S tate S tatutes

Alabama Constitution, Art. 14, §256 ............................  24
Cal. Civil Code, §51 .....................................................  33
Cal. Civ. Code, sections 51-52 (Supp. 1960) .................  34
Cal. Health & Safety Code §35740 ................................ 33
Code of Alabama, Recompiled 1958, Title 7, §429(1) ..6,23 
Code of Alabama, Recompiled 1958, Title 10, §§1 to

263 ............................................................................... 37
Code of Alabama, Recompiled 1958, Title 14-360 ........  24
Code of Alabama, Recompiled 1958, Title 44-10..........  24
Code of Alabama, Recompiled 1958, Title 45-4 ..........  24
Code of Alabama, Recompiled 1958, Title 45-52 ..........  24
Code of Alabama, Recompiled 1958, Title 45-248 ....... 24
Code of Alabama, Recompiled 1958, Title 48-186 ......  24
Code of Alabama, Recompiled 1958, Title 48-196-198 .. 24 
Code of Alabama, Recompiled 1958, Title 48-301 (31a)

to (31c) ...................................................................... 24
Code of Alabama, Recompiled 1958, Title 51-244 ......  24
Code of Alabama, Recompiled 1958, Title 52-613(1) .... 24
Code of Alabama, Recompiled 1958, Title 121-3..........  24
Colo. Rev. Stat. Ann. sections 25—1—1 (1953) _____  34
Colo. Rev. Stat. Ann. §§69-7-1 to 69-7-7 (Supp. 1960) .. 33
Conn. Gen. Stat. Rev. §53-35 (Supp. 1960) .....................  33
Conn. Gen. Stat. Rev. §53-35 (Supp. 1961) ................  34

PAGE



IX

PAGE

D. C. Code Ann. sections 47-2901 et seq. (Supp. 1960) .. 34
Indiana Ann. Stat. sections 10—901-02 (Supp. 1962) .... 34 
Iowa Code Ann. sections 735.1 (1950) ................... .....  34

Kansas Gen. Stat. Ann. section 21-2424 (1949) ..........  34
Mass. G. L. c. 151B, §§1, 4, 6 (Supp. 1961) .................  33
Mass. G. L. c. 151B, §§1-10 (Supp. 1961), as amended

by Stat., 1961, cc. 128, 570 ........................................... 33
Mass. Gen. L. c. 272, §§92A, 98 (1956) ......................... 34
Mich. Stat. Ann. §28-343 (Supp. 1959) ......................... 34
Minn. Stat. Ann. section 327.09 (1947) ......................... 34
Minn. Stat. Ann. §§363.01-.13, as amended by L. 1961,

c. 428 to become effective 12/31/62............................  33
Montana Rev. Codes Ann. section 64-211 (Supp. 1961) 34
Neb. Rev. Stat. sections 20—101—102 (1943) ............ 34
N. D. Cent. Code, section 12-22-30 (Supp. 1961) ..........  34
N. H. Rev. Stat. Ann. §354:1 (Supp. 1961) .............. 33, 34
N. J. Stat. Ann. §§10 :l-2 to 10 :l-7 (1960) .....................  34
N. J. Stat. Ann. §18:25-4 (Supp. 1961) .......................  33
N. M. Stat. Ann. sections 49—8—1-6 (Supp. 1961) ......  34
N. Y. Civil Rights Law §40 (1948); Executive Law,

§§292(9), 296(2) (Supp. 1962) ................................  34
N. Y. Executive Law, §290 (Supp. 1962) .......... ........... 33
Ohio Rev. Code §4112.02(G) (Supp. 1961) .................  34
Ore. Rev. Stat. sections 30.670-.680, as amended by L.

1961 c. 247 ................... ............................................... 34
Ore. Rev. Stat. §659.033 (1959) ...................................  33
Pa. Stat. Ann. Tit. 18, section 4654, as amended by 

Act No. 19 of the 1961 Session of Pa. Gen. Assembly 34 
Pa. Stat. Ann. Titl. 43, §§951-63, as amended by Acts 

1961, No. 19 .............................. ....................... *.........  33

R. I. Gen. Laws Ann. sections 11—24—1-6 (1956) ......  34



X

Vermont Stat. Ann. Tit. 13, sections 1451-52 (1958) .... 34
Wash. Rev. Code §49.60.030 (1957) ................... 33
Wash. Rev. Code, section 49.60.040 (1957) ................  33
Wash. Rev. Code, section 49.60.040 (1962) ................  34
Wash. Rev. Code, section 49.60.215 (1962) .......   34
Wis. Stat. Ann. section 942.04 (1958), as amended

(Supp. 1962) ............................................................... 34
Wyo. Stat. §§6-83.1, 6-83.2 (Snpp. 1961) ....................... 34

City Ordinances

City Code of Birmingham, Alabama, Section 369
(1944) .................................................  2,18,23

City Code of Birmingham, Alabama, Section 1436
(1944) .....     2,4,25

City Code of Birmingham, Alabama, Section 5288 
(1930) ........     3

General City Code Birmingham (1944), Ch. 14 ............  37
General City Code Birmingham (1944) §§348 and 

376(a) .................................................................    37

PAGE

Other A uthorities

Abernathy, Expansion of the State Action Concept 
Under the Fourteenth Amendment, 43 Cornell L. Q.
375 .................. ............................................................  43

Adler, Business Jurisprudence, 28 Harv. L. Rev. 135
(1914)  ............................... .......................... ............. . 34

A. L. I., Restatement of Property, §424 (1944) ..........  31
A. L. I., Restatement of the Law of Property, Div. 4, 

Social Restrictions Imposed Upon The Creation Of
Property Interests (1944), p. 2121 ................. ........ 32

A. L. I., Restatement of Torts, §867 (1939) .................. 29



X I

Beale, The Law of Innkeepers and Hotels (1906) .... 34 
4 Blackstone’s Commentaries, Ch. 13, Sec. 5(6) Wen­

dell’s Ed. 1850 ...... .......................................... ........ 29
Blodgett, Comparative Economic Systems, 24 (1944) 31
Browder, Illegal Conditions and Limitations: Miscel­

laneous Provisions, 1 Okla. L. Rev. 237 (1948) ..........  32
Cong. Globe, 41st Cong. 2d Sess., p. 3611 (1870) ......  40
Cong. Globe, 42d Congress, 1st Sess., p. 459 ..........  42
Cong. Globe, 42nd Congress, 1st Sess., p. 483 (1871).... 41
Cong. Globe, 42d Cong., 2d Sess., 382-383 (1872)........  29
Appendix to the Cong. Globe, 42d Congress, 1st Sess.,

p. 85 ............................       42
Cong. Ree., p. 412, 43d Cong., 1st Sess. (1874).............. 41

E nglish S tatute

Statute of Labourers, 25 Ed. Ill, Stat. I, (1350) ..........  34

Otheb A uthorities

Gray, Restraints on the Alienation of Property, 2d ed.
1895, §259 ....................................................................  32

Gray, The Rule Against Perpetuities, §201, 4th ed.,
1942 .............................................................................  32

Hale, Force and the State: A Comparison of “Politi­
cal” and “Economic” Compulsion, 35 Colum. L. Rev.
149 (1935) ........       43

Konvitz & Leskes, A Century of Civil Rights, 150 
(1961) .....     30,43

Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638 
(1938)

PAGE

3 2



Mund, “The Eight to Buy—And Its Denial to Small 
Business,” Senate Document #32, 85th Cong. 1st 
Sess., Select Committee on Small Business (1957) .... 34

Poliak, Racial Discrimination and Judicial Integrity:
A Reply to Professor Wechsler, 108 U. Pa. L. Rev.
1 (1959) ........................... ............................. ..............  43

Powell, Real Property, UH759-827...................... .............  32
6 Powell, Real Property U851, Restatement of Property 31 
6 Powell, Real Property H858 at 64................................ 32
Rankin, The Parke, Davis, Case, 1961 Antitrust Law 

Symposium, New York State Bar Association Sec­
tion on Antitrust Law 63 (1961)..............................  33

Sayre, Public Welfare Offenses, 33 Columbia L. Rev. 55
(1933) .......................................................................... 49

Southern School News, August 1960, Vol. 9, No. 2, p. 1.... 24

X U

PAGE



I n  th e

8 > t x p x m u x  Gkmrt of %  In it^
October Term, 1962 

No. 66

J ames Gober, J ames A lbert D avis, R oy H utchinson, 
R obert J. K ing, R obert P arker, W illiam W est, R obert 
D. Sanders, R oosevelt W estmoreland, J essie W alker, 
W illie J. W illis,

Petitioners,

City of B irmingham.

ON W R IT  O F CER TIO R A R I TO T H E  CO U RT O F A PPEA L S OF ALABAMA

BRIEF FO R  PETITIO N ERS

Opinions Relow

The opinions of the Court of Appeals of Alabama are 
reported at 133 So. 2d 697 (Gober, R. 58); 133 So. 2d 703 
(Davis, R. 88); 133 So. 2d 703 (Hutchinson, R. 124); 133 
So. 2d 704 (King, R. 144); 133 So. 2d 705 (Parker, R. 118); 
133 So. 2d 705 (Sanders, R. 220); 133 So. 2d 706 (Walker, 
R. 262); 133 So. 2d 707 (West, R. 194); 133 So. 2d 707 
(Westmoreland, R. 236); 133 So. 2d 708 (Willis, R. 278).

Jurisdiction

The judgments of the Alabama Court of Appeals were 
entered on May 30, 1961 (Gober 64, Davis 88, Hutchinson 
124, King 144, Parker 178, West 194, Sanders 220, West­



2

moreland 236, Walker 262, Willis 278). Petitions to the 
Supreme Court of Alabama for Writs of Certiorari were 
denied on September 14, 1961 (Gober 69, Davis 92, Hutchin­
son 128, King 144, Parker 182, West 194, Sanders 224, 
Westmoreland 236, Walker 266, Willis 278).

Applications to the Supreme Court of Alabama for re­
hearing were overruled on November 2, 1961 (Gober 71, 
Davis 92, Hutchinson 128, King 144, Parker 182, West 194, 
Sanders 224, Westmoreland 236, Walker 266, Willis 278).

The jurisdiction of this Court is invoked pursuant to 
United States Code Title 28, Section 1257 (3), petitioners 
having asserted below, and asserting here, the deprivation 
of their rights, privileges, and immunities secured by the 
Constitution of the United States.

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves the following sections of the 
City Code of Birmingham, Alabama:

‘ Section 1436 (1944), After 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



3

of seven feet or higher, and unless a separate entrance 
from the street is provided for each compartment” 
(1930, Section 5288).

Q uestions P resen ted

Petitioners have been arrested, convicted, and sentenced 
to prison for refusal to obey the request to leave a lunch 
counter in a department store open to the public, including 
Negroes. This request was predicated on a city ordinance 
requiring racial segregation in eating facilities buttressed 
by a massive state policy of segregation. The premises 
are extensively licensed and regulated by the City and 
State. And, Alabama has failed to accord Negroes the 
right of equal access to public accommodations.

I.
A. May these state court convictions stand consistently 

with the Fourteenth Amendment in view of the fact that 
the segregation which gave rise to them was based upon 
a city ordinance requiring racial segregation in eating 
facilities buttressed by a massive state policy of racial 
segi'egation?

B. May these convictions stand consistent with the equal 
protection clause of the Fourteenth Amendment as en­
forcement of the private determination of department 
stores to exclude Negroes from certain eating facilities?

C. In addition to the foregoing considerations, is not the 
property right which Alabama sought to protect here— 
the right to discriminate racially in a single portion of a 
store open to the general public—so inconsequential to the 
main core of the store’s proprietary interests that the state 
may not, compatibly with the Fourteenth Amendment, en­
force that right by its criminal laws?



4

D. Is not the degree of supervision and control which the 
City and the State exercise over the department store lunch 
counters here, given the circumstances set forth above, so 
extensive a form of state involvement that the State has 
an obligation to afford equal protection?

E. In view of the fact that Alabama denies protection to 
Negroes against racial discrimination in public accom­
modations, do not the circumstances set forth above estab­
lish a denial of equal protection of the laws?

II.

A. Has Alabama denied petitioners freedom of speech 
secured by the Fourteenth Amendment by using its crim­
inal trespass laws as a device to stop petitioners from per­
suading the department stores in Birmingham to abandon 
their policies of discrimination at the lunch counters?

B. Is not freedom of speech impaired by failure to con­
strue the statute under which conviction was obtained to 
require notice that the request to leave the premises was 
given by one who had established authority to issue such 
request at the time given?

S tatem ent o f th e  Case

Petitioners, ten Negro students, were all tried seriatim 
in groups of two and simultaneously convicted on October 
10, 1960 following sit-in demonstrations at department 
store lunch counters serving white customers only in Bir­
mingham, Alabama (R. 9, 81, 100, 136, 152, 187, 202, 229, 
244, 271). Each petitioner was charged with having vio­
lated §1436, General City Code of Birmingham, 1944, which 
provides as follows:

“Any person who enters into the dwelling house, or goes 
or remains on the premises of another, after being



5

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” (E. 2, 73, 93,129,145,183,195, 225, 237, 267).

Originally tried and convicted in Birmingham’s Be- 
corder’s Court, petitioners’ appeals and trials de novo in 
the Circuit Court, Tenth Judicial Circuit of Alabama, ended 
in new convictions and fines of $100 each and 30 days in jail. 
Simultaneous appeals were taken to the Court of Appeals 
of Alabama where the convictions were affirmed (E. 57, 88, 
124, 144, 178, 194, 220, 236, 262, 278) followed by denials of 
petitions for writs of certiorari in the Supreme Court of 
Alabama (E. 65, 92, 128, 144, 182, 194, 224, 236, 266, 278). 
A single petition for writ of certiorari was filed in this 
Court and granted on June 25, 1962 (E. 279). (Stipulations 
as to printing of record E. 279.)

Petitioners claimed that their convictions deprived them 
of due process and equal protection guaranteed by the 
Fourteenth Amendment to the Federal Constitution. These 
constitutional claims were first raised by motions to strike 
the complaint (E. 3, 74, 94, 130, 146,184, 196, 226, 238, 268); 
demurrers (E. 4, 75, 95, 131, 147, 185, 197, 227, 239, 269); 
motions to exclude the testimony (E. 6, 77, 97, 133, 148, 187, 
199, 229, 241, 271); motions for new trial (E. 12, 83, 103, 
139, 154, 189, 205, 231, 247, 273); assignment of errors (E. 
56, 87, 123, 142, 177, 192, 219, 234, 276) and in the petitions 
for writs of certiorari in the Supreme Court of Alabama 
(E. 66, 89,125,144,179,194, 221, 236, 263, 278).

On appeal to the Court of Appeals a decision was ren­
dered in the first case, Gober, on the basis of which all other 
convictions were affirmed (E. 58-64, 88, 124, 144, 178, 194, 
220, 236, 262, 278). That court upheld the overruling of 
G-ober’s motion to strike the complaint on the ground that it



6

was not a proper method of testing the sufficiency of the 
complaint (E. 59-60) and the overruling of grounds 1, 2, 3 
and 4 of the demurrer on the ground that these were too 
general in nature and did not point out any specific defect 
in the complaint (E. 60).

All of the constitutional grounds urged in the demurrer 
were rejected on the ground that “no constitutional applica­
tion of the ordinance . . . appears from any of the pleadings. 
Such unconstitutional application would be a matter of evi­
dence. These grounds, setting up a speaking demurrer, 
necessitated an overruling of the demurrer in this aspect” 
(E. 61). The trial court’s denials of the motion to exclude 
the evidence and for a new trial were also affirmed (E. 61). 
Gober’s free speech and equal protection claims were held 
“entirely inapplicable” (E. 61).

Although petitioners’ counsel on the trial brought out 
the existence of an ordinance requiring segregation in 
restaurants in Birmingham (E. 24-26), the court ruled that 
there was no question raised in the record, by the pleadings, 
of any ordinances requiring segregation in restaurants (B. 
63). However, ordinances of the City of Birmingham are 
judicially noticeable in Alabama (7 Code of Alabama, §429 
(1)). The court then concluded that since the department 
store involved was a private enterprise, petitioner entered 
as a licensee whose license was destroyed when petitioner 
was requested to leave the restaurant by an official and re­
fused, making him a trespasser (E. 63-64). The court also 
ruled that since the store owned the premises which peti­
tioner refused to leave, the store had “a full right to limit 
the use of its own premises as it saw fit” (E. 63), a right 
which the Alabama Court of Appeals regarded as inviolate 
saying: “The right to operate a restaurant on its own 
premises under such conditions as it saw fit to impose was



7

an inalienable property right possessed by the Pizitz store” 
(R. 63).

All of the petitioners were arrested on March 31, 1960. 
The facts developed on each of the five trials follows:

G ober and  Davis

Petitioners Gober and Davis were arrested in Pizitz’s 
Department Store by a police officer who had gone there in 
response to a report of a “disturbance” or “commotion” (R.
18) . On direct examination by the City’s attorney the officer 
was asked:

“Q. When you got to the dining or eating area what 
did you find that was unusual or out of the ordinary? 
A. Well, I found that the cafeteria part was closed to 
all customers and I found two Negro males sitting in 
the eating part of the cafeteria” (R. 18).

When asked what they were doing the officer responded, 
“They were sitting there just talking to one another” (R.
19) . No one said anything to either petitioner in the pres­
ence of the arresting officer (R. 19); and the officer did not 
speak to any personnel connected with the store in the 
presence of petitioners (R. 19). The report pursuant to 
which the officer acted came from his superior (R. 19-20). 
No member of the store requested the officer to arrest peti­
tioners (R. 20).

In addition to the arresting officer, the controller of the 
store testified that he did not make any remark to peti­
tioners (R. 21, 23) although an assistant to the president 
asked petitioners to leave the tea room area (R. 23). The 
president’s assistant told petitioners they could be served 
in the Negro restaurant in the basement (R. 23). “He (the 
assistant to the president) told them it would be against 
the law to serve them there” (R. 24). At this point peti­



8

tioners’ counsel developed the fact that there is an ordinance 
of the City of Birmingham requiring racial segregation in 
eating facilities (R. 24-25). The controller was then asked: 
“Q. Did you or any official at Pizitz’s call the police? A. 
No sir” (R. 26). Once again he was asked: “Q. So far as 
you know, no official at Pizitz’s had filed a complaint with 
the Police Department at that time? A. That is right” (R.
27) .

Petitioner Davis, a student at Daniel Payne College (R.
28) , testified that on the day in question he made purchases 
at Pizitz’s and then attempted to obtain service in the lunch 
area (R. 43-44). The waitresses never came (R. 44). Davis 
and his companion, Gober (R. 50), were told by some un­
identified person that they could be served in a place re­
served for Negroes (R. 44-45). The lunch area was located 
on the mezzanine (R. 44). No sign indicated a racial re­
striction as to service (R. 44). Petitioners were not asked 
to leave the store or the place where they were sitting (R. 
44). On cross-examination, it was established that petitioner 
Davis had gone to Reverend Shuttlesworth’s house to be ad­
vised on March 30, 1960. Petitioner G-ober was also there, 
as well as petitioners Hutchinson, King, Parker, Sanders, 
Walker, West, Westmoreland and Willis (R. 46-48).

Q. You went there voluntarily? A. That is right.
Q. Nobody solicited you to come there? A. That 

is right.
Q. Nobody came to Daniel Payne College and asked 

for volunteers to go to the meeting? A. That is right.
Q. How did you know about the meeting? A. We 

went there for advice. We went to his home.
Q. Who did you go there with? A. Reverend Bil­

lups was on the campus and I asked him to take us over 
there if he was going to town and he did so (R. 47).



9

H u tc h in so n  a n d  K in g

Petitioners Hutchinson and King were arrested when they 
were sitting alone at a table in the dining area of Loveman’s 
Department Store (R. 107-108). The arresting officer, Mar­
tin, was directed to go to Loveman’s by another officer, Holt 
(R. 107). When Officer Martin arrived, he saw a rope from 
one post to another going up to the mezzanine or eating 
place with a sign marked closed (R. 107). There were no 
signs limiting the use of the facility to whites or Negroes 
(R. 108). There was no conversation with petitioners other 
than to tell them they were under arrest (R. 107). There 
was no disorder (R. 109) and no person connected with the 
store personally informed Martin that petitioners had been 
directed to leave (R. 108).

The concessionaire in charge of the food department who 
observed petitioners in the dining area on the day of their 
arrest had had no conversation with them (E. 109-110) but 
heard Mr. Kidd of the store’s Protection Department tell 
petitioners to leave in the following manner: “He an­
nounced in general terms that the tea room was closed and 
for everyone to leave” (E. 110). According to this witness, 
petitioners remained seated along with other persons, who 
were white, until the police arrived. Lt. Pierce approached 
and asked him if he was the manager and said someone had 
called the police and had told them that there were “two 
people” in Loveman’s “trying to be served,” and he asked, 
“Where are they!” Mr. Schmid, the concessionaire, was 
asked whether there was any disturbance. His reply was, 
“It naturally is you know in this case” (R. 112). However, 
he did not call the police and he didn’t know who called 
(R. 112). The waiters left the floor when petitioners seated 
themselves (R. 112). And when the officer came, the con­
cessionaire left the floor (R. 113). About 25 white customers 
were still eating when the police arrived (R. 113). The store



1 0

detective, D. V. Kidd, announced to the whites seated on the 
mezzanine in the presence of petitioners that the store was 
being closed but did not speak directly to petitioners (R. 
115). The officer did not arrest petitioners in his presence 
(R. 115). Mr. Kidd testified that in closing the food service 
the store manager hung up a sign saying closed (R. 117), 
but he (Kidd) did not see petitioners until the crowd dis­
persed, the milling crowd being the cause for closing (R. 
117). He, too, admitted that no one connected with Love- 
man’s Department Store called police (R. 118). He did not 
tell the officer anything other than the fact that people were 
milling around and he “found the two colored boys sitting 
there and we had closed the tea area” (R. 118).

The detective testified that there was a place on the 7th 
floor where Negroes may be served (R. 119); however, the 
policy of Loveman’s regarding service of Negroes at the 
lunch tables was not known to this witness. He testified, 
“ . . . the policy of the store I do not know, I have never 
been informed in regard to that although on all of the oc­
casions I visited the mezzanine I have never seen any 
colored eating on the mezzanine” (R. 121). The detective 
did not sign a complaint or affidavit for the arrest of these 
petitioners (R. 121-122).

On the other hand, the concessionaire testified that Love- 
man’s has no separate accommodations for Negroes (R.
113) . The two eating facilities, one in the basement and 
one in the mezzanine, are for white customers only (R. 113-
114) . Negroes are permitted to trade in the store which 
sells household goods, furnishings, notions, etc. (R. 114).

P a rker  and  W est

Petitioners Parker and West were arrested in Newberry’s 
Department Store. Officer B. R. Myers arrived about 10:30 
A. M. and saw “two colored males” seated at the lunch 
counter. He had no conversation with them or any store



1 1

official (R. 158-159). Petitioners had no conversation with 
any employees of Newberry’s in the presence of the officer 
(R. 159). The officer arrested petitioners on the strength of 
a call which had been received from police headquarters to 
go to Newberry’s (R. 159). The arresting officer understood 
that the complaint regarding petitioners’ presence in New­
berry’s had been received by officer Stoddard from a man 
named Stallings of the department store (R. 160-161).

The store detective in Newberry’s, Mrs. L. R. Gibbs, tes­
tified that she told petitioners West and Parker to leave 
(R. 162) and to go to the snack bar for colored on the 4th 
floor, but, “They said they were not leaving, that they were 
not violating any law” (R. 163). Newberry’s has three lunch 
counters, one on the first floor and one in the basement for 
white customers only and one on the fourth floor for Ne­
groes (R. 163). Lloyd L. Stallings, Assistant Store Man­
ager, testified that he was called from his office by “some­
one” who said “there was a lot of confusion at the lunch 
counter” and would he come down. When he got down to 
the main floor he saw two colored men seated there (R. 
164). He addressed petitioners as follows: “You know you 
can’t do this . . . we have a lunch counter up on the fourth 
floor for colored people only. We would appreciate it if 
you would go up there” (R. 164). In reply defendants said, 
“We have our rights.” Mr. Stallings testified, however, 
that he did not call the police and doesn’t know who did 
(R. 165). Even after the police arrived he made no com­
plaint to them or subsequently and to his knowledge no one 
else connected with the store did either (R. 165).

Newberry’s is a national chain store engaged in selling 
goods to tire public (R. 165). Although the fourth floor lunch 
counter has a sign saying for colored only, the one on the 
first floor has no sign limiting service on racial grounds (R. 
166). Negroes and whites, of course, shop at other depart-



1 2

merits on the first floor where this lunch counter is located 
(B. 166). When petitioners’ counsel tried to develop the 
fact that Newberry’s policy concerning Negroes is depen­
dent upon the custom of the community, this testimony was 
ruled incompetent by the court and exception taken (B. 167- 
168).

Petitioner West testified that he met petitioner Parker on 
the date in question, made a couple of purchases and then 
invited Parker to go with him and have something to eat. 
They went to the lunch counter on the first floor. Other 
white persons were seated at the counter (B. 171). The 
waitress never came over to take their order and no one 
invited them to leave (B. 171). The arresting officer or­
dered the white people dining at the counter to get up. All 
of them did not leave (B. 172). Petitioner West then got 
up to leave and the arresting officer grabbed him from be­
hind. He told petitioners they were under arrest but did 
not say what for (B. 172-173). This petitioner testified that 
he had expected to get service because he had been served 
at other counters without difficulty (B. 173).

S a n d ers  and  W estm o re la n d

Petitioners Sanders and Westmoreland were arrested as 
they sat alone in the basement lunchroom of Kress’s 5 
& 10  ̂ store (B. 208-209). Officer Caldwell arrived pur­
suant to a call from police headquarters (B. 208-209). 
The officer testified that the manager told him in the 
presence of petitioners that petitioners could not be served 
where they were seated and then turned out the lights and 
closed the counter (B. 209). Thereupon this officer arrested 
petitioners although the manager did not request the arrest 
or tell petitioners to leave the counter (B. 209-210). The 
lunch counter manager testified that he approached peti­
tioners and told them they could not be served there and put 
up a closed sign. Petitioners were sitting at a counter in



1 3

one bay or section thereof when the manager turned off 
the lights. Petitioners then moved to another bay and the 
lights were turned off there (R. 211-212). One youth said, 
“We have our rights.” The lunch counter manager then 
called the manager of the store. The store manager asked 
petitioners to leave but petitioners did not answer (R. 212). 
The police arrived as both managers turned away from the 
petitioners. It was intended only that petitioners leave the 
area, not the store (R. 213). Everyone left the counter when 
it was closed except an elderly woman who finished her 
sandwich. She remained after police arrived but was not 
arrested (R. 217). The lunch counter manager did not 
himself call the police, did not ask them to arrest petitioners, 
and did not sign an affidavit (R. 213).

Kress is also a department store selling to the general 
public (R. 214). No facilities are provided for colored 
customers (R. 215). Lunch counters at Kress are for cus­
tomers who come into the store (R. 215). Negroes are 
served food at the lunch counters to carry out (R. 218), 
and buy equally and without discrimination at all other 
counters (R. 216).

W a lk e r  a n d  W illis

Petitioners Walker and Willis were arrested in Wool- 
worth’s. The lunch counter there was on the first floor. The 
arresting officer, Richard Casey, testified that when he ar­
rived the lights were turned out over the counter and Mrs. 
Evans, the manager was waiting for him (R. 251); that 
petitioners were seated at the counter. He had no conversa­
tion with them (R. 252) although Mrs. Evans told him that 
she had asked petitioners to leave, that the place was 
closed; that she then told petitioners the counter was 
closed, that they would have to leave (R. 252-253); and that 
there was no one else seated at the lunch counter at that



1 4

point (R. 253). The officer admitted that Mrs. Evans did 
not instruct him to arrest petitioners and no one else con­
nected with the store did either (B. 253).

Petitioner Walker testified, on the other hand, that on 
the date in question he went to Woolworth’s to purchase 
handkerchiefs and a birthday gift for a friend. He met 
petitioner Willis there who also made purchases (R. 255). 
They then went to the lunch counter but did not get a chance 
to order anything. They were refused service by the first 
waitress and just sat there until the police arrived (R. 256). 
He never saw the store manager, Mrs. Evans, until his trial 
in the Recorder’s Court (R. 256). He was never asked to 
leave by anyone connected with the store. When the police 
arrived they requested the white customers seated at the 
counter to leave. A white man sitting next to petitioners 
refused to move, but the police required him to do so, al­
though he was not arrested (R. 256). Petitioner Walker 
also testified that he saw officer Casey for the first time when 
he was taken outside of the store to the patrol car and that 
Casey was not the officer who had taken them out of the 
stoie. The counter contained no sign limiting service to 
“white or colored” (R. 257).

Facts C o m m o n  to  E ach  Case

The following significant facts appear in each of these 
cases:

1. The protest demonstration in each case took place 
in a department store where petitioners and all other mem­
bers of the public were invited to trade, and did, at all 
counters except the lunch counter in question (Gober and 
Davis, R. 43-44, 50; Hutchinson and Davis 114, 119-120; 
Parker and West 165-166, 169, 170 ; Sanders and West­
moreland 214-216, 218; Walker and Willis 255-256, 257-258).



1 5

2. All of these petitioners sought to purchase food in 
an area of the premises where any member of the white 
public could make this purchase and where there was no 
sign limiting this purchase to white customers (Gober and 
Davis, R. 44, 50; Hutchinson and King 108, 113; Parker 
and West 163, 166, 171; Sanders and Westmoreland 216, 
218; Walker and Willis 257).

3. In each case it appears that the police arrived at the 
store, not pursuant to any call made by someone connected 
with the store, but pursuant to orders from police head­
quarters or a superior officer, arrested petitioners without 
being requested to make the arrest by any agent of the 
store, and petitioners were prosecuted by the City although 
no one connected with the store signed a complaint or 
affidavit upon which the prosecution was based (Gober and 
Davis, R. 19-20, 26-27; Hutchinson and King 107, 112, 113, 
115, 118, 121-122; Parker and West 159-161, 165; Sanders 
and Westmoreland 210, 213; Walker and Willis 252-253, 
254).

4. In no case is there evidence that the person requesting 
petitioners to leave the lunch area identified himself, or 
stated his authority to make the request, or requested peti­
tioners to leave the store as opposed to the lunch area 
(Gober and Davis, R. 21, 23, 44-45; Hutchinson and King 
110, 115-116; Parker and West 162, 171; Sanders and 
Westmoreland 209-210, 211, 213; Walker and Willis 252- 
253, 256).

5. In each case the charge was the same, i.e., petitioners 
“did go or remain on the premises of another, said premises 
being the area used for eating, drinking and dining pur­
poses . . . after being warned not to do so” (Gober, R. 2, 
Davis 73, Hutchinson 93, King 129, Parker 145, West 183, 
Sanders 195, Westmoreland 225, Walker 239, Willis 267).



1 6

6. Petitioners were at all times orderly (Gober and 
Davis, R. 19-20; Hutchinson and King 109, 117-118; Parker 
and West 158; Sanders and Westmoreland 209).

Sum m ary  o f A rgum ent

I.
Petitioners’ convictions cannot stand consistently with 

the equal protection and due process imperatives of the 
Fourteenth Amendment. These convictions were, in reality, 
predicated on a city ordinance requiring racial segregation 
in eating facilities, buttressed by a massive state policy 
of racial segregation, the enforcement of which, as demon­
strated by the records in these cases, clearly violates the 
equal protection clause of the Fourteenth Amendment. 
Turner v. City of Memphis, 369 U. S. 350. If the depart­
ment stores’ policy were the sole basis for these convictions, 
these convictions would nevertheless violate the equal pro­
tection clause of the Fourteenth Amendment since enforce­
ment of such private discrimination was dependent upon 
the state’s exertion of the full power of its judicial arm. 
Shelley v. Kraemer, 334 U. S. 1. There is no asserted 
invasion of the right of privacy in these cases. The prem­
ises in question were thrown open to the general public, 
including petitioners. Marsh v. Alabama, 326 U. S. 501. 
The premises are a part of the public life of the community, 
extensively regulated and licensed by the state, making 
state enforcement of racial segregation therein peculiarly 
repugnant to the requirements of equal protection. Burton 
v. Wilmington Parking Authority, 365 U. S. 714. The prop­
erty right asserted, which is a right to control the associa­
tions of customers at a public department store lunch 
counter, when all other counters are free from such control, 
is patently inconsequential when weighed against the high



1 7

purposes of the Fourteenth Amendment. The state cannot 
claim the right to enforce racial segregation in a public 
department store where the segregation has been generated 
by state policy and the state has failed to protect its citizens, 
for whose benefit the Fourteenth Amendment was adopted, 
with respect to equal access to public accommodations. The 
decision in the Civil Rights Cases, 109 U. S. 3, was predi­
cated on the assumption that the states had provided such 
protection.

II.

The due process guarantees of the Fourteenth Amend­
ment require reversal of these convictions as infringements 
upon freedom of speech. Petitioners here sought peace­
fully to persuade the owners of department stores to serve 
them on the same terms and conditions applicable to white 
customers. Their efforts at persuasion took the form of a 
non-verbal demonstration called a “sit-in”. The protest was 
entirely appropriate to the circumstances, including the use 
to which the property had been dedicated by the owners. 
The owners chose to endure the controversy, rather than 
call the police, demand arrest, or file a formal complaint, 
by letting the petitioners remain seated at the lunch counter 
or by closing it to all customers. Their expression was 
not in such circumstances or of such a nature as to pose 
a clear and present danger of any substantive evil which 
Alabama had a right to proscribe. The ordinance, for vio­
lation of which petitioners were actually convicted, is un­
reasonably vague and, therefore, offends the due process 
clause of the Fourteenth Amendment. The ordinance was 
construed by the Alabama courts to uphold convictions ob­
tained without proof that petitioners were requested to 
leave by a person who had established his or her authority 
to issue the request when same was made. Due process re­
quires more notice that the law will exact a penalty under 
the circumstances of this case.



1 8

A R G U M E N T

I.
A labam a’s Judgm ents  in  T hese Cases A re Inconsisten t 

W ith  th e  C onstitu tional M andate o f E qual P ro tec tion .

A. P e titio n e rs ’ C onvictions W ere  D ecreed  b y  B irm in g h a m ’s 
R e s ta u ra n t S eg reg a tio n  O rd in an ce .

The constitutional command—“No state shall . . . deny 
to any person within its jurisdiction the equal protection of 
the laws”—is an injunction against state decreed exclusion 
of Negroes from eating facilities. Turner v. City of 
Memphis, 369 U. S. 350; Burton v. Wilmington Parking 
Authority, 365 U. S. 715; Boynton v. Virginia, 364 U. S. 454. 
However, notwithstanding these recent decisions by this 
Court, and the frequency with which this Court has invoked 
this prohibition against various other manifestations of 
state enforced racial segregation, Bailey v. Patterson, 369 
IT. S. 31; State Athletic Commission v. Dorsey, 359 U. S. 
533; Aaron v. Cooper, 358 U. S. 1; Holmes v. City of 
Atlanta, 350 U. S. 879; Brown v. Board of Education of 
Topeka, 347 U. S. 483; Barrows v. Jackson, 346 IT. S. 249; 
Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala, 1949) aff’d 
336 IT. S. 933; Shelley v. Kraemer, 334 IT. S. 1; Buchanan 
v. Warley, 245 IT. 8. 60, petitioners have been convicted 
by the courts of Alabama. Their crime: as Negroes they sat 
at a white department store lunch counter requesting 
service. If petitioners had been white, and their conduct 
identical, they would not have suffered the same fate.

Alabama’s racial policies are a matter of common and 
historical knowledge still clearly defined by statute and 
ordinance. In this case, §369, General Code of Birming­
ham, 1944, makes it “unlawful to conduct a restaurant or



1 9

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 sep­
arated 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.”

In apparent compliance with this ordinance, Pizitz’s De­
partment Store provides a food service for its white cus­
tomers on the mezzanine (E. 44) and a separate food 
service for its Negro customers in the basement (E. 24). 
The food concessionaire at Loveman’s Department Store 
testified that there are two food areas in Loveman’s, one 
on the mezzanine and one in the basement, both for white 
customers only (E. 114). On the other hand, the store de­
tective testified that on the seventh floor there was a place 
where Negroes “may” be served food (E. 119). Newberry’s 
has two lunch counters for its white customers, one on 
the first floor, the other in the basement (E. 163). Colored 
customers are served on the fourth floor (E. 163). Kress’s 
5 and 10$ Store has a luncheon area in the basement for 
its white customers. Negroes are permitted to purchase 
food at this counter to take out; they are not permitted to 
sit down and eat (E. 218). Woolworth’s has a lunch counter 
on the first floor for white persons only (E. 251, 256).

Consequently, as each arresting officer entered the de­
partment store and saw “two Negro males” seated at a 
lunch counter customarily serving whites only, this, without 
further explanation, was cause for arrest.

The City’s attorney said to the arresting officer in the 
first case:

“Q. When you got to the dining or eating area what 
did you find that was unusual or out of the ordinary? 
A. Well, I found that the cafeteria part was closed



20

to all customers and I found two Negro males seated 
in the eating part of the cafeteria” (R. 18).

In the second case, the police officer who made the arrest 
simply observed as he entered the store that, “two Negro 
boys” were sitting “to the right of the Cashier’s cage at 
the tables there where food is served” (R. 107) with whom 
he had no conversation “other than to tell them they were 
under arrest” (R. 107).

Again, in the third case, the arresting officer was asked:
“Q. Did you find anything out of the ordinary there 

at that time?” [when he entered the store] A. Two 
colored males were sitting at the luncheon counter” 
(R. 158).

Similarly, in the fourth case, the officer was queried as 
follows:

“Q. What did you observe if anything unusual on 
that occasion ? A. Officer Thompson and I went down­
stairs in the basement. The lunch counter was closed. 
The lights were out. We observed two black males, 
Roosevelt Westmoreland and Robert D. Sanders, sit­
ting there” (R. 209).

And finally, in the last case, the officer was asked:
“Q. Did you observe anything usual or out of the 

ordinary on that occasion? A. The lights were out 
over the luncheon counter and there were two Negro 
males seated at the counter. Mrs. Evans was waiting 
there for the officer” (R. 251).

The records in these cases clearly demonstrate that the 
racial policy being enforced here was that of the City and 
not that of the owners of the premises.



2 1

The records disclose first that in each instance the police 
arrived pursuant to their own volition and not pursuant to 
any call from the owner of the premises or one of his agents 
(R. 26,112,165, 212-213, 252).

Second, the evidence is uncontradicted that in no case 
was the officer requested by an employee of the store to 
arrest petitioners (R. 26, 121, 165, 213, 253).

Moreover, the prosecutions of petitioners were not predi­
cated on any formal complaint or affidavit filed by any 
person connected with the stores (R. 26, 121-122, 165, 213- 
214, 253).

In the first case, involving Pizitz’s Department Store, 
the assistant to the president in requesting petitioners to 
leave the tea room “told them it would be against the law 
to serve them there” (R. 24). Petitioners’ counsel then ad­
vised the trial court:

“It is our theory of this case it is one based simply 
on the City’s segregation ordinance and Mr. Gottlinger, 
Mr. Pizitz, the police officers and everybody involved 
acted simply because of the segregation law and not 
because of Pizitz’s policy” (R. 24).

The court did not permit the development of this theory 
(R. 24-26).

A similar effort by petitioners’ counsel in another case 
to develop the fact that the exclusion from the dining area 
was not required by the policy of the store, as distinct from 
the policy of the city, also was restrained by the court. 
Petitioners’ counsel queried:

“Q. Does Newberry’s have a policy of serving and 
not serving persons of another race or particular 
color!” (R. 166).



2 2

This question was objected to as incompetent, irrelevant 
and immaterial (R. 167). In sustaining the objection the 
court said:

“Can we adjudicate cases here on persons or corpo­
rations’ policies?” (R. 167) “ * * * We can’t. I 
pointed that out this morning. We are not dealing with 
policies of stores. We are dealing with a city code” 
(R. 167).

In the case involving Loveman’s department store, the 
store detective who had notified the people to leave the 
dining area when he noticed people were milling around 
(R. 114-115) and after doing so noticed the petitioners in 
that case, Hutchinson and King, sitting at the table (R. 
117), was specifically questioned regarding Loveman’s 
policy of serving Negroes:

“Q. Do you know have they been told not to come 
and eat in the tea room at Loveman’s?”

*  *  *  #  #

“A. Well in my short time I have been there I have 
never, the policy of the store I do not know, I have 
never been informed in regard to that although on 
all of the occasions I visited the mezzanine I have 
never seen any colored eating on the mezzanine” 
(R. 121).

Perhaps the most significant fact developed by petition­
ers’ counsel relating to the question whether a City seg­
regation ordinance was being adhered to by the owners 
of the premises was the fact that in each of the department 
stores petitioners were accommodated at all counters ex­
cept the food service counters (R. 43-44, 50; 114-119-120; 
165-166, 169-170; 214-216, 218; 255-256, 257-258).



2 3

The testimony in these cases leaves no doubt that the 
owners of the premises did not demand arrest and prose­
cution of petitioners. Their method of resolving the con­
troversy was simply to close the counters or let petitioners 
just sit there (E. 18, 107, 164, 209, 251). They obviously 
did not desire to incur the risk of losing their Negro trade 
since in each case they requested only that these Negro 
customers leave that particular counter or area, not the 
store (E. 45, 115-116, 162, 213, 253).

Petitioners were therefore arrested, charged, prosecuted, 
convicted, and sentenced by the City of Birmingham in 
order to enforce its unequivocal policy of racial discrimina­
tion in eating facilities set forth in §369 of the City’s Code.*

B. P e titio n e rs ’ C onv ictions W ere  D ecreed  by a M assive 
S ta te  S eg reg a tio n  Policy .

Birmingham’s racial segregation edicts as expressed by 
ordinance have not been limited to restaurants. Becently, 
in Shuttlesworth v. Gaylord, 202 P. Supp. 59 (N. D. Ala. 
1961) an ordinance requiring racial segregation in recrea­
tional facilities was held constitutionally void on equal pro­
tection grounds. An ordinance restricting the areas in 
which Birmingham Negroes might live earlier met a similar 
demise. Monk v. City of Birmingham, 87 F. Supp. 538 
(N. D. Ala. 1949), aff’d 185 F. 2d 859, cert. den. 341 U. S. 
940. Even in the absence of an ordinance, segregation has 
been enforced as a matter of policy, custom, usage and 
arrest, Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958), 
as well as regulation, Boman v. Birmingham Transit Co., 
280 F. 2d 531 (5th Cir. 1960).

# Ordinances of the City of Birmingham are judicially noticeable 
by the Alabama courts. Code of Alabama, Becompiled 1958, Title 7, 
§429(1).



2 4

Also operative liere was an equally affirmative state 
policy of racial segregation in many other areas clearly 
defined by statute. Alabama is, of course, one of the south­
ern states in which there is still complete racial segrega­
tion at every level of public education, despite the repeal 
of school segregation laws in 1956,1 replaced by a state 
pupil assignment law, see, Shuttlesworth v. Board of Ed­
ucation, 162 F. Supp. 372 (N. D. Ala. 58 aff’d 358 U. S. 
101), which has produced no desegregation.2 There can 
be no intermarriage between the races in Alabama.3 Adul­
tery and fornication between Negroes and whites is a spe­
cial crime.4 5 State policy requires the segregation of pau­
pers,6 prisoners,6 railroad waiting rooms,7 railroad coaches,8 
motor busses,9 accounts of poll taxes paid by each race,10 
delinquents,11 tubercular patients,12 and residents of mental 
institutions.13

Consequently, involved in this case is the enforcement of 
sta te  policy expressed in a city ordinance and buttressed by

1 Ala. Const., Art. 14, §256.
2 Southern School News, August 1960, Yol. 9, No. 2, p. 1.
3 Oreen v. State, 58 Ala. 190.
4 Ala. Code, Recompiled, 1958, Title 14-360.
5 Id. Title 44-10.
6 Id. Title 45-52 and 121-3.
7 Id. Title 48-186.
8 Id. Title 48-196-198.
9 Id. Title 48-301 (31a) to (31c) held unconstitutional in 

Browder v. Gayle, 142 F. Supp. 707, aff’d 352 U. S. 903.
10 Id. Title 51-244.
11 Id. Title 52-613 (1).
12 Id. Title 45 §4.
13 Id. Title 45 §248.



2 5

a network of state segregation statutes. But if there is 
anything which is proscribed by the equal protection clause 
of the Fourteenth Amendment to the Federal Constitution, 
it is the enforcement of an affirmative state policy of racial 
segregation. And when, as here, it is enforced by the ex­
ecutive and judicial arms of the state, via arrest, prosecu­
tion, conviction and sentence for trespass after warning, 
consisting of refusal to leave a white department store 
lunch counter, the Fourteenth Amendment’s injunction 
clearly applies. Shelley v. Kraemer, 334 U. S. 1.

C. S ta te  E n fo rc e m e n t o f P riv a te  R ac ia l D isc rim in a tio n  Is 
L ikew ise P ro sc r ib e d  b y  th e  F o u r te e n th  A m en d m en t.

Birmingham’s segregation ordinance, by its terms, does 
not place any criminal liability on petitioners. The ordi­
nance makes it unlawful to operate a restaurant which is 
nonsegregated. Consequently, in each of these cases, the 
City complained that these petitioners ‘‘did go or remain 
on the premises of another, said premises being the area 
used for eating, drinking, and dining purposes and located 
within the building commonly and customarily known as
..................... , after being warned not to do so, contrary
to and in violation of Section 1436 of the General City 
Code of Birmingham of 1944.”

The City’s attorney contended on the trial that there 
was nothing more involved here than the enforcement of 
this ordinance. “I want to object to the references to the 
segregation ordinance. This ordinance has nothing to do 
with the matter of segregation and applies to anybody on 
the premises of another who is asked to leave and refuses. 
Segregation is not mentioned in the ordinance” (R. 26).

But in every case, the City introduced evidence to prove 
that petitioners were asked by some employee of the store



2 6

to leave the dining area reserved for white customers (R. 
21, 115, 162, 211, 252-253).

The record is thus clear that the City was fully aware 
that the enforcement of racial segregation was involved 
in its prosecution of petitioners.

Petitioners’ convictions were affirmed by the Court of 
Appeals of Alabama as against a Fourteenth Amendment 
equal protection claim on the ground that the department 
store had “a full right to limit the use of its own premises 
as it saw fit” (R. 63). But, Shelley v. Kraemer, 334 U. S. 1, 
teaches that although there may, in some circumstances, 
be a personal privilege to discriminate on the grounds of 
race, this privilege may be exercised only so long as it does 
not require the assistance of the state for its effectuation. 
Discrimination on the part of a private individual becomes 
state action at the point at which the state becomes in­
volved. Burton v. Wilmington Parking Authority, 365 U. S. 
715. And the fact that such discrimination is enforced by 
the judicial arm of the state acting as a “neutral” referee 
does not preclude application of the Fourteenth Amend­
ment’s prohibition. Shelley v. Kraemer, supra. See also, 
Barrows v. Jackson, 341 U. S. 524; N.A.A.C.P. v. Alabama, 
357 U. S. 499, 463. The Fourteenth Amendment also has 
been invoked against racial discrimination on the part of 
the police. Taylor v. Louisiana, 370 U. S. 154; Monroe v. 
Pape, 365 U. S. 167; Screws v. United States, 325 U. S. 91. 
The only private discrimination outside the scope of the 
Fourteenth Amendment is that which is “unsupported by 
state authority in the shape of laws, customs or judicial 
or executive proceedings” or “not sanctioned in some way 
by the state.” Civil Rights Cases, 109 U. S. 3, 17. Clearly 
within the scope of that amendment is “state laws or state 
proceedings,” Civil Rights Cases, supra, at pp. 11, 23.



2 7

These convictions are void not only because they fly in 
the face of the Fourteenth Amendment’s prohibitions, but 
they deprive petitioners of rights secured to them by laws 
enacted by the Congress to enforce the provisions of that 
Amendment. Title 42, United States Code, §§1981, 1982 
and 1983. Section 1981 provides, “All persons within the 
jurisdiction of the United States shall have the same right 
in every state and territory to make and enforce contracts 
* * * and to the full and equal benefit of all laws and pro­
ceedings for the security of persons and property as is en- 
joyed by white citizens * * * .” This is a case, therefore, 
where “the majestic generalities of the Fourteenth Amend­
ment are thus reduced to a concrete statutory command 
when cases involve race or color which is wanting in every 
other case of alleged discrimination.” Fay v. New York, 
332 U. S. 261, 282-283.

In any event, the City’s segregation ordinance and the 
massive state racist policy of which that ordinance is a 
part, precludes any suggestion that here the department 
store owners acted privately, unsanctioned by the state. In 
the context of this case, the department store’s “preference 
does not make the action ‘private,’ rather than ‘state,’ ac­
tion. If it did, a minuscule of private prejudice would con­
vert state into private action. Moreover, where the segre­
gation policy is the policy of a state, it matters not that 
the agency to enforce it is a private enterprise.” Garner 
v. Louisiana, 368 U. S. 157, 181 (Mr. Justice Douglas con­
curring).

The Court of Appeals of Alabama ruled that the appel­
lant “would destroy [the department store’s] property 
right by attempting to misapply the Fourteenth Amend­
ment, ignoring the provision in that Amendment that grants 
the right to a private property owner to the full use of his



2 8

property,. . . ” (B. 63). Significantly enough, the state does 
not claim that it prosecuted petitioners to secure the 
owner’s interest in privacy. Such a claim would be in­
consistent with the obvious fact that the owner of the 
premises here has thrown them open to the public, includ­
ing petitioners, for his own profit. Any suggestion that 
some exception to the Shelley rule should be made for a 
corporation which has sought state aid in enforcing racial 
discrimination in its premises open to the general public 
for profit, because somehow the inviolability of a private 
home may be impaired, is without merit. If this case in­
volved the enforcement of a trespass law to protect a real 
interest in privacy, as opposed to the situation here, ob­
viously a different result might obtain because of the im­
portance of the right of privacy which this Court has pro­
tected in other contexts. Breard v. Alexandria, 341 U. S. 
622, 626, 644; Kovacs v. Cooper, 336 U. S. 77. But in Martin 
v. Struthers, 319 U. S. 141, this Court weighed the privacy 
consideration against the competing constitutional right 
of freedom of religion and ruled in favor of the latter.14 
In these cases, the right to be free from state enforced 
racial segregation such as is evidenced by these records 
is not competing with any other interest which the state 
may have in protecting privacy.15

14 And see Watchtower Bible and Tract Soc. v. Metropolitan Life 
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948), in which the New 
York courts distinguished between the right to solicit in the streets 
of a large scale housing project and to go, without invitation, into 
the hallways to visit private apartments.

15 To weigh considerations of privacy in a case involving racial 
discrimination would comport with the views of the framers of 
the Fourteenth Amendment. During the debate on the bill to 
amend the Civil Bights Act of 1866, 14 Stat. 27, which served as the 
precursor to the Civil Bights Act of 1875, 18 Stat. 335, Senator 
Sumner distinguished between a man’s home and places and facili­
ties of public accommodation licensed by law: “Each person, 
whether Senator or citizen, is always free to choose who shall be his



2 9

B. No Essential Property Right of the Departm ent 
Store Is Infringed Here,

In affirming the convictions of petitioners the Court of 
Appeals of Alabama ruled that the petitioners’ Fourteenth 
Amendment claims would do violence to the property rights 
of the store owners: “The right to operate a restaurant on 
its own premises under such conditions as it saw fit to im­
pose was an inalienable property right possessed by” the 
department stores (E. 63). The Alabama court would thus 
distinguish these cases from those in which this Court in­
voked the prohibitions of the Fourteenth Amendment

friend, his associate, his guest. And does not the ancient proverb 
declare that a man is known by the company he keeps? But this 
assumes that he may choose for himself. His house is his 'castle’; 
and this very designation, borrowed from the common law, shows 
his absolute independence within its walls; * * * but when he leaves 
his ‘castle’ and goes abroad, this independence is at an end. He 
walks the streets; but he is subject to the prevailing law of Equal­
ity;  nor can he appropriate the sidewalk to his own exclusive use, 
driving into the gutter all whose skin is less white than his own. 
But nobody pretends that Equality in the highway, whether on 
pavement or sidewalk, is a question of society. And, permit me to 
say that Equality in all institutions created or regulated by law 
is as little a question of society” (emphasis added). After quoting 
Holingshed, Story, Kent, and Parsons on the common law duties of 
innkeepers and common carriers to treat all alike, Sumner then 
said : “As the inn cannot close its doors, or the public conveyance 
refuse a seat to any paying traveler, decent in condition, so must it 
be with the theater and other places of public amusement. Here 
are institutions whose peculiar object is the ‘pursuit of happiness,’ 
which has been placed among the equal rights of all.” Cong. Globe, 
42d Cong.; 2d Sess. 382-383 (1872). It is not unreasonable that 
considerations of privacy should weigh so heavily. The right of 
privacy against intrusion on one’s premises or into one’s personal 
affairs, 4 Blackstone’s Commentaries Ch. 13, §5(6) (Wendell’s Ed. 
1850), was recognized at common law, and is recognized generally 
in American law. See A. L. I., Restatement of Torts, §867 (1939). 
This Court has recently reiterated that the due process clause pro­
tects privacy against intrusion by the States. Mapp v. Ohio, 367 
U. S. 643, 654, 655; Wolf v. Colorado, 338 U. S. 25, 27-28. Cf. 
Gilbert v. Minnesota, 254 U. S. 325, 336 (Justice Brandeis dissent­
ing) ; Public Utilities Comm’n v. Poliak, 343 U. S. 451, 464, 468.



3 0

against state enforcement of racial segregation by pro­
claiming the rights involved here to be wholly and solely 
the inalienable property rights of the store owners.

For this reason, a reexamination of the property right 
asserted here is required. States can and do prohibit racial 
discrimination in public eating places without offending 
any constitutionally protected property rights.16 Notwith­
standing the prohibitions of the Fourteenth Amendment, 
Alabama has imposed the requirement of racial segrega­
tion on private property owners as evidenced by the res­
taurant segregation ordinance in this case. Consequently, 
the claimed inviolate property right to discriminate as 
one desires on his property is not quite so absolute and 
inalienable as Alabama claims. “ [T]he power of the state 
to create and enforce property interests must be exercised 
within the boundaries defined by the Fourteenth Amend­
ment.” Shelley v. Kraemer, 334 U. S. 122 citing Marsh v. 
Alabama, 326 U. S. 501. In the Marsh case, supra, at 506 
this Court ruled: “The more an owner for his benefit opens 
up his property for use by the public in general, the more 
do his rights become circumscribed by the statutory and 
constitutional rights of those who use it. Cf. Republic 
Aviation Co. v. Labor Board, 324, U. S. 793, 798, 802 n. 8.” 
No claim is made here that the Fourteenth Amendment 
forbids a state to assist in the enforcement of property 
rights, per se. Obviously the state has an obligation not 
to engage in or assist in the invasion of the privacy of the 
home. Considerations of privacy discussed in more detail,

16 See Western Turf Ass’n v. Greenberg, 204 U. S. 359; Railway 
Mail Ass’n v. Corsi, 326 U. S. 88; District of Columbia v. John R. 
Thompson Co., 346 U. S. 100; Bob-Lo Excursion Co. v. Michigan, 
333 U. S. 28; Konvitz & Leskes, A  Century of Civil Rights 172-177 
(1961).



3 1

supra pp. 27-29, afford a basis for distinguishing between 
permissible and impermissible state action in this area.

Since “property or ownership” is, as Mr. Justice Cardozo 
has written, a “bundle of privileges,” Henneford v. Silas 
Mason Co., 300 U. S. 577, 582, or as stated elsewhere, “a 
group or bundle of rights” given by the state, Blodgett, 
Comparative Economic Systems 24 (1944), it matters a 
great deal which of the rights or privileges constituting the 
owner’s property was enforced in this prosecution. Various 
characteristics of the property interest demonstrate that 
this case should not depart from the general rule that states 
may not support racial discrimination.

The asserted property interest is but a claimed right to 
control the conduct and associations of others. But this 
claimed right is clearly separable from other incidents of 
ownership of the property such as fixing prices, choosing- 
merchandise for sale, setting hours of business, selling the 
business or closing it down, to name but a few.

The power to regulate the conduct and associations of 
others has never been an unrestrained property right. Il­
lustrations include limitations that the law has placed on 
those who would use their property to control the conduct 
of donees, as by requiring divorce or separation,17 or with 
respect to marriage,18 restrictions compelling separation of

17 Provisions requiring divorce or separation were held void in : 
Dwyer v. Kuchler, 116 N. J. Eq. 426, 174 Atl, 154 (Oh. 1934) ; In  
Be Haight’s Will, 51 App. Div. 310, 64 N. Y . S. 1029 (2d Dept. 
1900) ; Davidson v. Wilmington Trust Co., 23 Del. Ch. 1, 2 A. 2d 
285 (Ch. 1938) ; Winterland v. Winterland, 389 111. 384, 59 N. E. 
2d 661 (1945); Hawke v. Euyhart, 30 Neb. 149, 46 N. W, 422 
(1890) ; Cruger v. Phelps, 21 Mise. 252, 47 N. Y. S. 61 (Sup. Ct. 
1897).

18 Certain marriage clauses have been held ineffective, 6 Powell, 
Beal Property 1(851; A. L. I., Bestatement of Property, §424 
(1944); Maddox v. Maddox, Adm’r, 52 Va. 804 (1954).



3 2

a child from its parents,19 and requirements controlling cer­
tain personal habits.20

The power to impose restraints on alienation has been 
severely limited by courts and legislatures.21 Restrictive 
covenants have been limited by common law.22 Their en­
forcement in courts of equity23 and courts of law24 has 
been forbidden by the Fourteenth Amendment where race 
was the reason for the restriction. And, of course, the rule 
against perpetuities is of ancient lineage.25

A business man is not always free to set his own prices. 
Fair trade acts on the one hand, approved by the Miller- 
Tydings Act amendment of §1, of the Sherman Act, 15 
U. S. C. §1, require some businessmen to sell at fixed prices.

19 Restrictions which compel the separation of a minor child from 
its parent have not been viewed with favor, 6 Powell, Beal Property 
1[858, at 64; In  Be Carple’s Estate, 140 Misc. 459, 250 N. Y. S. 680 
(Surr. Ct. 1931) ; In Be Forte’s Will, 149 Misc. 327, 267 N. Y. S. 
603 (Surr. Ct. 1933) ; In  Be Banney’s Estate, 161 Misc. 626, 292 
N. Y. S. 476 (Surr. Ct. 1936).

20 Holmes v. Connecticut Trust & Safe Deposit Co., 92 Conn. 507, 
103 Atl. 640 (1918) (condition that conveyee’s husband abstain 
from tobacco and liquor held void); cf. D’Arcangelo v. D’Arcangelo, 
137 N. J. Eq. 63, 43 A. 2d 169 (Ch. 1945) (legatee must employ 
testator’s brother as bus driver, at designated salary for a corpora­
tion in which legatee had received an interest; invalidated).

21 Gray, Bestraints on the Alienation of Property §259 (2d ed. 
1895); A. L. I., Bestatement of Property, Div. 4, Social Restrictions 
Imposed Upon the Creation of Property Interests 2121 (1944) ; 
Browder, Illegal Conditions and Limitations: Miscellaneous Pro­
visions, 1 Okla. L. Rev. 237 (1948).

22 Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925).
23 Shelley v. Kraemer, 334 U. S. 1.
24 Barrows v. Jackson, 346 U. S. 249.
25 Gray, The Buie Against Perpetuities §201 (4th ed. 1942) ; 6 

Powell, Beal Property, ff759-827; Leach, Perpetuities in a Nutshell, 
51 Harv. L. Rev. 638 (1938).



3 3

Anti-trust concepts on the other hand, originating in the 
common law, Apex Hosiery Co. v. Leader, 310 U. S. 469 
(1940), United States v. Addyston Pipe <& Steel Co., 85 
Fed. 271 (6th Cir. 1898), aff’d, 175 U. S. 211 (1899), and 
embodied in the statutes of the United States, Eobinson- 
Patman Act, 15 U. S. C. §13 et seq.; Clayton. Act, 15 U. S. C. 
§12 et seq.; Sherman Anti-Trust Act, 15 U. S. C. §1 et seq., 
have condemned price discrimination, price fixing, and con­
spiracies to fix resale prices. The right to select customers 
has also been curtailed by the antitrust laws,26 as well as 
common law, and even the right of a single trader has been 
greatly limited.27

Numerous statutes and ordinances limit property holders 
in their power to refuse to sell or rent on grounds of race 
or color28 or to refuse to serve patrons in public accom­

26 Klor’s v. Broadway-Hale Stores, 359 U. S. 207 (1959); Lorain 
Journal Co. v. U. S., 342 U. S. 143 (1951).

27 United States v. Colgate, 250 U. S. 300 (1919); See V. S. v. 
Parke, Davis Co., 362 U. S. 29 (1960) ; Rankin, The Parke, Davis 
Case, 1961 Antitrust Law Symposium, New York State Bar As­
sociation Section on Antitrust Law 63 (1961).

28 Cal. Health & Safety Code §35740; Mass. G. L. e. 151B, 
§6 (Supp. 1961); N. J. Stat. Ann. §18:25-4 (Supp. 1961); Wash. 
Rev. Code §§49.60.030, 49.60.040 (1957); Cal. Civil Code, §51 
(Supp. 1961) ; Colo. Rev. Stat. Ann. §§69-7-1, to 69-7-7 (Supp. 
1960); Conn. Stat. Rev. §53-35 (Supp. 1960); Mass. Gen. L. c. 
151B, §4 (Supp. 1961), as amended by Acts, 1961, c. 128; Minn. 
Stat. Ann. §§363.01-.13, as amended by L. 1961, c. 428 to become 
effective in 12/31/62; Ore. Rev. Stat. §659.033 (1959) ; N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. Y. Executive Law, §290 
(Supp. 1962); Pa. Stat. Ann., tit. 43, §953 (Supp. 1961). Cases 
holding some of the ordinances and statutes constitutional a re : 
Levitt <& Sons, Inc. v. Division Against Discrimination, 31 N. J. 
514, 158 A. 2d 177 (1960); Mass. Comm’n Against Discrimination 
v. Colangelo, 30 U. S. L. W. 2608 (Mass. 1962); State Comm’n 
Against Discrimination v. Pelham Hall Apartments, 10 Misc. 2d 
334, 170 N. Y. S. 2d 750 (Sup. Ct. 1958).



3 4

modations on the grounds of race or color.29 Historically, 
the right to select customers has been limited by common 
law and statute.30 * * * * 35 It is well known that innkeepers and car­
riers do not have freedom arbitrarily to select or reject 
patrons. Beale, The Law of Innkeepers and Hotels (1906).

The foregoing limitations on the power to control the 
conduct and associations of others describe particular ex­
amples of the general principle that “property rights” are 
not “sacred” and “inalienable” in the sense that common 
law, statute, and constitution may not limit or shape them 
where they have harmful public consequences. Further

29 Cal. Civil Code, §§51-52 (Supp. 1960) • Colo. Rev. Stat. Ann. 
25—1—1 et seq. (1953) ; Conn. Gen. Stat. Rev. §53-35 (Supp. 
1961); D. C. Code §47-2901 et seq. (Supp. 1960); Indiana Stat. 
Ann. §§10-901, 10-902 (Supp. 1962) ■ Iowa Code Ann. §735.1 
(1950) ; Kansas Gen. Stat. Ann. §21-2424 (1949) ; Mass. Gen. L. 
e. 272, §§92A, 98 (1956) ; Mich. Stat. Ann. §28.343 (Supp. 1959); 
Minn. Stat. Ann. §327.09 (1947) ; Mont. Rev. Codes §64-211 
(Supp. 1961); Neb. Rev. Stat. §§20-101, 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 c. 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) ; 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. §§6-83.1, 
6-83.2 (Supp. 1961).

30 Mund, “The Right to Buy—And Its Denial to Small Business,”
Senate Document #32, 85th Cong., 1st Sess., Select Committee on
Small Business (1957) ; Adler, Business Jurisprudence, 28 Harv. 
L. Rev. 135 (1914) ; Statute of Labourers, 25 Ed. I l l ,  Stat. 1
(1350) (no one could refuse to practice his calling to whomsoever 
applied). The following statutes penalized a businessman’s refusal
to serve all comers: (1357), 31 Ed. I l l ,  e. 10 (victualers) ; (1360),
35 Ed. I l l  (fishermen); (1433), 11 Hen. VI, c. 12 (chandlers); 
(1464), 4 Ed. IV, e. 7 (shoemakers) ; Lane v. Cotton, 1 Ld. Raym. 
646, 655; 1 Salk. 18, 19; 12 Mod. 472, 485 (“If a man takes upon 
himself a public employment, he is bound to serve the public as far 
as the employment extends; and for refusal an action lies . . . ” ).



3 5

examples indicate different aspects of this thoroughly set­
tled, fundamental legal truth. Property owners have been 
compelled to destroy valuable cedar forests which har­
bored fungus threatening neighboring apple orchards,31 to 
spend funds to install fire extinguishing equipment,32 to 
limit the size of billboards,38 and to make loaves of bread 
a certain size.34 Moreover, employers have been compelled 
to allow labor organizational activities to be conducted on 
their property.35

And only recently property owners have been forbidden 
to use their property in a way which would intimidate 
Negro lessees in the exercise of the right to vote. United 
States v. Beaty, 288 F. 2d 653 (5th Cir. 1961).

Other facets of the claimed property right to discrimina­
tion on the basis of race in these circumstances are clearly 
separable from the core of the owner’s interest in its busi­
ness. In addition to the fact that no privacy has been 
intruded upon, the asserted property right did not seek 
to protect the premises from a use alien to their intended 
function. Petitioners sought only to use the premises and 
consume food in an area provided for such activity. The 
asserted right to exclude expressed only a preference for 
racial segregation and not any objection to petitioners 
demeanor or conduct. The capricious nature of discrim­
ination is highlighted by the fact that in one store, Kress’ 
5 & 10, there is a luncheonette in the basement where 31 32 33 34 35 *

31 Miller v. Schoene, 276 U. S. 272 (1928).

32 Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946).

33 Sender v. Oregon State Board of Dental Examiners, 294 U. S. 
608 (1935) ; St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 
269 (1919) ; Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917).

34 Schmidinger v. Chicago, 226 U. S. 578.

35 N.L.R.B. v. Babcock & Wilcox Co., 351 U. S. 105 (1 9 5 5 ); Re­
public Aviation Corp. v. N.L.R.B., 324 U. S. 793 (1945).



3 6

Negroes are permitted to purchase food to take out but 
are not permitted to sit down and eat (E, 218).

As in Shelley v. Kraemer, 334 U. S. 1, 10, the restaurant 
did not limit the type of use made of the premises, nor 
the type of persons or conduct permitted thereon. The 
restriction referred only to race. Moreover, the property 
interest enforced below attempted only to achieve discrim­
ination in premises thrown open by the owner to the gen­
eral public, including petitioners, for his own business 
advantage. Cf. Marsh v. Alabama, 326 U. S. 501, 506. The 
specific area within the store in dispute, i.e., the lunch 
counter, was a public part of the premises and an integral 
part of a single commercial establishment serving the 
public. Consequently, the property interest enforced below 
is simply a claimed right to enforce racial discrimination 
in very particular circumstances. It obviously is not true 
that refusal to enforce this asserted incident of ownership 
destroys the whole bundle of rights. That result would be 
contrary to the entire genius of our jurisprudence. The 
premise that the stores own the property does not lead 
to the ultimate logical extreme that they may absolutely 
control the conduct and association of others in the store. 
Mr. Justice Holmes has written that, “All rights tend to 
declare themselves absolute to their logical extreme yet 
all in fact are limited by the neighborhood of principles 
of policy which are other than those on which the particular 
right is founded and which become strong enough to hold 
their own when a certain point is reached.” Hudson County 
Water Co. v. McCarter, 209 U. S. 345, 355. Only last term 
Mr. Justice Frankfurter, dissenting, pointed out the in­
dubitable truth, “That an end of discrimination against 
the Negro was the compelling motive of the Civil War 
Amendments. The Fifteenth expresses this in terms and 
it is no less true of the Equal Protection Clause of the



Fourteenth.” Baker v. Carr, 369 U. S. 186, 285-86. In 
these cases the department stores property rights are 
limited by the Fourteenth Amendment and do not reach 
the constitutionally untenable, logical extreme that the 
states may aid the stores in upholding racism. “The Con­
stitution confers upon no individual the right to demand 
action by the state which results in the denial of equal 
protection of other individuals.” Shelley v. Kraemer, 324 
IT. S. 1, 22.

E. T h e  S ta te  M ay N ot A rre s t a n d  C onvict P e titio n e rs  fo r  
H av ing  V io lated  th e  S ta te’s S eg reg a tio n  Policy  in  
P rem ise s  in  W h ich  th e  S ta te  Is D eeply  Involved  
T h ro u g h  Its  L icensing  an d  R eg u la to ry  Pow ers.

The all pervading nature of the state’s involvement—- 
evidenced by extensive regulation and licensing—in the 
premises where petitioners were arrested for violating the 
state’s racial segregation policy demonstrates even further 
the necessity for invalidating the judgments below. Dis­
crimination here has been enforced in an area of public life 
with which the state is so intimately involved that the 
department stores lunch counters are by law extensively 
licensed and regulated. The extensive public character of 
the enterprise is revealed not only by the fact that the stores 
serve the general public but by the interest which the state 
has demonstrated in that service. There is detailed regu­
lation of business corporations of the type involved here 
under Alabama law.36 Dispensing of food in Birmingham 
also is extensively regulated,37 including inspection of prem­
ises and the issuing of permits by the Health Department.38

36 Code of Alabama, Recompiled 1958, Title 10, §§1 to 263.
37 General City Code Birmingham, 1944, Ch. 14.
38 Id. §§348 and 376(a).



38

Alabama imposes a restaurant license tax,39 requires a 
soft drink retailer’s license,40 stores generally must be 
licensed,41 and of course there are health laws and regu­
lations for the operation of food handling establishments 
under state laws.42 As Mr. Justice Douglas wrote in Garner 
v. Louisiana, 368 U. S. at 183-84:

A state may not require segregation of the races on 
conventional public utilities any more than it can seg­
regate them in ordinary public facilities. As stated by 
the court in Boman v. Birmingham Transit Co. (C. A. 
5 Ala.), 280 F. 2d 531, 535, a public utility “is doing 
something the state deems useful for the public neces­
sity or convenience.” It was this idea that the first 
Mr. Justice Harlan, dissenting in Plessy v. Ferguson,
. . . advanced. Though a common carrier is private 
enterprise, “its work” he maintained is public. Id. 163 
U. S. at 554. And there can be no difference, in my 
view, between one kind of business that is regulated 
in the public interest and another kind so far as the 
problem of racial segregation is concerned. I do not 
believe that a State that licenses a business can license 
it to serve only whites or only blacks or only yellows 
or only browns. Race is an impermissible classifica­
tion when it comes to parks or other municipal facil­
ities by reason of the Equal Protection Clause of the 
Fourteenth Amendment.

In Public Utilities Comm’n v. Poliak, 343 U. S. 451, this 
Court found sufficient governmental responsibility to re­

39 Code of Alabama, Recompiled 1958, Title 51, §582.
40 Id. Title 51, Section 482.
41 Id. Title 51, Sections 620-629.
42 Id. Title 22, Section 85.



3 9

quire decision of a Fifth Amendment due process claim 
where the principal governmental involvement was a deci­
sion by a regulatory body to do nothing about private 
activity (radio broadcast on streetcars) it could have pro­
hibited. The lunch counter in this case is also regulated by 
government, although perhaps not so closely as the street­
car company in Poliak. But this case has an element that 
the Poliak, case did not, i.e., that government has done so 
much to encourage racial segregation in public life that 
it must share responsibility for the discriminatory rule.

And see Steele v. Louisville and Nashville R.R. Co., 323 
U. S. 192; Nixon v. Condon, 286 U. S. 73; Betts v. Easley, 
161 Kans. 459, 169 P. 2d 831. In each of these cases, State 
initiative and licensing in establishing and maintaining 
the enterprise led to a holding or implication that the Fifth 
or Fourteenth Amendments forbid racial discrimination.

Here, indeed, is a case where the State “to some sig­
nificant extent” in many meaningful “manifestations has 
been found to have become involved. . . . ” Burton v. 
Wilmington Parking Authority, 365 U. S. 715, 722.

F. T h ese  C onvictions M ust Be R eversed  Since, in  
A dd itio n  to  th e  F o reg o in g , A labam a H as F ailed  
to  P ro te c t P e titio n e rs ’ R ig h ts  to  E q u a l Access 
to  P u b lic  A ccom m odations.

In the preceding sections of this brief, petitioners have 
established a basis for reversal of their convictions on 
several grounds: enforcement of a city ordinance requiring 
racial segregation, buttressed by a massive state segrega­
tion policy, state enforcement of private racial discrimina­
tion, enforcement of an arbitrary property claim, and 
elaborate state initiative and involvement in the enter­
prise and its maintenance. To these grounds for re­
versal should be added the states’ failure to provide equal



4 0

protection of the laws to petitioners in their right to equal 
access to public accommodations. Alabama has failed to 
provide what the Civil Rights Cases assumed the states did 
provide: “a right to enjoy equal accommodations and priv­
ileges” which this Court termed “one of the essential rights 
of the citizen which no state can interfere with.” 109 U. S. 
at 19.

This Court has recognized that failure or refusal of a 
state to act can deny the equal protection of the laws. 
Burton v. Wilmington Parking Authority, 365 U. S. 715, 
725; Terry v. Adams, 345 U. S. 461, 469; Truax v. Corrigan, 
257 U. S. 312; see Lynch v. United States, 189 F. 2d 476 
(5th Cir. 1951); Catlette v. United States, 132 F. 2d 902 
(4th Cir. 1943).

Indeed, it is questionable whether the verbal concept of 
“state action” in equal protection cases rests on more than 
a misunderstanding,43 for the phrase, no state shall deny 
equal protection, refers even more naturally to state in­
action than to state action.

Mr. Justice Woods, a member of the majority of the Civil 
Rights Cases, stated in United States v. Hall, 26 Fed. Cas. 
79, 81 (No. 15,282 1871):

Denying includes inaction as well as action, and deny­
ing the equal protection of the laws includes the omis­
sion to protect, as well as the omission to pass laws 
for protection.

His concurrence with the majority in the Civil Rights Cases 
may, therefore, be explained by his agreement with their

43 See, generally, Mr. Justice Harlan dissenting in Civil Rights 
Cases, 109 U. S. 3, 26-62.



4 1

assumption that remedies against the discrimination in 
those cases existed under state law.

This indeed was a view held by some of the legislators 
concerned with the scope of the Amendment at or around 
the time of its passage. For example, Representative 
Wilson of Indiana in debates on the Enforcement 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 protec­
tion shall be provided for all persons.

2. That a failure to enact the proper laws for that pur­
pose, or a failure to enforce them, is a denial of equal 
protection. (Emphasis added.)

3. That when there is such a denial Congress may enact 
laws to secure equal protection.44 45

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.49

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. It shall not deny hy 
acts of omission, by a failure to prevent its own citizens

44 Cong. Globe, 42nd Congress, 1st Sess., p. 483 (1871).
45Cong. Ree., 43d Cong., 1st Sess. 412 (1874).



4 2

from depriving by force any of their fellow-citizens of 
these rights.46 (Emphasis added.)

This view is endorsed by the opinion in the Civil Rights 
Cases, for that decision was based on the assumption that 
the states in question would provide remedies securing 
to their citizens the right of access to places of public 
accommodation without racial discrimination:

We have discussed the question presented by the law 
on the assumption that a right to enjoy equal accom­
modations and privileges in all inns, public conveyances, 
and places of public amusement, is one of the essential 
rights of the citizen which no state cam, abridge or 
interfere with (109 U. S. at 19). (Emphasis added.) 

# # # * #
Can the act of a mere individual, the owner of the inn, 
the public conveyance or place of amusement, refusing 
the accommodation, 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 laws of the State, and presumably 
subject to redress by those laws until the contrary 
appears? (109 TJ. S. at 24). (Emphasis added.)

46 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 Rep­
resentative Bingham of Ohio, the framer of the key phrases in 
Section One, it was repeatedly stated that the Fourteenth Amend­
ment 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 in­
dividuals violating the rights of others. Cong. Globe, 42d Congress, 
1st Sess. 459.



4 3

Mr. Justice Bradley’s entire opinion was concerned with 
the question whether the Fourteenth Amendment had con­
ferred on Congress the power to regulate the acts of private 
individuals when, as he presumed, the States were exercis­
ing their responsibilities toward the goal of eliminating 
racial discrimination. While he concluded in the negative, 
it is extremely doubtful that the result would have been 
the same if a state had been found to be in effect sanction­
ing private discrimination by laxity in this regard. See 
Konvitz & Leskes, A Century of Civil Bights 150 (1961); 
Abernathy, Expansion of the State Action Concept Under 
the Fourteenth Amendment, 43 Cornell L. Q. 375, 376; Hale, 
Force and the State: A Comparison of “Political” and 
“Economic” Compulsion, 35 Colum. L. Rev. 149, 184 (1935); 
Poliak, Racial Discrimination and Judicial Integrity: A 
Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1, 21 
(1959).

This case, therefore, is like Burton v. Wilmington Park­
ing Authority, 365 U . S. 715, 725:

[T]he Authority could have affirmatively required 
Eagle to discharge the responsibilities under the Four­
teenth Amendment imposed upon the private enter­
prise as a consequence of state participation. 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 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 discrim­
ination.

For here in an area in which the State is deeply involved 
it has both positively and negatively sanctioned the racial 
segregation which gave rise to this case.



4 4

II.
T he D ecision Below Conflicts W ith  D ecisions o f This 

C ourt S ecuring  th e  R ight o f F reedom  o f E xpression  
U nder th e  F o u rteen th  A m endm ent to  th e  C onstitu tion  
o f th e  U nited  States.

A. T h e  E n fo rc e m e n t o f th e  S ta te  a n d  City S eg reg a tio n  
Po licy  a n d  th e  In te r fe re n c e  o f th e  P o lice  V io la ted  
P e titio n e rs ’ R ig h t to  F re e d o m  o f E x p ressio n .

Petitioners were engaged in the exercise of free expres­
sion, by verbal and nonverbal requests to the management 
for service, and nonverbal requests for nondiscriminatory 
lunch counter service, implicit in their continued presence 
in the dining area when refused service. As Mr. Justice 
Harlan wrote in Garner v. Louisiana: “We would surely 
have to be blind not to recognize that petitioners were 
sitting at these counters, when they knew they would 
not be served, in order to demonstrate that their race 
was being segregated in dining facilities in this part of the 
country.” 368 U. S. at 201. The manner of petitioners’ 
expression was entirely appropriate to the time and place 
at which it occurred. Petitioners did not shout or obstruct 
the conduct of business. There were no speeches, picket 
signs, handbills or other possibly inappropriate forms of 
expression in the store. Rather they offered to purchase 
in a place and at a time set aside for such transactions. 
Their protest demonstration was a part of the “free trade 
in ideas,” Abrams v. United States, 250 U. S. 616, 630, 
Holmes, J dissenting, within the range of liberties pro­
tected by the Fourteenth Amendment, even though non­
verbal. Stromberg v. California, 283 U. S. 359 (display 
of red flag) ; Thornhill v. Alabama, 310 U. S. 88 (picketing) ; 
West Virginia State Board of Education v. Barnette,



4 5

319 U. S. 624, 633-634 (flag salute); N.A.A.C.P. v. Alabama, 
357 U. S. 449 (freedom of association).

Questions concerning free speech expression are not 
resolved merely by reference to the fact that private prop­
erty is involved. The Fourteenth Amendment right to 
free expression on private property takes contour from 
the circumstances, in part determined by the owner’s pri­
vacy, his use and arrangement of his property. In Breard 
v. Alexandria, 341 U. S. 622, 644, the Court balanced the 
“householders’ desire for privacy and the publisher’s right 
to distribute publications” in the particular manner in­
volved, upholding a law limiting the publishers’ right to 
solicit on a door-to-door basis. But cf. Martin v. Struthers, 
319 U. S. 141 where different kinds of interests led to a 
corresponding difference in result. Moreover, the manner 
of assertion and the action of the State, through its officers, 
its customs and its creation of the property interest, must 
be taken into account.

In this constitutional context it is crucial, therefore, that 
the stores implicitly consented to the continuance of the 
protest and did not seek intervention of the criminal law. 
For, this case is like Garner v. Louisiana, supra, where 
Mr. Justice Harlan, concurring, found a protected area of 
free expression on private property on facts regarded as 
involving “the implied consent of the management” for the 
sit-in demonstrators to remain on the property. In none 
of the cases at bar did anyone other than the police request 
petitioners to leave the store. In one pair of cases there 
was not even a request to leave the dining area. The 
pattern of police action, obviously, was to arrest Negroes 
in white dining areas. In no case does it appear that anyone 
connected with the store called the police or subsequently 
signed an affidavit or complaint. In each case the police



4 6

officer proceeded immediately to arrest the petitioners with­
out any request to do so on the part of anyone connected 
with the store.

In such circumstances, petitioners’ arrest must be seen 
as state interference in a dispute over segregation at these 
counters and tables, a dispute being resolved by persuasion 
and pressure in a context of economic and social struggle 
between contending private interests. The Court has ruled 
that judicial sanctions may not be interposed to discrim­
inate against a party to such a conflict. Thornhill v. Ala­
bama, supra; San Diego Bldg. Trades Council v. Garmon, 
349 U. S .236.

But even to the extent that the stores may have acqui­
esced in the police action a determination of free expres­
sion rights still requires considering the totality of cir­
cumstances respecting the owner’s use of the property and 
the specific interest which state judicial action supports. 
Marsh v. Alabama, 326 U. S. 501.

In Marsh, this Court reversed trespass convictions of 
Jehovah’s Witnesses who went upon the privately owned 
streets of a company town to proselytize, holding that the 
conviction violated the Fourteenth Amendment. In Re­
public Aviation Corp. v. N.L.R.B., 324 IT. S. 793, the Court 
upheld a labor board ruling that lacking special circum­
stances employer regulations forbidding all union solicita­
tion on company property constituted unfair labor prac­
tices. See Thornhill v. Alabama, supra, involving picketing 
on company-owned property; see also N.L.R.B. v. American 
Pearl Button Co., 149 F. 2d 258 (8th Cir. 1945); United 
Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 (D. C. Cir. 
1956), reversed on other grounds, 357 IT. S. 357. Com­
pare the cases mentioned above with N.L.R.B. v. Pansteel



4 7

Metal Corp., 306 U. S. 240, 252, condemning an employee 
seizure of a plant. In People v. Barisi, 193 Misc. 934, 86 
N. Y. S. 2d 277, 279 (1948) the court held that picketing 
within Pennsylvania Railroad Station was not a trespass; 
the owners opened it to the public and their property rights 
were “circumscribed by the constitutional rights of those 
whose use it.” See also Freeman v. Retail Clerks Union, 
Washington Superior Court, 45 Lab. Rel. Ref. Man. 2334 
(1959); and Slate of Maryland v. Williams, Baltimore City 
Court, 44 Lab. Rel. Ref. Man. 2357, 2361 (1959).

In the circumstances of this case the only apparent 
state interest being subserved by these trespass prosecu­
tions is support of the property owner’s discrimination in 
conformity to the State’s segregation custom and policy 
and the express terms of the City Ordinance. This is all 
that the property owner can be found to have sought.

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “in 
such circumstances and . . .  of such a nature as to create 
a clear and present danger that will bring about the sub­
stantive evil” which the state has the right to prevent. 
Schenck v. United States, 249 U. S. 47, 52. The only “sub­
stantive evil” sought to be prevented by these trespass 
prosecutions is the stifling of protest against the elimination 
of racial discrimination, but this is not an “evil” within 
the State’s power to suppress because the Fourteenth 
Amendment prohibits state support of racial discrimina­
tion. See Cooper v. Aaron, 358 U. S. 1; Terminiello v. Chi­
cago, 337 U. S. 1; Sellers v. Johnson, 163 F. 2d 877 (8th 
Cir. 1947), cert, denied 332 U. S. 851.



4 8

B. T h e  C onvictions D eny P e titio n e rs ’ R ig h t to  F reed o m  
o f E x p re ss io n  in  T h a t T h ey  R est on  a S ta tu te  W h ich  
F a ils  to  R e q u ire  P ro o f  T h a t P e titio n e rs  W ere  R e ­
q u ested  to  Leave by  a P e rso n  W ho H ad  E stab lish ed  
A u th o rity  to  Issue  Such  a R eq u est a t th e  T im e  G iven.

In the courts below petitioners asserted that the ordi­
nance in question as applied to them denied due process 
of law secured by the Fourteenth Amendment to the Con­
stitution of the United States in that it did not require that 
the persons requesting them to leave the dining areas estab­
lished or, indeed, asserted their authority to make the 
demands. In none of the ten records before this court did 
the persons who demanded that petitioners leave first 
inform petitioners or demonstrate to them that they had 
authority to request that the petitioners leave the areas in 
question. Only in one pair of cases (Parker 162, West 192) 
did the witness say that he “identified” himself. Yet there 
was no evidence that he claimed authority to order peti­
tioners out of the dining area, or indeed, that the witness 
possessed such authority. No one ordinarily may be ex­
pected to assume that one who tells him to leave a public 
place, into which the proprietor invited him and in which 
he has traded, is authorized to utter such an order when 
no claim of such authority is made.

This is especially true in the case of a Negro seating 
himself in a white dining area in Birmingham, Alabama— 
obviously a matter of controversy and on which any 
stranger, or the police of a city with a segregation Ordi­
nance, might be expected to volunteer strong views. If 
the statute in question is interpreted to mean that one must 
leave a public place under penalty of being held a criminal 
when ordered to do so by a person who later turns out to 
have been in authority without a claim of authority at the 
time, it means as a practical matter that one must depart



4 9

from a public place whenever told to do so by anyone; the 
alternative is to risk fine or imprisonment. Such a rule 
might be held a denial of due process. Cf. Lambert v. 
California, 355 U. S. 225. But if such is the rule the statute 
gives no fair warning. Winters v. New York, 333 U. S. 
507; Bur sty n v. Wilson, 343 U. S. 495; Said v. New York, 
334 U. S. 558; Chaplinsky v. New Hampshire, 315 U. S. 
568. Absent such notice petitioners surely were entitled 
to assume that one may go about a public place under 
necessity to observe orders only from those who claim 
with some definiteness the right to give them.

Indeed, as a matter of due process of law, if it is the rule 
that one must obey all orders of strangers to leave public 
places under penalty of criminal conviction if one uttering 
the order later turns out to have had authority, petitioners 
are entitled to more warning of its harshness than the Ordi­
nance’s text affirmed. Connolly v. General Construction Co., 
269 U. S. 385; Lametta v. New Jersey, 306 U. S, 451. Other­
wise many persons—like these petitioners—may be held 
guilty of crime without having intended to do wrong. This 
Court has said however, that:

“The contention that an injury can amount to a crime 
only when inflicted by intention is no provincial or 
transient notion. It is as universal and persistent in 
mature systems of law as belief in freedom of the hu­
man will and a consequent ability and duty of the 
normal individual to choose between good and evil.” 
Morrissette v. U. S., 342 U. S. 246, 250.

Morrissette, of course, involved a federal statute as treated 
in the federal courts. But it expresses the fundamental view 
that scienter ought generally to be an element in criminality. 
See Sayre, Public Welfare Offenses, 33 Columbia L. Rev.



5 0

55, 55-6 (1933). The pervasive character of scienter as an 
element of crime makes it clear that a general statute like 
the ordinance now in question, in failing to lay down a 
scienter requirement, gives no adequate warning of an 
absolute liability. Trespass statutes like the one at bar 
are quite different from “public welfare statutes” in which 
an absolute liability rule is not unusual. See Morrissette 
v. United States, supra, 342 U. S. at 252-260.

Indeed, the ordinance in question is significantly different 
from Code of Alabama, Title 14, §426, which at least ex­
culpates those who enter with “legal cause or good excuse” 
a phrase missing from the Birmingham ordinance. Cf. 
Central Iron Co. v. Wright, 20 Ala. App. 82, 101 So. 815; 
McCord v. State, 79 Ala. 269; American Law Institute, 
Model Penal Code, Tentative Draft No. 2, §206.53, Comment.

On the other hand however, if Alabama were to read a 
scienter provision into this ordinance for the first time— 
which it has failed to do although the issue was squarely 
presented in these ten cases—the lack of the necessary ele­
ment of guilt, notice of authority, patent on the face of all 
ten records, would require reversal under authority of 
Garner v. Louisiana, supra; Thompson v. City of Louisville, 
362 U. S. 199.



5 1

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgments below should be reversed.

Respectfully submitted,

Leroy Clark 
W illiam T. Coleman, J r. 
Michael Meltsner 
W illiam R. Ming, J r. 
J ames M. N abrit, III  
Louis H. P ollak 

Of Counsel

Constance B aker Motley 
J ack Greenberg

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores 
P eter A. H all 
Orzell B illingsley, J r. 
Oscar W. A dams, J r.
J. R ichmond P earson

Birmingham, Alabama
Attorneys for Petitioners