Carson v. American Brands, Inc. Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae
Public Court Documents
August 1, 1980
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Brief Collection, LDF Court Filings. Avent v. North Carolina Brief for Petitioners, 1962. 34dd2d7f-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c9065788-ecb4-44ed-8c64-0e86195de608/avent-v-north-carolina-brief-for-petitioners. Accessed April 06, 2025.
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I kt t h e
%>uptmt (Emit iif % States
October Term, 1962
No. 11
J ohn Thomas A vent, et al.,
Petitioners,
-- y.---
N orth Carolina.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF NORTH CAROLINA
BRIEF FOR PETITIONERS
J ack Greenberg
Constance B aker Motley
J ames M. N abrit, III
10 Columbus Circle
New York 19, New York
L. C. B erry, J r.
W illiam A. Marsh, J r.
F. B. McK issick
C. 0 . P earson
W. G. P earson
M. H ugh Thompson
Durham, North Carolina
Attorneys for Petitioners
D errick B ell
Leroy Clark
W illiam T . Coleman, J r .
Michael Meltsner
W illiam R . Ming, J r .
Louis H. P ollak
J oseph L. R auh
H erbert 0 . R eid
Of Counsel
JAMBS M. NAaartM-. lU
INDEX
PAGE
Opinion Below................................................................ 1
Jurisdiction...................................................................... 1
Constitutional and Statutory Provisions Involved..... 2
Questions Presented........................................................ 2
Statement ............................................................ 4
Summary of Argument........ ......................................... 8
A rgument
I. North Carolina in Enforcing What Its Highest
Court Has Denominated a “Clear Legal Eight
of Racial Discrimination” Has Denied to Peti
tioners the Equal Protection of the Laws Se
cured by the Fourteenth Amendment ............... 12
A. Arrest, Conviction, and Sentence to Prison
for Trespass for Having Violated the S. H.
Kress Co.’s Requirement of Racial Segrega
tion at Its Public Lunch Counter Deny Peti
tioners the Equal Protection of the Laws
Secured by the Fourteenth Amendment...... 12
B. Certainly, at Least, the State May Not by
Its Police and Courts Enforce Such Segre
gation When It Stems From a Community
Custom of Segregation Which Has Been
Generated bĵ State Law.................. ............. 17
n
PAGE
C. A Fortiori, the State May Not Arrest and
Convict Petitioners for Having Violated a
Segregation Rule Which Stems Prom a State
Generated, Community Custom of Segrega
tion in Premises in Which the State Is
Deeply Involved Through Its Licensing and
Regulatory Powers....................................... 24
D. No Essential Property of S. H. Kress and
Co. Is Here at Issue; the Right to Make
Racial Distinctions at a Single Counter in
a Store Open to the Public Does Not Out
weigh the High Purposes of the Fourteenth
Amendment.................................................... 27
E. In Any Event the Convictions Below Must
Pall When, in Addition to the Foregoing,
North Carolina Has Failed to Protect Negro
Citizens in the Right to Equal Access to
Public Accommodations .............................. 35
II. The Criminal Statute Applied to Convict Peti
tioners Gave No Fair and Effective Warning
That Their Actions Were Prohibited: Peti
tioners’ Conduct Violated No Standard Re
quired by the Plain Language of the Law;
Thereby Their Conviction Offends the Due
Process Clause of the Fourteenth Amendment
and Conflicts With Principles Announced by
This Court........................................................... 39
III. The Decision Below Conflicts With Decisions of
This Court Securing the Fourteenth Amend
ment Right to Freedom of Expression....... ...... 47
Conclusion ............ 51
V
PAGE
Holmes v. Atlanta, 350' U. S. 879 ............................. ...... 12
Holmes v. Connecticut Trust & Safe Deposit Co., 92
Conn. 507, 103 Atl. 640 (1918) ............................... .. 29
Hudson County Water Co. v. McCarter, 209 U. S.
345 ................................................................... ........... 34
Klor’s Inc. v. Broadway-Hale Stores, 359 TJ. S. 207
(1959) ......................................................................... 31
Kovacs v. Cooper, 336 U. S. 77 ................................... 16
Kunz v. New York, 340 U. S. 290 ................................ 46
Lane v. Cotton, 1 Ld. Raym. 646, 1 Salk. 18, 12 Mod.
472, 485 ...................................................................... 32
Lanzetta v. New Jersey, 306 U. S. 451 ................. 41, 42, 44
Levitt & Sons, Inc. v. Division Against Discrimination,
31 N. J. 514, 158 A. 2d 177 (1960) ............................ 31
Lorain Journal Co. v. United States, 342 U. S. 143
(1951) ......................................................................... 31
Lovell v. Griffin, 303 U. S. 444 ....................................... 44
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) .... 35
Maddox v. Maddox, Admr., 52 Va. 804 (1954) ....... . 29
Mapp v. Ohio, 367 U. S. 643 .......................................... 17
Marsh v. Alabama, 326 U. S. 501 ........................28, 34,47
Martin v. Struthers, 319 U. S. 141.............. ..........16, 48, 49
Massachusetts Comm’n Against Discrimination v. Col-
angelo, 30 U. S. L. W. 2608 (Mass. 1962) ................. 31
Mayor, etc. of Baltimore v. Dawson, 350 U. S. 877 ..... 12
McBoyle v. United States, 283 U. S. 25 .....................43, 45
Miller v. Schoene, 276 U. S. 272 (1928) ..................... 32
Monroe v. Pape, 365 U. S. 167....................................... 13
Morgan v. Virginia, 328 U. S. 373 ...... ............ ............ 20
Muir v. Louisville Park Theatrical Assn., 347 U. S. 971,
vacating and remanding, 202 F. 2d 275 ..................... 13
VI
PAGE
NAACP v. Alabama, 357 U. S. 449 ...... ..................24, 42, 49
Nashville C. & St. L. Ry. v. Browning, 310 U. S. 362 .... 18
New Orleans City Park Improvement Assn. v. Detiege,
358 U. S. 5 4 ................................................................ 12
N. Y. State Comm’n Against Discrimination v. Pelham
Hall Apts. Inc., 10 Misc. 2d 334, 170 N. Y. S. 2d 750
(Snp. Ct. 1958)............................................................. 31
Nixon v. Condon, 286 U. S. 73 ................................... 26
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258
(8th Cir. 1945) ............................................................. 48
N.L.E.B. v. Babcock & Wilcox Co., 351 U. S. 105 (1955) 33
N.L.R.B. v. Fansteel Metal Corp., 306 U. S. 240 ......... 48
People v. Barisi, 193 Misc. 934 (1948) ........................ 49
Pierce v. United States, 314 U. S. 306 ........ 42
Poe v. Ullman, 367 U. S. 497 ....................................... 18
Pollock v. Williams, 322 U. S. 4 ................................... 23
Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925) 30
Public Utilities Commission v. Poliak, 343 U. S.
451...................................... ........................................ 17, 26
Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) 32
Railway Mail Ass’n v. Corsi, 326 U. S. 88..................... 27
In Re Ranney’s Estate, 161 Misc. 626, 292 N.. Y. S. 476
(Surr. Ct. 1936) ......................................................... 29
Republic Aviation Corp. v. N.L.R.B., 324 U. S. 793
(1945) ................ 28,33,47-48
Saia v. New York, 334 U. S. 558 ................................... 46
St. Louis Poster Advertising Co. v. St, Louis, 249 U. S.
269 (1919) ....................... 33
Schenck v. United States, 249 U. S. 47 ......................... 50
Schmidinger v. Chicago, 226 U. S. 578 ............................ 33
V II
PAGE
Screws v. United States, 325 U. S. 91.............................. 13
Semler v. Oregon State Board of Dental Examiners,
294 U. S. 608 (1935) .................................................. 33
Shelley v. Kraemer, 334 U. S. 1 ..............12,14, 28, 30, 33, 35
Smith v. California, 361 U. S. 147............................. ...... 46
State Athletic Comm’n v. Dorsey, 359 U. S. 533 .......... 13
State Comm’n Against Discrimination v. Pelham Hall
Apartments, 10 Misc. 2d 334,170 N. Y. S. 2d 750 (Snp.
Ct. 1958) ...................................................................... 31
State of Maryland v. Williams, 44 Lab. Bel. Bef. Man.
2357 (1959) .................................................................. 49
State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295
(1958)......................................................................... 21, 40
State v. Johnson, 229 N. C. 701, 51 S. E. 2d 186 (1949) 21
Stanb v. Baxley, 355 U. S. 313...................................... 42
Steele v. Louisville and Nashville B.R, Co., 323 U. S.
192.................................................................. 26
Stromberg v. Calif., 283 U. S. 359 ................................44, 49
Taylor v. Louisiana, 370 U. S. 154...................... ....... . 13
Terry v. Adams, 345 U. S. 461 ....................................... 35
Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917) 33
Thompson v. City of Louisville, 362 U. S. 199............. 41
Thornhill v. Alabama, 310 U. S. 88................ ............... 49
Truax v. Corrigan, 257 U. S. 312 ...... .................... ...... 35
Turner v. Memphis, 369 U. S. 350 ....... .... ....................... 13
United States v. Addyston Pipe & Steel Co., 85 Fed. 271
(6th Cir. 1898) aff’d 175 U. S. 211 (1899) ............... . 30
United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961) .... 33
United States v. Cardiff, 344 U. S. 174 .......... ...........42, 43
United States v. Colgate, 250 U. S. 300 (1919) ............ . 31
United States v. Hall, 26 Fed. Cas. 79 ...... .............. . 36
United States v. L. Cohen Grocery Co., 255 U. S. 81 ....43, 44
V l l l
PAGE
U. S. v. Parke, Davis & Co., 362 U. S. 29 (1960) .......... 31
United States v. Weitzel, 246 U. S. 533 .....................43, 44
United States v. Wiltberger, 18 U. S. (5 Wheat.) 76 .... 43
United Steelworkers v. N.L.R.B., 243 F. 2d 593 (D. C.
Cir., 1956) (Reversed on other grounds), 357 U. S. 357 48
Watehtower Bible and Tract Soc. v. Metropolitan Life
Ins. Co., 297 N. T. 339, 79 N, E. 2d 433 (1948) ......... 16
Western Turf Assn. v. Greenberg, 204 U. S. 359 ......... 27
Winterland v. Winterland, 389 111. 384, 59 N. E. 2d
661 (1945) .............................. ...................................... 29
Wolf v. Colorado, 338 U. S. 25 ....................................... 17
F edekal S tatutes
Civil Rights Act of 1866, 14 Stat. 27 ............................ 16
Civil Rights Act of 1875 .............................................. 37
Civil Rights Act of 1875, 18 Stat. 335 ......................... 16
Clayton Act, 15 U. S. C. §12, et seq.............................. 30
Miller-Tydings Act amendment of §1 of the Sherman
Act, 15 U. S. C. § 1 ..................................................... 30
Robinson-Patman Act, 15 U. S. C. §13 et seq................ 30
Sherman Anti-Trust Act, 15 U. S. C. §1 et seq............. 30
United States Code, Title 28, §1257(3) ......................... 1
United States Code, Title 42, §1981 ............................ 15
United States Code, Title 42, §1982 ............................ 15
S tate S tatutes
Ark. Code Sec. 71-1803 .................................................. 45
Cal. Civil Code, §51 (Supp. 1961) ................................ 31
Cal. Civ. Code, sections 51-52 (Supp. 1961) ...... .......... 31
IX
PAGE
Cal. Health & Safety Code (See. 35740) .............. ...... 31
Code of Ala., Title 14, Sec. 426 ................................... 45
Code of Virginia, 1960 Replacement Volume, Sec. 18.1-
173 ............................................................................... 45
Colo. Rev. Stat. Ann. sections 25—1—1 (1953).............. 31
Colo. Rev. Stat. Ann. sections 69-7-1 (Supp. 1960) ...... 31
Conn. Hen. Stat. Rev. §53-35 (Supp. 1960) ................. 31
Conn. Gen. Stat. Rev. sec. 53-35 (Supp. 1961) .............. 31
Conn. Gen. Stat. Rev. sections 53—35-36 ................ 31
Conn. Stat. Rev. §53-35-35 .............................................. 31
Conn. Gen. Stat. (1958 Rev.) sec. 53-103 ..................... 45
Constitution of North Carolina, Art. XIV, sec. 8
(1868) ......................................................................... 21
D. C. Code, sec. 22-3102 (Supp. VII, 1956) ................. 45
D. C. Code Ann. sections 47—2901-04 (Supp. 1960) .... 31
Florida Code, sec. 821.01 ........................... ................... 45
Hawaii Rev. Code, sec. 312-1 ....................................... 45
Illinois Code, sec. 38-565 ........... 45
Indiana Code, sec. 10-4506 ........................................... 45
Indiana Stat., secs. 10-901, 10-902 (Supp. 1962) .......... 31
Iowa Code Ann. sections 735.1-02 (1950) ..................... 31
Kansas Gen. Stat. Ann. sections 21-2424 (1949) .......... 31
Laws of Alaska Ann. 1958 (compiled), Cum. Supp.
Vol. Ill, sec. 65-5-112................ ................................. 45
Mass. Code Ann. c. 266, sec. 120 ................................ 45
Mass. G. L. c. 151B, §§1, 4, 6 (Supp. 1961) ................. 31
Mass. G. L. (Ter. Ed.) c. 272, sections 92A, 98 (1956),
c. 151B, sections 1-10.................................................. 31
Mich. Stat. Ann. 1954, Vol. 25, Sec. 28.820(1) ............ 45
Mich. Stat. Ann. §28-343 (Supp. 1959)............................ 31
X
PAGE
Minn. Stat. Ann. section 327.09 (1947) ........................ 31
Minn. Stat. Ann., 1947, Vol. 40, sec. 621.57 ................. 45
Minn. Stat. Ann. §§363.01-.13, as amended by L. 1961,
c. 428 to become effective 12/31/62 ......................... 31
Mississippi Code, sec. 2411 ........................................... 45
Montana Rev. Codes Ann. section 64-211 (Supp. 1961) 31
Neb. Rev. Stat. sections 20-101, 102 (1943) ................. 31
Nevada Code, sec. 207.200 ............................................ 45
N. H. Rev. Stat. Ann. §§354.1-4, as amended by L. 1961,
c. 219 ........................................................................... 31
N. C. Gen. Stat., sec. 14-126........................................... 40
N. C. Gen. Stats., sec. 14-134 ................................2, 4, 39,40
N. C. Gen. Stat. sec. 14-234 ........................................... 40
N. C. G. S. 14-181............................................................. 21
N. C. G. S. 51-3 ............................................................. 21
N. C. G. S. §55-79 ......................................................... 25
North Carolina General Statutes, sec. 55-140 .............. 25
N. C. G. S. 58-267 ......................................................... 21
G. S. 60-94 to 9 7 ............................................................. 20
N. C. G. S. 60-135 to 137 .............................................. 20
N. C. G. S. 60-139 ......................................................... 21
N. C. G. S. 62-44 ............................................................ 20
N. C. G. S. 62-127.71 ..................................................... 20
N. C. G. S. 65-37 ............................................................ 19
N. C. G. S. 72-46 ..... 21
N. C. G. S. 90-212 ...... 20
N. C. G. S. 95-48 ............................................... 21
N. C. G. S. §105-62 ..................................................... 25
N. C. G. S. §105-82 ........................................................ 25
N. C. G. S. §105-98 ..................................................... 25
N. C. G. S. §105-164.4-6 ........... 25
N. C. G. S. 105-323 .............. 19
N. C. G. S. 116-109.......................... 19
PAGE
xi
N. C. G. S. 116-120............................................... 19
N. C. G. S. 116-124..................................................... 19
N. C. G. S. 116-138 to 142.............................................. 19
N. C. Gr. S. 122-3-6 ............................................... 19
N. C. Gr. S. 127-6............................................................. 19
N. C. Gr. S. 134-79 to 84 .................................................. 19
N. C. G-. S. 134-84.1 to 84.9 ....................... 19
N. C. G. S. 148-43 ......................................................... 19
N. C. Gen. Laws, Cli. 130 (1957) ................ 25
N. D. Cent. Code, section 12-22-30 (Snpp. 1961) ... ......... 31
N. J. Stat. Ann. sections 10:1—2-7, section 18:25—5
(Snpp. 1960) .............................................................. 31
N. J. Stat. Ann. sec. 18:25-4 (Snpp. 1961) ................... 31
N. M. Stat. Ann. sections 49—8—1-6 (Supp. 1961) ........ 31
1ST. Y. Civil Eights Law, section 40-41 (1948), Execu
tive Law, sections 292(9), 296(2) (Snpp. 1962) ...... 31
N. Y. Executive Law, §§290-99 as amended by L. 1961,
c. 414 ......... 31
Ohio Code, sec. 2909.21 .............................................. 45
Ohio Eev. Code, sec. 4112.02(G) (Supp. 1961) .......... 32
Oregon Code, sec. 164.460 ........................ ..... ................ 45
Ore. Eev. Stat. sections 30.670-680, as amended by Sen
ate Bill 75 of the 1961 Oregon Legislature .............. 32
Ore. Eev. Stat. sec. 659.033 (1959) ................................ 31
Pa. Stat. Ann. Tit. 18, section 4654, as amended by
Act No. 19 of the 1961 Session of Pa. Gen. Assembly 32
Pa. Stat. Ann. Titl. 43, §§951-63, as amended by Acts
1961, No. 19 ............................................... 31
E. I. Gen. Laws Ann. sections 11-24-1 to 11-24-1-6
(1956) ......... 32
Vermont Stat. Ann. tit. 13, Sections 1451-52 (1958) .... 32
XU
PAGE
Wash. Eev. Code §49.60.030 (1957) ................................ 31
Wash. Eev. Code, Section 49.60.040 (1957) ................. 31
Wash. Eev. Code, Sections 49.60.040, 49.60.215 (1962) 32
Wis. Stat. Ann. Section 942.04 (1958) as amended
(Supp. 1962)................................................................ 32
Wyoming Code, Sec. 6-226 .............................................. 45
Wyoming Stat., Sections 6-83.1, 6-83.2 (Supp. 1961) .... 32
City Ordinances
Burlington Code, Sec. 8-1 ....................... 20
Charlotte City Code, Article I, Sec. 5 .......................... 20
Charlotte City Code, Ch. 7, Sec. 7-9, 7-56....................... 20
Lumberton Code, Sec. 7-19 .......................................... 20
Winston-Salem Code, Sec. 6-42............................... 20
E nglish S tatutes
Statute of Labourers, 25 Ed. Ill, Stat. I (1350) ..... 32
(1464), 4 Ed. IV., c. 7 .............................................. 32
(1433), 11 H. VI, c. 1 2 ....................................... 32
(1357), 31 Ed. Ill, c. 10............................................... 32
(1360), 35 Ed. I l l ......................................................... 32
Other A uthorities
Abernathy, Expansion of the State Action Concept
Under the Fourteenth Amendment, 43 Cornell L Q
375 .............................................................................. 38
Adler, Business Jurisprudence, 28 Harv. L. Eev 135
(1914) ......................................................................... 32
a n
PAGE
A. L. I., Restatement of the Law of Property, Div. 4,
Social Restrictions Imposed Upon the Creation of
Property Interests (1944), p. 2121.............. ......... 29,30
A. L. I., Restatement of Torts, §867 (1939) ............... 17
Ballentine, “Law Dictionary” 436 (2d Ed. 1948) ........ 45
Beale, The Law of Innkeepers and Hotels (1906) ...... 32
“Black’s Law Dictionary” (4th Ed. 1951) 625 ............. 45
4 Blackstone’s Commentaries, Ch. 13, sec. 5(6) Wen
dell’s Ed. 1850 ..................................... ............. u
Blodgett, Comparative Economic Systems 24 (1944) .... 28
Browder, Illegal Conditions and Limitations: Miscel
laneous Provisions, 1 Okla. L. Rev. 237 (1948) ...... 30
Cong. Globe, 41st Cong. 2d Sess. p. 3611 (1870) .......... 37
Cong. Globe, 42d Congress, 1st Sess., p. 459 .............. 37
Cong. Globe, 42d Congress, 1st Sess., p. 483 (1871) .... 36
Cong. Globe, 42d Cong., 2d Sess., 383 ....................... . 17
Appendix to the Cong. Globe, 42d Congress, 1st Sess.
p. 8 5 ............................................................. 37
Cong. Rec., 43d Cong., 1st Sess. 412 (1874) ................. 37
County of Durham Sanitary Code ......... ................... 25
Equal Protection of the Laws Concerning Medical
Care in ..North Carolina, Subcommittee on Medical
Care of the North Carolina Advisory Committee to
the United States Commission on Civil Rights (un-
dated) ......................................-.........-.... -__ _____ 19,20
Gray, Restraints on the Alienation of Property 2d ed
1895, §259 ...................................................... __........ ' 30
Gray, The Rule Against Perpetuities, §201, 4th ed.,
Hale, Force and the State: A Comparison of “Politi
cal” and “Economic” Compulsion, 35 Colum. L Rev
149 (1935) ........................ .......... _____ 38
XIV
PAGE
Konvitz & Leskes, A Century of Civil Rights, 150
(1961) ...................................................................... 27,38
Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638
(1938) ......................................................................... 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) .. 32
North Carolina Advisory Committee Report 18.......... 21
North Carolina Advisory Committee to the United
States Commission on Civil Rights, Statutes and
Ordinances Requiring Segregation by Race, 23
(March 9, 1962) ........................................................ lg? 21
Poliak, Racial Discrimination and Judicial Integrity:
A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1
(1959)........ 38
6 Powell, Real Property, 1J851, Restatement of Prop
erty, §424 (1944) ......................................................... 29
Rankin, The Parke, Davis Case, 1961 Antitrust Law
Symposium, New York State Bar Association Sec
tion on Antitrust Law 63 (1961) ................................ 31
State Board of Health Laws, Rules and Regulations .. 25
United States Commission on Civil Rights, “The Fifty
States Report” 477 (1961) ......................................... 19
Woodward, The Strange Career of Jim Crow 47
(1955) ........................................................................22,23
I n t h e
& u p r m ? ( t a r t n t t l |? 'MixlUb J ita tT is
October Term, 1962
No. 11
J ohn Thomas A vent, el al.,
—v.—
Petitioners,
N orth Carolina.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF NORTH CAROLINA
BRIEF FOR PETITIONERS
Opinion Below
The opinion of the Supreme Court of North Carolina
(R. 73) is reported at 253 N. C. 580, 118 S. E. 2d 47 (1961).
Jurisdiction
The judgment of the Supreme Court of North Carolina
was entered January 20, 1961 (R. 90). On April 4, 1961,
time for filing a petition for writ of certiorari was extended
by the Chief Justice to and including May 4, 1961 (R. 91).
The petition was filed on that date. June 25, 1962, the peti
tion for writ of certiorari was granted (R. 92). Jurisdiction
of this Court is invoked pursuant to Title 28 United States
Code Section 1257(3), petitioners having asserted below
2
and claiming here, denial of rights, privileges, and immuni
ties secured by the Fourteenth Amendment to the Consti
tution 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 North Carolina General Stat
utes, §14-134:
Trespass on land after being forbidden. If any person
after being forbidden to do so, shall go or enter upon
the lands of another, without a license therefor, he
shall be guilty of a misdemeanor, and on conviction,
shall be fined not exceeding fifty dollars or imprisoned
not more than thirty days.
Questions Presented
Petitioners have been arrested, convicted, and sentenced
to prison for refusal to obey an order to leave the lunch
counter in a store open to the public, including Negroes.
This order was given to enforce a custom of the community,
generated by a massive body of state segregation law. The
premises are extensively licensed and regulated by the
State of North Carolina and the City of Durham. North
Carolina has failed to accord Negroes the right of equal
access to public accommodations.
I.
A. May North Carolina, compatibly with the Fourteenth
Amendment, make petitioners the target of a prosecution
under its trespass laws when the articulated rationale of
3
the prosecution is, according to North Carolina’s highest
court, to enforce “the clear legal right of racial discrimina
tion” of the S. H. Kress Corporation!
B. Are not these criminal trespass prosecutions, in any
event, incompatible with the Fourteenth Amendment be
cause they constitute purposeful state enforcement of a
custom of racial discrimination—a custom which is itself
the carefully nurtured fruit of decades of segregation re
quired by state law!
C. Is not the degree of supervision and control which
the State of North Carolina and the City of Durham ex
ercise over the S. H. Kress lunch counter business so ex
tensive a form of state involvement that, given the circum
stances of A and B, supra, North Carolina has failed in
its obligation to afford equal protection of the laws!
D. In addition to considerations set forth above, is not
the property right which S. H. Kress and Co. has asserted
—the right to discriminate racially in a single portion of a
store open to the general public—so inconsequential to the
main core of its proprietary interest, that the State may
not compatibly with the Fourteenth Amendment, enforce
that right by its criminal laws!
E. In view of the fact that North Carolina denies pro
tection to Negroes against racial discrimination in public
accommodations, do not the circumstances set forth above
establish a denial of equal protection of the laws!
II.
The trespass statute under which petitioners were con
victed forbids only entry without license. Petitioners were
invited to do business in the store and were ordered to
4
leave only because they sought nonsegregated service at
the lunch counter, the only racially segregated counter in
the store. The North Carolina Supreme Court has for the
first time unambiguously held that the statute under which
petitioners were convicted makes criminal refusal to leave
after an invitation to enter. Does not this conviction, there
fore, violate the due process clause of the Fourteenth
Amendment in that the statute upon which it rests gave
petitioners no fair and effective warning that their actions
were prohibited?
III.
Is not North Carolina denying petitioners freedom of
speech secured by the Fourteenth Amendment by using
its criminal trespass laws as a device to stop petitioners
from urging S. H. Kress and Company to abandon its
discrimination practices ?
Statem ent
Petitioners, five Negro students from North Carolina
College and two white Duke University students, were
arrested for a “sit-in” demonstration at the S. II. Kress
Department store lunch counter in Durham, North Carolina
(K. 20-21). They were charged with trespass under North
Carolina General Statutes, Chapter 14, Section 134, which
prohibits going or entering upon land after being forbidden
to do so (R. 1-10).
On May 6, 1960, petitioners, some of whom in the past
had been regular customers, bought small stationery items
at counters on the first floor of the Kress Department Store
(R. 35, 39, 41-43, 46, 47, 48). Negroes and whites were
served without discrimination in all fifty departments ex-
5
cept at the lunch counter portion where patrons sit (R. 22-
23). There Negroes were barred, although a “stand-up”
section serviced whites and Negroes together (R. 22-23).
After making their purchases, petitioners proceeded to the
basement through the normal passageway bordered by an
iron railing, and took seats at the lunch counter (E. 37, 40,
42, 44, 46, 47, 48). No signs at any entranceway or counter
barred or limited Negro patronage (R. 22-23). A sign in
the basement luncheonette limited it to “Invited Guests
and Employees Only” (R. 23). No further writing eluci
dated its meaning; but the manager testified that while
invitations were not sent out, white persons automatically
were considered guests, but Negroes and whites accom
panied by them were not (R. 22).
The racial distinction was based solely on the custom
of the community: The manager testified, “It is the policy
of our store to wait on customers dependent upon the
custom of the community . . . It is not the custom of the
community to serve Negroes in the basement luncheonette,
and that is why we put up the signs ‘Invited Guests and
Employees Only’” (R. 23). He further stated that if
Negroes wanted service, they might obtain it at the back
of the store or at a stand-up counter upstairs (R. 22).
As petitioners took seats, the manager approached and
asked them to leave (R. 21). One petitioner, Joan Nelson
Trumpower, a white student, had already received and
paid for an order of food (R. 42). When she attempted to
share it with Negroes on either side of her, the manager
asked her to leave (R. 23, 42). He never identified himself,
however, as the manager or as a person with authority
to ask them to leave (R. 42).
While petitioners remained seated awaiting service, the
manager called the police to enforce his demand (R. 21).
6
An officer promptly arrived and asked them to leave (E.
21). Upon refusal the officer arrested them for trespass
(R. 21). At all times petitioners were orderly and, when
arrested, offered no resistance (R. 22, 26).
Petitioners were members of an informal student group
with a program of protesting segregation (R. 36, 41, 43,
44). They had organized and led picketing at the store to
protest its policy of fully accepting the business of Negro
patrons while refusing them service at the sit-down lunch
counter (R. 36, 40-41, 44-45). The picketing occurred at
various times from February 1960 until the arrest on
May 6, 1960 (R. 44). Some of the petitioners had requested
and had been denied service on previous occasions at the
lunch counter, and on the day of the arrests, they con
tinued to request service in hope that their protests would
be successful (R. 37, 40-41, 49). On the previous day peti
tioners attended a meeting to discuss the sit-in demonstra
tions, where it was agreed that they would trade in the
store as customers as in the past, and then seek service
on the same equal basis at the lunch counter (R. 49).
They were indicted for trespass in the Superior Court
of Durham County, the indictments stating that each peti
tioner
“with force and arms . . . did unlawfully, willfully,
and intentionally, after being forbidden to do so, enter
upon the land and tenement of S. H. Kress and Co.,
store . . . said S. IT. Kress and Co., owner being then
and there in actual and peaceable possession of said
premises under the control of its manager and agent,
W. K. Boger, who had, as agent and manager, the
authority to exercise his control over said premises,
and said defendant after being ordered by said W. K.
Boger, agent and manager of said owner, S. H. Kress
7
and Co., to leave that part to the said store reserved
for employees and invited guests, willfully and unlaw
fully refused to do so knowing or having reason to
know that . . . [petitioner] had no license therefor,
against the form of the statute in such case made and
provided and against the peace and dignity of the
state.”
Each indictment identified each petitioner as “CM” (colored
male), “WM” (white male), “CF” (colored female), or
“WF” (white female) (E. 2, 3, 5, 6, 7, 9, 10). Petitioners
made motions to quash the indictments raising defenses
under the Fourteenth Amendment to the United States
Constitution. These were denied (E. 11-15). To the in
dictments they entered pleas of not guilty (E. 15).
Various federal constitutional defenses were made
throughout and at the close of trial, but were overruled
(E. 12, 15, 26-34, 50, 66-67). Petitioners were found guilty
(E. 15-16). Petitioners Coleman, Phillips, and CalLis Napo-
lis Brown were sentenced to 30 days imprisonment in the
common jail of Durham County to work under the super
vision of the State Prison Department (E. 17-18). Peti
tioner Streeter was sentenced similarly to 20 days (E. 19).
Petitioner A vent was sentenced to 15 days in the Durham
County jail (E. 16). Prayer for judgment was continued
in the cases of Shirley Mae Brown and Joan Harris Nelson
Trumpower (E. 16, 17).
Error was assigned again raising and preserving federal
constitutional defenses (E. 67-69), and the case was heard
by the Supreme Court of North Carolina, which affirmed
the convictions on January 20, 1961 (Clerk’s Certificate
following Court’s Opinion).
Summary of Argument
I.
The court below held that it was enforcing “the clear legal
right of racial discrimination of the owner.” But, while in
some circumstances there may be a personal privilege to
make racial distinctions, its limit is reached when the
person exercising it turns to the state for assistance. Judi
cial and police action are no less forbidden State action
when invoked to enforce discrimination initiated by an indi
vidual. Any suggestion that private rights, in the sense
that they invoke considerations of privacy, are involved is
farfetched. Kress’s has been open to the public in general.
The management did not assert the corporation’s own pref
erence for a segregation policy, but rather the custom of
the community. While considerations of privacy may be
meaningful in determining the reach of some constitutional
liberties, in this case the right to freedom from State im
posed racial discrimination is not in competition with any
interest the State might have in protecting privacy.
At the very least, however, the State may not enforce
racial discrimination which expresses deep-rooted public
policy. The record here conclusively shows that this is what
happened in this case. Such customs are a form of State
action. But beyond this the segregation customs in this
case were generated by a host of State segregation laws.
The North Carolina Advisory Committee to the United
States Commission on Civil Bights has concluded that, “so
long as these compulsory statutes are on the books, some
private citizens are more than likely to take it upon them
selves to try to enforce segregation.” Scholarship estab
lishes the crucial role which government, politics, and law
have played in creating segregation customs.
9
But the State-enforced, State-created community custom
of segregation in this ease is even more invidious because
it has taken place in an establishment in which the State
has been deeply involved by requiring extensive licensing
and regulation. State involvement in such an enterprise
precludes State enforcement of segregation therein by
means of arrests and prosecutions for trespass.
The holding below that the State merely was in a neutral
fashion enforcing an inalienable, sacred, property right is
clearly incorrect. States can, and have, constitutionally
forbidden property owners to discriminate on the basis of
race in public accommodations. North Carolina has not
inhibited itself from requiring racial segregation on private
property. The more an owner for his advantage opens his
property for use by the public in general, the more do his
rights become circumscribed by the constitutional and stat
utory rights of those who use it.
Property is a bundle of rights and privileges granted by
the State. That portion of the rights which constitute
Kress’s property, which Kress asserts here, and which the
State has enforced is to control the conduct and association
of others. This type of property right historically has never-
been unrestrained throughout the whole range of efforts
to assert it. Restraints on that power are but a manifesta
tion of the fact that law regularly limits or shapes property
rights where they may have harmful public consequences.
Other characteristics of the asserted right to racially dis
criminate in this case are that no claim of privacy has been
intruded upon; that petitioners sought only to use the prem
ises for their intended function; that segregation was re
quired only in a single part of an establishment open to the
general public, to which petitioners were admitted and in
which they were invited to trade freely except at the lunch
counter in question. This separable sliver in the entire
10
complex of powers and privileges which constitutes Kress’s
property is hardly entitled to legal protection when it col
lides with the Equal Protection Clause of the Fourteenth
Amendment, whose purpose was an end of discrimination
against the Negro.
Moreover, the Civil Rights Cases assumed that the State
law provided “a right to enjoy equal accommodations and
privileges . .. one of the essential rights of the citizen which
no state can interfere with.” The failure to provide such
rights can deny the equal protection of the laws. One mem
ber of the Court which decided the Civil Rights Cases pre
viously had written that denial included omission to pro
tect as well as the omission to pass laws for protection.
Legislators concerned with the scope of the Fourteenth
Amendment expressed similar views. The Civil Rights
Cases were decided on the assumption that the States in
question protected those rights. It is doubtful that the
result would have been the same if then, as today in North
Carolina, the States actively interfered with the right of
equal access to public facilities. No State may abdicate its
responsibilities by ignoring them; and where a State by its
inaction has made itself a party to the refusal of service and
has placed its power and prestige behind discrimination,
convictions such as those obtained in this case must fall.
II.
The statute applied to convict petitioners was unreason
ably vague and thereby offends the due process clause of
the Fourteenth Amendment in that although the statute,
by terms, prohibits only the act of going on the land of
another after being forbidden to do so, the court below has
expansively construed the law to cover petitioners’ act of
remaining on the property after being directed to leave.
This strained construction of the plain words of the law
11
converts tlie common English word “enter” into a word of
art meaning “trespass” or “remain” and transforms the
statute from one which fairly warns against one act into a
law which fails to warn of conduct prohibited. The law is
invalid as its general terms do not represent a clear legis
lative determination to cover the specific conduct of peti
tioners, which is required where laws deter the exercise of
constitutional rights.
III.
The conviction violates petitioners’ right to freedom of
expression as secured by the due process clause of the
Fourteenth Amendment against state infringement. Peti
tioners’ action here, a sit-in, is a well recognized form of
protest and was entirely appropriate to the circumstances,
including the use to which the privately owned property in
volved had been dedicated by the owner. There were no
speeches, picket signs, handbills, or other forms of expres
sion which might possibly be inappropriate to the time and
place. There was merely a request to be permitted to pur
chase goods in the place provided for such purchases. The
expression was not in such circumstances or of such a
nature as to create a clear and present danger of any sub
stantive evil the State had a right to prevent. The arrests
improperly stifled a protest against racial discrimination.
12
A R G U M E N T
I.
North Carolina in Enforcing What Its Highest Court
Has Denominated a “Clear Legal Right of Racial Dis
crimination” Has Denied to Petitioners the Etpial Pro
tection of the Laws Secured by the Fourteenth Amend
ment.
A. Arrest, Conviction, and Sentence to Prison for Tres
pass for H aving Violated the S. H. K ress Co.’s R e
quirem ent o f Racial Segregation at Its Public Lunch
Counter D eny Petitioners the Equal Protection o f
the Laws Secured by the Fourteenth Am endm ent.
In affirming the conviction below the North Carolina Su
preme Court has twice said that it was merely enforcing
“the clear legal right of racial discrimination of the owner”
(R. 82, 83). One need turn no further than to Shelley v.
Kraemer, 334 U. S. 1, to see that it has been plain—if any
constitutional doctrine can be called plain—that there is
no “clear legal right of racial discrimination.” To the con
trary, while in some circumstances there may be a personal
privilege of making racial distinctions, the limit of that
privilege certainly is reached when the perspn exercising
it turns to state instrumentalities for assistance. Racial
discrimination is constitutionally inadmissible when “the
State in any of its manifestations has been found to have
become involved in it.” Burton v. Wilmington Parking Au
thority, 365 U. S. 715, 722.1
1 Segregation has been forbidden in schools, Brown v. Board of
Education, 347 U. S. 483; Cooper v. Aaron, 358 U. S. 1; parks and
recreational facilities, Mayor, etc. of Baltimore v. Dawson, 350 TJ. S.
877; Holmes v. Atlanta, 350 U. S. 879; New Orleans City Park
Improvement Ass’n v. Detiege, 358 U. S. 54; and airports, Turner
13
“ [I]t has never been suggested that state court action
is immunized from the operation of [the Fourteenth Amend
ment] . . . simply because the act is that of the judicial
branch of the state government.” Shelley v. Kraemer, 334
U. S. at 18. See also Barrows v. Jackson, 346 U.S. 249;
N.A.A.C.P. v. Alabama, 357 U. S. 499, 463. Police action
which segregates denies Fourteenth Amendment rights.
Taylor v. Louisiana, 370 U. S. 154; Baldwin v. Morgan, 287
F. 2d 750 (5th Cir. 1961); Boman v. Birmingham Transit
Co., 280 F. 2d 531, 533 n. 1 (5th Cir. 1960); see also Monroe
v. Pape, 365 U. S. 167; Screws v. United States, 325 U. S.
91. “Nor is the Amendment ineffective simply because the
particular pattern of discrimination, which the State has
enforced, was defined initially by the terms of a prior agree
ment. State action, as that phrase is understood for the
purposes of the Fourteenth Amendment, refers to exertions
v. Memphis, 369 TJ. S. 350; Henry v. Greenville Airport Comm’n,
284 F. 2d 631 (4th Cir. 1960).
Segregation requirements have been prohibited in privately
sponsored athletie contests, State Athletic Comm’n v. Dorsey, 359
U. S. 533; and in connection with privately owned transportation
facilities, Gayle v. Browder, 352 U. S. 903; Evers v. Dwyer, 358
XT. S. 202; Bailey v. Patterson, 369 U. S. 31; Taylor v. Louisiana,
370 U. S. 154; Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961);
Boman v. Birmingham Transit Co., 280 IX 2d 531 (5th Cir. 1960).
A State law construed to authorize discrimination by privately
owned restaurants was thought to be “clearly violative of the
Fourteenth Amendment” by Mr. Justice Stewart, concurring in
Burton v. Wilmington Parking Authority, 365 TJ. S. 715, 727.
Three dissenting Justices agreed this would follow if that were a
proper construction of the law, 365 XT. S. 715, 727, 729. State laws
requiring segregation in the use and occupancy of privately owned
property were invalidated in Buchanan v. Warley, 245 TJ. S. 60,
and Harmon v. Tyler, 273 XT. S. 668.
Among the numerous cases forbidding segregation in publicly
owned but privately leased facilities, see Burton v. Wilmington
Parking Authority, 365 XJ. S. 715; Turner v. Memphis, 369 TJ. S.
350; Muir v. Louisville Park Theatrical Ass’n, 347 XJ. S. 971, vacat
ing and remanding, 202 F. 2d 275; Derrington v. Plummer, 240
F. 2d 922 (5th Cir. 1956), cert. den. sub nom. Casey v. Plummer,
353 TJ. S. 924.
14
of state power in all forms.” Shelley v. Kraemer, 334 U. S.
at 20. See also Burton v. Wilmington Parking Authority,
365 U. S. 715, 722.
In the Civil Rights Cases, 109 U. S. 3, 17, this Court held
outside the Amendment’s scope individual action “unsup
ported by State authority in the shape of laws, customs, or
judicial or executive proceedings” or “not sanctioned in
some way the State,” 109 U. S. at 17. The opinion re
ferred to “State action of every kind” inconsistent with
equal protection of the laws, id. at 1 1 ; to “the operation of
State laws, and the action of State officers executive or
judicial,” id. at 11. Repeatedly, the opinion held within the
scope of the Fourteenth Amendment “State laws or State
proceedings,” id. at 11; “some State action,” id. at 13; “acts
done under State authority,” id. at 13; “State action of
some kind,” id. at 13; and the opinion pointed out that
States are forbidden to legislate or act in a particular
way,” id. at 15. The Fourteenth Amendment is “addressed
to counteract and afford relief against State regulations or
proceedings,” id. at 23.
Racial discriminations “are by their very nature odious
to a free people whose institutions are founded upon the
doctrine of equality.” Hirabayashi v. United States, 320
U. S. 81, 100. Certainly in this case the State is more
deeply implicated in enforcing that racism so odious to our
Constitution than it was m Shelley v. Kraemer. For here
the State has not merely held its courts open to suitors who
would seek their aid in enforcing discrimination, but has
taken an active initiative in prosecuting petitioners crimi
nally and sentencing them to prison terms.
Moreover, petitioners here assert not merely the general
ized constitutional right found in the equal protection clause
of the Fourteenth Amendment to be free from racial dis-
15
crimination. 42 U. S. C. 1981 provides: “ ‘All persons
within the jurisdiction of the United States shall have the
same right in every State and Territory to make and en
force contracts, * * # and to the full and equal benefit of all
laws and proceedings for the security of persons and prop
erty as is enjoyed by white citizens * * * . ” ’ 42 U. S. C. 1982
provides: “ ‘All citizens of the United States shall have
the same right, in every State and Territory, as is enjoyed
by white citizens thereof to * * * purchase * * * real and
personal property.’ ” Referring to similar statutory provi
sions involving jury service, this Court has declared: “ ‘For
us the majestic generalities of the Fourteenth Amendment
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.
The opinion below stresses that Kress’s is “a privately
owned corporation” and “in the conduct of its store in
Durham is acting in a purely private capacity” (R. 77).
But “private” is a word of several possible meanings. To
the extent that concepts of privacy play a part in defining
rights here at issue, Kress’s privacy should be seen as it
really is. 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 enterprise
open to the general public for profit, because somehow the
inviolability of a private home may be impaired, is with
out merit. This prosecution is not asserted to be in aid of
any'interest in privacy of the property owner, for it has
opened the store to the public in general. Moreover, the
proprietor has not expressed its preference, rather it has
sought state aid to enforce the custom of the community.
Were a state to enforce a trespass law to protect a real
interest in some private aspect of property a different
16
result might be required because of the importance of the
right of privacy which finds firm support in the decisions
of this Court. Examples where such countervailing con
siderations have applied are cases such as Breard v. Alex
andria, 341 U. S. 622, 626, 644, and Kovacs v. Cooper, 336
U. S. 77. On the other hand a case such as Martin v.
Struthers, 319 IT. S. 141, is an instance where even con
siderations of privacy did not overcome a competing con
stitutional right like freedom of religion.2 In this case the
right to freedom from state imposed racial discrimination
does not compete with any interests the state may have in
protecting privacy.3
2 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.
3 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 Rights Act of 1866, 14 Stat. 27, which served as the
precursor to the Civil Rights 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
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- 'v
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 a,nd 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
17
B. Certainly, at Least, the State May Not by Its Police
and Courts Enforce Such Segregation When It Stems
From a Community Custom of Segregation Which
Has Been Generated by State Law.
Certainly, at the very least, the well established rule—
that states may not enforce racial discrimination—dis
cussed in part I, applies where the racial segregation is
not a matter of private choice, but expresses deep-rooted
public policy.
That segregation was a “custom of the community” (E.
22) is stated expressly in the record, although one hardly
need turn there to learn a fact concerning conditions in
society so well known. Child Labor Tax Case, 259 U. S. 20,
27 (Chief Justice Taft). Kress’s manager, however, made
clear that the store’s segregation policy was merely that of
the community.
It is the policy of our store to wait on customers de
pendent upon the customs of the community. . . .W e
have a stand-up counter on the first floor, and we serve
Negroes and whites at that stand-up counter. We also
serve white people who are accompanied by Negroes
at the stand-up counter. . . . Even if Negroes aecom-
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.” Cone. 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 Blaekstone’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., Restate
ment of Torts, §867 (1939). This Court has recently reiterated that
the due process clause protects 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 dissenting); Public Utilities Comm’n v. Pollalt
343 U. S. 451, 464, 468.
18
panied by white people were orderly at our luncheon
ette because of the policy of the community we would
not serve them, and that was our policy prior to May
16, 1960. . . . It is not the custom of the community
to serve Negroes in the basement luncheonette, and
that is why we put up the signs, “Invited Guests and
Employees Only” (E. 22-23).
The Civil Rights Cases speak of “customs having the
force of law,” 109 U. S. 3, 16, as a form of state action.4
Here, as in Garner v. Louisiana, 368 U. S. 157, “segregation
is basic to the structure of . . . [the state] as a community;
the custom that maintains it is at least powerful as any
law.” (Mr. Justice Douglas concurring, at 181).6
But this custom of North Carolina is not separate from
law. It has roots in and tills interstices of a complex net
work of state mandated segregation. The North Carolina
Advisory Committee to the United States Commission on
Civil Eights has concluded that “so long as these compul
sory statutes are on the books, some private citizens are
more than likely to take it upon themselves to try to en
force segregation.” 6
Most of this law was enacted about the turn of the
twentieth century.7 These state and city imposed require-
4 See also 109 U. S. at 21: “long custom, which had the force of
law. . . ”
5 This Court has recognized that “ ‘Deeply embedded traditional
ways of carrying out state policy . . . ’—or not carying it out—‘are
often tougher and truer law than the dead words of the written
tex t. Nashville C. & St. L. R. Co. v. Browning, 310 U S 362 369 ”
Poe v. Tillman, 367 U. S. 497, 502. ’
. 6 A discussion and presentation of this legislation may be found
in North Carolina Advisory Committee to the United States Com
mission on Civil Rights, Statutes and Ordinances Requiring Segre
gation by Race (March 9, 1962) (mimeographed) (hereafter
cited as North Carolina Advisory Committee).
7 North Carolina Advisory Committee 23.
19
ments govern not only activities furnished by the state but
privately-owned facilities as well. The subordinate role to
which the segregation laws relegate Negroes is well illus
trated by the national guard statute, N. C. Gen. Stat. §127-6:
“No organization of Colored Troops shall be permitted
where White troops are available, and while permitted to
be organized, colored troops shall be under command of
white officers.”
W7hile the state has repealed statutes requiring segrega
tion in the public schools, school segregation continues to
be enforced by other means.8 Mental institutions,9 orphan
ages,10 and schools for the blind and deaf,11 must be segre
gated as must prisons,12 and training schools.13
Separate tax books must be kept for white, Negro, Indian
and corporate taxpayers.14
State law requires racial distinctions where municipali
ties take possession of existing cemeteries.16 Some city
8 Under the North Carolina Pupil Assignment Law “without a
single exception, the boards have made initial assignment of white
pupils to previously white schools and Negro children to previously
Negro schools.” United States Commission on Civil Rights, The
Fifty States Report 477 (1961).
9 G. S. 122-3-6.
10 G. S. 116-138 to -142.
11 G. S. 116-109, -120, -124.
12 G. S. 148-43.
13 G. S. 134-79 to -84; G. S. 134-84.1 to -84.9. On the various forms
of segregation in health care, among patients as well as professional
personnel, in public as well as private facilities, see Equal Protec
tion of the Laws Concerning Medical Care in North Carolina, Sub
committee on Medical Care of the North Carolina Advisory Com
mittee to the United States Commission on Civil Rights (undated)
(mimeographed).
14 G. S. 105-323.
15 G. S. 65-37.
20
ordinances designate particular cemeteries for colored per
sons and specific burial grounds for white citizens ;16 others
note simply that places of interment are to be marked for
Negroes or for Caucasians.17 Separate funeral homes must
be maintained throughout the state.18
Municipalities also have enacted legislation requiring
segregation. For example, a Charlotte ordinance, Article I,
Section 5, Charlotte City Code, delineates the metes and
bounds of the area within which its Negro police have au
thority. See North Carolina Advisory Committee to the
United States Commission on Civil Eights, op. cit. supra,
at 3. The Director of the Department of Conservation and
Development, while not requiring segregation in state
parks, discourages Negroes from enjoying white facilities.
Id. at 8.
North Carolina has also undertaken extensively to regu
late so-called “private” relationships. There remains on
the books of North Carolina (although invalid in view of
decisions of this Court, Morgan v. Virginia, 328 U. S. 373;
Gayle v. Browder, 352 U. S. 903) a statute requiring racial
segregation in passenger trains and steam boats. G. S. GO-
94 to -97. The Utilities Commission is directed by G. S.
62-44 and G. S. 62-127.71 to require separate waiting rooms.
Street cars must by statute be boarded white from the
front and colored from the rear. G. S. 60-135 to -137. The
Corporation Commission has been upheld in requiring en
forced segregation on motor buses. Corporation Comm’n
v. Transportation Committee, 198 N. C. 317, 320, 151 S. E.
648, 649 (1930). In that opinion Judge Clarkson emphasized
16 Charlotte City Code, eh. 7, sec. 7-9, 7-56; Sec. 7-19 of the Lum-
berton Code; Sec. 8-1, Burlington Code.
17 Sec. 6-42, Winston-Salem Code; Sec. 7-9, Charlotte City Code.
18 G. S. 90-212.
21
that separation or segregation “has long been the settled
policy” of North Carolina. See G. S. 60-139; State v. John
son, 229 N. C. 701, 51 S. E. 2d 186 (1949).
Persons engaged in businesses employing more than two
males and females must segregate on the basis of race in
toilet facilities. G. S. 95-48. See G. S. 72-46 (1941). Per
sons operating restaurants and other food handling estab
lishments are required to obtain a permit from the State
Board of Health. G. S. 72-46. The State Board inspector’s
official form contains as one of the criteria on which res
taurants are graded the factor of whether toilet facilities
are “adequate for each sex and race.” North Carolina Ad
visory Committee Report 18.
Fraternal orders may not be authorized to do business in
North Carolina if white and colored persons are members
of the same lodge. G. S. 58-267.
Marriage is forbidden between persons of the Negro and
white races by the Constitution of North Carolina, Art.
XIV, §8 (1868); G. S. 14-181 and G. S. 51-3.
Various statutes and ordinances throughout North Caro
lina require segregation in taxicabs, carnivals, other places
of amusement, and restaurants. North Carolina Advisory
Committee Report 15, 17-20. Among these ordinances is
one of the City of Durham requiring that in public eating
places where persons of the white and colored races are
permitted to be served, there shall be private, separate
rooms for the accommodation of each race. Id. at 18.19
19 The state did not rely on the ordinance at trial, nor was it
adverted to on appeal. Heretofore, the North Carolina Supreme
Court has declined to notice municipal ordinances not introduced
into evidence at trial. See State v. Clyburn, 247 N. C. 455, 101
S.E. 2d 295 (1958).
22
C. Vann Woodward has written of the relative recency
of the segregation system in America:
Southerners and other Americans of middle age or
even older are contemporaries of Jim Crow. They
grew up along with the system. Unable to remember
a time when segregation was not the general rule
and practice, they have naturally assumed that things
have ‘always been that way.’ Or if not always, then
‘since slavery times,’ or ‘since The War,’ or ‘since
Reconstruction.’ Some even think of the system as
existing along with slavery. Few have any idea of the
relative recency of the Jim Crow laws, or any clear
notion of how, when, and why the system arose. Wood
ward, The Strange Career of Jim Crow, vii-viii (1955).
Even after the end of Reconstruction and during the
so-called period of “Redemption” beginning around 1877,
the rigid segregation system characteristic of later years
had not become the rule. The history of segregation makes
clear that during* the early years after Reconstruction
Negroes were unsegregated in many public eating estab
lishments in the South. Id. at 18-24. The Jim Crow or
segregation system became all-pervasive some years later
as a part of the aggressive racism of the 189Q’s and early
1900’s, including Jim Crow laws passed at that time, which
continued until an all-embracing segregation system had
become the rule. In this way law shaped custom. Id. at
ch. II.
Professor Woodward writes:
At any rate, the findings of the present investigation
tend to bear out the testimony of Negroes from various
parts of the South, as reported by the Swedish writer
G-unnar Myrdal, to the effect that ‘the Jim Crow stat
utes were effective means of tightening and freezing—
23
in many cases instigating—segregation and discrimina
tion.’ The evidence has indicated that under conditions
prevailing in the earlier part of the period reviewed
the Negro could and did do many things in the South
that in the latter part of the period, under different
conditions, he was prevented from doing. Id. at 90-91.
# # # # #
It has also been seen that their [Negroes] presence
on trains upon equal terms with white men was once
regarded as normal, acceptable, and unobjectionable.
Whether railways qualify as folkways or stateways,
black man and white man once rode them together and
without a partition between them. Later on the state-
ways apparently changed the folkways—or at any rate
the railways—for the partitions and Jim Crow cars
became universal. And the new seating arrangement
came to seem as normal, unchangeable, and inevitable
as the old ways. And so it was with the soda fountains,
eating places, bars, waiting rooms, street cars, and
circuses. Id. at 91-92.
Thus the system of segregation in places of public ac
commodations, has from the beginning been a product of
government, politics, and law.
This Court has recognized how law may work its effect
in ways other than requiring obedience to statutory text.
In Pollock v. Williams, 322 U. S. 4, the Court discharged
the petitioner on a writ of habeas corpus because a statu
tory presumption had induced a plea of guilty:
The State contends that we must exclude the prima
facie evidence provision from consideration because
in fact it played no part in producing this conviction.
Id. at 13.
# # * # *
We cannot doubt that the presumption provision had
a coercive effect in producing the plea of guilty. Id.
at 15.
And see—Engel v. Vitale, 370 U. S. 421, 431 (indirect co
ercive pressure upon religious minorities). As was said in
N.A.A.C.P. v. Alabama, 357 U. S. 449, 463, “The crucial
factor is the interplay of governmental and private action,
for it is only after the initial exertion of state power . . .
that private action takes hold.” 20
Therefore it hardly can be urged that the management
was acting privately, unsanctioned by the state. Apart from
state support of management’s decision to segregate, that
decision itself represented the policy of North Carolina
induced and nourished by its laws. As Mr. Justice Douglas
wrote in Garner v. Louisiana, 368 U. S. 157, 181, the pro
prietor’s “preference does not make the action ‘private,’
rather than ‘state,’ action. If it did, a minuscule of private
prejudice would convert state into private action. More
over, where the segregation policy is the policy of a state,
it matters not that the agency to enforce it is a private
enterprise.”
C. A F o r t io r i , the State May Not Arrest and Convict P eti
tioners for H aving Violated a Segregation Rule
W hich Stem s From a State Generated, Com m unity
Custom o f Segregation in Prem ises in W hich the
State Is D eeply Involved T hrough Its L icensing and
R egulatory Powers,
The nature of the State’s involvement—demonstrated by
extensive regulation and licensing—in the premises where
20 This Court has struck down state action which would enable
private individuals to seek reprisals against persons opposed to
racial discrimination, N.A.A.C.P. v. Alabama, 357 U. S. 449. A
fortiori, the link between state requirements of segregation and the
conduct it fosters—not merely permits—should be recognized.
25
petitioners were arrested for violating the state-generated
community custom shows even further the invalidity of the
judgment below. This discrimination has been enforced in
an area of public life with which the State is so intimately
involved that Kress’s lunch counter business is by law
required to be extensively licensed and regulated. The
very publicness of the enterprise is demonstrated not only
by the fact that Kress serves the general public, but by
the interest which the State has demonstrated in that ser
vice. In addition to the detailed regulation of business cor
porations (including foreign corporations)21 North Carolina
law requires various licenses,22 imposes taxes,23 and author
izes state and local health regulation24 of this type of
business. As Mr. Justice Douglas wrote in Garner v. Louisi
ana, 368 U. S. at 183-84:
A state may not require segregation o f. 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. (CA
5 Ala) 280 F2d 531, 535, a public utility “is doing some-
21 North Carolina General Statutes, §55-140.
22 A state license is required for the operation of a soda fountain
G. S. §55-79 or a chain store G. S. §105-98. A license is required for
all establishments selling prepared food G. S. §105-62. Separate
licenses are required to sell other items, such as tobacco products,
G. S. §105-85 or records and radios, G. S. §105-82.
23 Retail stores must collect sales and use taxes for the state to
keep their licenses to do business (G. S. §105-164.4-6).
^ State law establishes an overlapping pattern of health regula
tions for restaurants. See N. C. Gen. Laws, Ch. 130 (1957). Section
13 of this chapter authorizes each county to operate a health de
partment ; local boards of health can make rules and regulations
“not inconsistent with state law,” Sec. 17(b). Both the State Board
of Health and the Durham County Board of Health prescribe rules
applicable to food service establishments. See State Board of
Health Laws, Rules and Regulations; County of Durham Sanitary
Code, Sec. 1.
26
thing the state deems useful for the public necessity or
convenience.” It was this idea that the first Mr. Justice
Harlan, dissenting in Plessy v Ferguson, . . . ad
vanced. Though a common carrier is private enter
prise, “its work” he maintained is public. Id., 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 seg
regation 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 classification when it comes
to parks or other municipal facilities by reason of the
Equal Protection Clause of the Fourteenth Amend
ment.
In Public Utilities Comm’n v. Poliak, 343 U. S. 451,
this Court found sufficient governmental responsibility to
require 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
streetcar 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 Kan. 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.
27
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 IT. S. 715, 722.
D. No Essential Property of S. H. Kress and Co. Is H ere
at Issue; the Right to Make Racial Distinctions at a
Single Counter in a Store Open to the Public Does
Not Outweigh the High Purposes of the Fourteenth
Am endm ent.
The highest court of North Carolina has attempted to
differentiate this case from others which have refused to
sanction state enforcement of racial discrimination by as
serting that it was merely neutrally enforcing a “funda
mental, natural, inherent and inalienable” (R. 81) private
property right, allegedly “ ‘a sacred right, the protection of
which is one of the most important objects of government’ ”
(R. 81). Referring to the claimed right to exclude peti
tioners the court below held, “white people also have
constitutional rights as well as Negroes, which must be
protected, if our constitutional form of government is not
to vanish from the face of the earth” (R. 84).
This description of the property right cannot withstand
analysis. First, the court below dealt with the alleged right
of the property owner to racially discriminate as if it were
inviolate, when actually, states can prohibit racial discrim
ination in public eating places without offending any con
stitutionally protected property rights.25 And though the
laws violate the Fourteenth Amendment, North Carolina
has hardly hesitated in imposing the requirement of racial
•25 See Western Turf Ass’n v. Greenberg, 204 TJ. S. 359; Bailway
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 & Leslies, A Century of Civil Rights 172-177
(1961).
28
segregation on private property owners.26 Thus, of course,
the asserted property right to treat the races as one desires
on his property is very far indeed from an absolute or an
inalienable right and has not even been so regarded by
North Carolina. “ [T]he power of the State to create and
enforce property interests must be exercised within the
boundaries defined by the Fourteenth Amendment.” Shelley
v. Kraemer, 334 U. S. 1, 22, citing Marsh v. Alabama, 326
U. S. 501. Indeed, the Court said in Marsh v. Alabama,
supra, at 506, that constitutional control becomes greater
as property is more public in its use:
The more an owner for his advantage, 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. Eepublic
Aviation Corp. v. Labor Board, 324 IT. S. 793, 798, 802,
n. 8.
Of course, the Fourteenth Amendment does not forbid a
state to assist in the enforcement of property rights as
such. Indeed, for an obvious example, 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, supra, pp. 15-16, offer one useful basis
for distinguishing between permissible and impermissible
types of state action.
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
26 See pp. 20 to 21, supra, citing North Carolina laws requiring
segregation on private property.
29
great deal which of the rights or privileges constituting
Kress’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.
Illustrations include limitations that the law has placed
on those who would use their property to control the con
duct of donees, as by requiring divorce or separation,27 or
with respect to marriage,28 restrictions compelling separa
tion of a child from its parents,29 and requirements con
trolling certain personal habits.30
27 Provisions requiring divorce or separation were held void in :
Dwyer v. Kuchler, 116 N. J. Eq. 426, 174 Atl. 154 (Ch. 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 Misc. 252, 47 N. Y. S. 61 (Sup. Ct.
1897).
28 Certain marriage clauses have been held ineffective, 6 Powell,
Beal Property 1(851; A. L. I., Restatement of Property, §424
(1944) ; Maddox v. Maddox, Adm’r, 52 Va. 804 (1954).
29 Restrictions which compel the separation of a minor child from
itsjparent have not been viewed with favor, 6 Powell, Real Property
P.58, 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).
30 Holmes v. Connecticut Trust & Safe Deposit Co., 92 Conn. 507,
103 Atl. 640 (1918) (condition that conveyee’s husband abstain
30
The power to impose restraints on alienation has been
severely limited by courts and legislatures.31 Restrictive
covenants have been limited by common law.32 Their en
forcement in courts of equity33 and courts of law34 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.35
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.
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, Robinson-
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
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).
31 Gray, Restraints on the Alienation of Property §259 (2d ed.
1895); A. L. I., Restatement of Property, Div. 4, Social Restrictions
Imposed Upon the Creation of Property Interests 2121 (1944) ;
Browder, Illegal Conditions and Limitations: Miscellaneous Provi
sions, 1 Okla. L. Rev. 237 (1948).
32 Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925).
33 Shelley v. Kraemer, 334 U. S. 1.
34 Barrows v. Jackson, 346 U. S. 249.
85 Gray, The Rule Against Perpetuities §201 (4th ed. 1942) ■ 6
Powell, Real Property, fff759-827; Leach, Perpetuities in a Nutshell,
51 Harv. L. Rev. 638 (1938).
31
has also been curtailed by the antitrust laws,36 as well as
common law, and even the right of a single trader has
been greatly limited.37
Numerous statutes limit property holders in their power
to refuse to sell or rent on grounds of race or color38 or to
refuse to serve patrons in public accommodations on the
grounds of race or color.39 Historically, the right to select
86 riot’s v. Broadway-Hale Stores, 359 IT. S. 207 (1959), Lorain
Journal Co. v. TJ. S., 342 U. S. 143 (1951).
37 United States v. Colgate, 250 U. S. 300 (1919); See U. S. v.
Parke, Davis <& Co., 362 IT. S. 29 (1960); Rankin, The Parke, Davis
Case, 1961 Antitrust Law Symposium, New York State Bar Asso
ciation Section on Antitrust Law 63 (1961).
88 Cal. Health & Safety Code §35740; Mass. G. L. c. 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 are:
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).
39 Cal. Civil Code, §§51-52 (Supp. 1961); 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. I960); 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.
c. 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 (1960) ; 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);
32
customers has been limited by common law and statute.40
It is well known that innkeepers and carriers 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
examples indicate different aspects of this thoroughly set
tled, fundamental legal truth. Property owners have been
compelled to destroy valuable cedar forests which harbored
fungus threatening neighboring apple orchards,41 to spend
funds to install fire extinguishing equipment,42 to limit the
Ohio Rev. Code §4112.02(G) (Supp. 1961); Ore. Rev. Stat.
§§30.670-.680, as amended by L. 1961 e. 247; Pa. Stat. Ann., tit. 18,
§4654, as amended by Act No. 19 (1961); R. I. Gen. Laws §§11-24-1
to 11-24-6 (1956) ; Vt. 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).
40 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 Bd. Ill, 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. Ill, e. 10 (vietualers); (1360),
35 Bd. I l l (fishermen); (1433), 11 Hen. YI, c. 12 (eandlers) ;
(1464), 4 Bd. IV, c. 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. . . ”).
41 Miller v. Schoene, 276 U. S. 272 (1928).
42 Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946).
33
size of billboards,43 and to make loaves of bread a certain
size.44 Moreover, employers have been compelled to allow
labor organizational activities to be conducted on their
property.45 And only recently, property holders have been
forbidden to use their property in a way which would, in
the course of a program of racial discrimination, intimidate
their lessees in the exercise of the franchise, United States
v. Beaty, 288 F. 2d 653 (6th Cir. 1961).
Other facets of the claimed property right to discriminate
on the basis of race in these circumstances are clearly
separable from the core of Kress’s interest in its business.
In addition to the fact that no privacy has been intruded
upon, the asserted property right did not seek to protect
the premises from use alien to their intended function.
Petitioners sought only to purchase 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.
And this was not a private choice. It expressed community
custom. The capricious nature of the discrimination was
highlighted by the fact that this same store served food
to Negroes and to whites accompanying them if they were
standing, but not if they were seated (Pt. 22). As in Shelley
v. Kraemer, 334 U. 8. 1, 10, the restriction did not limit
the type of use made of the premises, nor the type of per
son or conduct permitted thereon except to refer to race.
Moreover, the property interest enforced below attempted
only to achieve discrimination in a store thrown open by
43 Semler v. Oregon State Board of Dental Examiners, 294 TJ. S.
608 (1935); St. Louis Poster Advertising Co. v. St. Louis, 249 TJ. S.'
269 (1919) ; Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917).'
44 Schmidinger v. Chicago, 226 U. S. 578.
45N.L.R.B. v. Babcock <& Wilcox Co., 351 IT. S. 105 (1955); Re
public Aviation Corp. v. N.L.R.B., 324 TJ. S. 793 (1945).
34
the owner to the general public (including Negroes) 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. Though a sign at the counter stated
“Invited Guests and Employees Only” (K, 23), in practice
the category of “Invited guests” was meant to include the
entire white public, except whites accompanying Negroes
(K. 22-23).
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 de
stroys the whole bundle of rights. That result would be
contrary to the entire genius or our jurisprudence.
The premise that Kress owns the property does not
lead to the ultimate logical extreme that it may absolutely
control the conduct and associations 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 Amend
ments. 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 the case at bar
Kress’s property is limited by the Fourteenth Amendment
35
and does not reach the constitutionally untenable logical
extreme that the states may aid the store in upholding
racism. “The Constitution confers upon no individual the
right to demand action by the State which results in the
denial of equal protection of the laws to other individuals.”
Shelley v. Kraemer, 334 U. S. 1, 22.
E. In Any Event the Convictions Below Must Fall When,
in Addition to the Foregoing, North Carolina Has
Failed to Protect Negro Citizens in the Might to
Equal Access to Public Accommodations.
Here, however, we have more than the elements set forth
above—State arrest, conviction and prison term; imple
mentation of a community custom of racial segregation
generated by state law; enforcement of an odious property
right of minor consequence to the owner; elaborate state
initiative and involvement in establishment and mainte
nance of the enterprise. Here the State has failed to pro
vide what the Civil Rights Cases assumed the States did
provide: “a right to enjoy equal accommodation 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 States’ failure or refusal
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
IT. 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,46 for the phrase, no state shall deny
46 See, generally Mr. Justice Harlan dissenting in Civil Rights
Cases, 109 U. S. 3, 26-62.
36
equal protection refers even more naturally to state inac
tion than to state action.
Mr. Justice Woods, a member of the majority in the Civil
Rights Cases, stated in United States v. Hall, 26 Fed. Gas.
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
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 Wil
son 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 pro
tection shall be provided for all persons.
2. That a failure to enact the proper laws for that
purpose, or a failure to enforce them, is a denial of
equal protection. (Emphasis added.)
3. That when there is such a denial Congress may
enact laws to secure equal protection.47
47 Cong. Globe, 42nd Congress, 1st Sess. 483 (1871).
37
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.48
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 by
acts of omission, by a failure to prevent its own citi
zens from depriving by force any of their fellow-
citizens of these rights.49 (Emphasis added.)
This view is endorsed by the opinion in the Civil Bights
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 accom
modation without racial discrimination:
We have discussed the question presented by the
law on the assumption that a right to enjoy equal ac
commodations and privileges in all inns, public con
veyances, and places of public amusement, is one of
48 Cong. Rec., 43d Cong., 1st Sess. 412 (1874).
49 Cong. Globe, 41st Cong., 2d Sess. 3611 (1870).
Other contemporary congressmen also suggested that state in
action may be as culpable as action; In a speech delivered by
Representative Bingham of Ohio, the framer of the key phrases in
Section One, it was repeatedly stated that the Fourteenth 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.
38
the essential rights of the citizen which no state can
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 appearsf (109 U. S. at 24). (Emphasis
added.)
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 exer
cising 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, 433 Cornell L. Q. 375, 376;
Hale, Force and the State: A Comparison of “Political”
and “Economic” Compulsion, 35 Colum. L. Bev. 149, 184
(1935); Poliak, Racial Discrimination and Judicial In
tegrity: A Reply to Professor Wechsler, 108 U. Pa. L. Bev
1, 21 (1959).
This case, therefore, is like Burton v. Wilmington Park
ing Authority, 365 IT. S. 715, 725 :
[T]he Authority could have affirmatively required
Eagle to discharge the responsibilities under the Four-
39
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 dis
crimination.
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.
II.
The Criminal Statute Applied to Convict Petitioners
Gave No Fair and Effective Warning That Their Actions
Were Prohibited: Petitioners’ Conduct Violated No
Standard Required by the Plain Language of the Law;
Thereby Their Conviction Offends the Due Process
Clause of the Fourteenth Amendment and Conflicts With
Principles Announced by This Court.
Petitioners were convicted under North Carolina General
Statute, §14-134, which provides:
If any person after being forbidden to do so, shall
go or enter upon the lands of another without a license
therefor, he shall be guilty of a misdemeanor, and on *
conviction, shall be fined not exceeding fifty dollars,
or imprisoned not more than thirty days.
Although the statute in terms prohibits only going on the
land of another after being forbidden to do so, the Sujjreme
Court of North Carolina has now construed the statute to
40
prohibit also remaining on property when directed to leave
following lawful entry (R. 82). Stated another way, the
statute now is applied as if “remain” were substituted for
“enter.” Expansive judicial interpretation of the statute
began by a statement in State v. Clyburn, 247 N. C. 455,
101 S. E. 2d 295 (1958) (a case in which defendants deliber
ately ignored racial signs posted outside an ice cream parlor
and also refused to leave upon demand),50 92 years after
enactment of the law.51
The instant case is the first unambiguous holding under
§14-134 which convicts defendants who went upon property
with permission and merely refused to leave when directed.
Without a doubt petitioners and all Negroes were welcome
within the store—apart from the basement lunch counter.
The arresting officer stated that, “The only crime committed
in my presence, as I saw it, was their failure and refusal to
leave when they were ordered to do so by the manager”
(R. 26). There were no discriminatory signs outside the
store (R. 23). No sign forbade Negroes and white persons
who accompany Negroes to sit at the lunch counter; the sign
said merely “Invited Guests and Employees Only” (R. 23).
Whatever petitioners’ knowledge of the store’s racial policy
as it had been practiced, there was no suggestion that they
50 In the Clyburn opinion, and here, the State Court explained
construction of §14-134 by reference to analogous construction of a
statute prohibiting forcible entry and detainer (N. C. Gen. Stat.
§14-126), which had been construed to apply to peaceful entry fol
lowed by forcible opposition to a later demand to leave. The court
held that “entry” was synonymous with “trespass” in both statutes
(§14-126 and §14-234). (§14-134 does not use the word “entry” ; it
states “go or enter upon.”)
The facts of the Clyburn case are summarized in the opinion
below in this case (R. 79).
51 The Statute was first enacted in 1866. North Carolina Laws,
Special Session, Jan., 1866, C. 60.
41
had ever been forbidden to go to the lunch counter and
request service. The Court’s conclusory statement that de
fendants “entered” (trespassed) “after having been for
bidden to do so” (R. 88), was simply a holding that defen
dants’ acts in failing to leave when directed violated the
statute.
Absent the special expansive interpretation given §14-134
by the North Carolina Supreme Court, the case would
plainly fall within the principle of Thompson v. City of
Louisville, 362 U. S. 199, and would be a denial of due proc
ess of law as a conviction resting upon no evidence of guilt.
There was obviously no evidence that petitioners entered the
premises “after having been forbidden to do so,” and the
conclusion that they did rests solely upon the special con
struction of the law.
The due process clause of the Fourteenth Amendment
requires that criminal statutes be sufficiently express to
inform those who are subject to them what conduct on their
part will render them criminally liable. “All are entitled
to be informed as to what the State commands or forbids.”
Lansetta v. New Jersey, 306 U. S. 451, 453.
The basic function of the proscription against “vague
ness” is to ensure that a defendant at the time of his acts
is sufficiently apprised by the state law that these acts are
forbidden. The whole thrust of the doctrine, therefore, con
cerns a right to fair warning at a time prior to the state
court’s interpretation of the statute under which the prose
cution was had. There must, therefore, be some limits set
to the range permitted to construction if the right to fair
warning is not to be seriously curtailed. Judicial construc
tion often has been permitted to cure criminal statutes of the
vice of vagueness, but these have been constructions which
confine, not expand, statutory language. Cf. ChaplinsJcy v.
42
New Hampshire, 315 U. S. 568, with Herndon v. Lowry, 301
U. S. 242. The more the construction expands a statute and
varies from what is reasonably predictable by the plain
words, the more it should be open to a charge of vagueness
in the application. In its present posture, the trespass stat
ute has been so judicially expanded that it could not have
given fair and effective warning of the acts it now prohibits.
Rather by expansive interpretation the statute now reaches
more than its words fairly and effectively define. This
Court, by adjudging the construction vague in the applica
tion does not usurp the function of the state court as the
ultimate arbiter of the meaning of state statutes. It merely
prevents an ad hoc statement of the posture of state law
from acting to deprive the defendants of fair notice required
by the due process clause of the Fourteenth Amendment.
This Court has in the past exercised such residual control
over construction of state law which unreasonably threat
ened defendants with a loss of their constitutional rights.
N. A. A. C. P. v. Alabama, ex rel. Patterson, 357 U. S. 449;
Staub v. Baxley, 355 U. S. 313.
Construing and applying federal statutes this Court has
long adhered to the principle expressed in Pierce v. United
States, 314 U. 8. 306, 311:
. . . judicial enlargement of a criminal act by interpreta
tion is at war with a fundamental concept of the com
mon law that crimes must be defined with appropriate
definiteness. Cf. Lansetta v. New Jersey, 306 U. S. 451,
and cases cited.
In Pierce, supra, the Court held a statute forbidding false
personation of an officer or employee of the United States
inapplicable to one who had impersonated an officer of the
T. Y. A. Similarly, in United States v. Cardiff, 344 U. S.
174, this Court held too vague for judicial enforcement a
43
criminal provision of the Federal Food, Drug, and Cosmetic
Act which made criminal a refusal to permit entry or in
spection of business premises “as authorized by” another
provision which, in turn, authorized certain officers to enter
and inspect “after first making request and obtaining per
mission of the owner.” The Court said in Cardiff, at 344
U. S. 174,176-177:
The vice of vagueness in criminal statutes is the treach
ery they conceal either in determining what persons are
included or what acts are prohibited. Words which are
vague and fluid (cf. United States v. L. Cohen Grocery
Co., 255 U. S. 81) may be as much of a trap for the
innocent as the ancient laws of Caligula. We cannot
sanction taking a man by the heels for refusing to grant
the permission which this Act on its face apparently
gave him the right to withhold. That would be making
an act criminal without fair and effective notice. Cf.
Herndon v. Lowry, 301 U. S. 242.
The Court applied similar principles in McBoyle v. United
States, 283 U. S. 25, 27; United States v. Weitzel, 246 U. S.
533, 543, and United States v. Wiltberger, 18 IT. S. (5
Wheat.) 76, 96. Through these cases runs a uniform appli
cation of the rule expressed by Chief Justice Marshall:
It would be dangerous, indeed, to carry the principle,
that a case which is within the reason or mischief of a
statute, is within its provisions, so far as to punish
a crime not enumerated in the statute, because it is
of equal atrocity, or of kindred character, with those
which are enumerated (Id. 18 IT. S. (5 Wheat.) at 96).
The cases discussed above involved federal statutes con
cerning which this Court applied a rule of construction
closely akin to the constitutionally required rule of fair and
44
effective notice. This close relationship is indicated by the
references to cases decided on constitutional grounds. The
Pierce opinion cited for comparison Lametta v. New Jersey,
supra, and “cases cited therein,” while Cardiff mentions
United States v. L. Cohen Grocery Co., supra, and Herndon
v. Lowry, supra.
On its face the North Carolina trespass statute warns
against a single act, i.e., going or entering upon the land of
another “after” being forbidden to do so. “After” connotes
a sequence of events which by definition excludes going on
or entering property “before” being forbidden. The sense
of the statute in normal usage negates its applicability to
petitioners’ act of going on the premises with permission
and later failing to leave when directed.
But by judicial interpretation “enter” was held synony
mous with “trespass,” and, in effect, also with “remain.”
Here a legislative casus omissus was corrected by the court.
But as Mr. Justice Brandeis observed in United States v.
Weitzel, supra at 543, a casus omissus while not unusual,
and often undiscovered until much time has elapsed, does
not justify extension of criminal laws by reference to legis
lative intent.
Moreover, that the indictments specified both that peti
tioners had entered after having been forbidden and also
that they refused to leave after being ordered to do so, does
not correct the unfairness inherent in the statute’s failure
specifically to define a refusal to leave as an offense. As
this Court said in Lametta v. New Jersey, supra:
It is the statute, not the accusation under it, that pre
scribes the rule to govern conduct and warns against
transgression. See Stromberg v. California, 283 U. S.
359, 368; Lovell v. Griffin, 303 IT. S. 444.
45
Petitioners do not contend for an unreasonable degree of
specificity in legislative drafting. Some state trespass laws
have specifically recognized as distinct prohibited acts the
act of going upon property after being forbidden and the
act of remaining when directed to leave.52
Converting by judicial construction the common English
word “enter” into a word of art meaning “trespass” or
“remain,” has transformed the statute from one which
fairly warns against one act into a law which fails to apprise
those subject to it “in language that the common word will
understand, of what the law intends to do if a certain line
is passed” (McBoyle v. United States, 283 IJ. S. 27). Nor
does common law usage of the word “enter” support the
proposition that it is synonymous with “trespass” or “re
maining.” While “enter” in the sense of going on and taking
possession of land is familiar (Ballantine, “Law Dictionary”
436 (2d Ed. 1948), “Black’s Law Dictionary” (4th Ed.
1951), 625), its use to mean “remaining on land and refusing
to leave it when ordered off” is novel.
It must be noted, too, that petitioners’ request for service
was part of a protest against racial discrimination and as
52 See for example the following state statutes which do effec
tively differentiate between “entry” after being forbidden and
“remaining” after being forbidden. The wording of the statutes
varies but all of them effectively distinguish between the situation
where a person has gone on property after being forbidden to do
so, and the situation where a person is already on property and
refuses to depart after being directed to do so, and provide sepa
rately for both situations: Code of Ala., Title 14, §426; Compiled
Laws of Alaska Ann. 1958, Cum. Supp. Vol. Ill, §65-5-112; Arkan
sas Code, §71-1808; Gen. Stat. of Conn. (1958 Rev.), §53-103; D. C.
Code §22-3102 (Supp. VII, 1956); Florida Code, §821.01; Rev.
Code of Hawaii, §312-1; Illinois Code, §38-565; Indiana Code,
§10-4506; Mass. Code Ann. C. 266, §120; Michigan Statutes Ann.
1954, Vol. 25, §28.820(1); Minnesota Statutes Ann. 1947, Vol. 40,
§621.57; Mississippi Code §2411; Nevada Code, §207.200; Ohio
Code, §2909.21; Oregon Code, §164.460; Code of Virginia, 1960
Replacement Volume, §18.1-173; Wyoming Code, §6-226.
46
such an exercise of free speech. This Court has in many
instances held a statute more amenable to an attack of
vagueness where its construction creates a danger of en
croachment on the right of free speech and threatens to
deter its legitimate exercise. Saia v. New York, 334 U. S.
558; Cantwell v. Connecticut, 310 U. S. 296; Runs v. New
York, 340 U. S. 290. To avoid an undue restriction on free
speech, where it is an incident of conduct, the statute must
clearly define the prohibited activity; consequently, the
scope of construction must have less latitude. An interpre
tation completely unpredictable by the plain language of
the statute, which is used to bring petitioners’ protest with
in the ambit of prohibited conduct cannot but have such an
“inhibiting effect on speech.” Smith v. California, 361 U. S.
147,151.
As construed and applied, the law in question no longer
informs one what is forbidden in fair terms, and no longer
warns against transgression. This failure offends the stand
ard of fairness expressed by the rule against expansive
construction of criminal laws and embodied in the due
process clause of the Fourteenth Amendment.
47
III.
The Decision Below Conflicts With Decisions of This
Court Securing the Fourteenth Amendment Might to
Freedom of Expression.
Petitioners were engaged in the exercise of free expres
sion by means of verbal requests to the management and
the requests implicit in seating themselves at the counter
for nonsegregated lunch counter service. Their expression
(asking for service) was entirely appropriate to the time
and place in which it occurred. Certainly the invitation to
enter an establishment carries with it the right to discuss
and even argue with the proprietor concerning terms and
conditions of service so long as no disorder or obstruction
of business occurs.
Petitioners did not shout, obstruct business, carry picket
ing signs, give out handbills, or engage in any conduct
inappropriate to the time, place and circumstances. And,
as is fully elaborated above, supra, pp. 15-16, there was no
invasion of privacy involved in this case, since the lunch
counter was an integral part of commercial property open
up to the public.
This Court and other courts on numerous occasions have
held that the right of free speech is not circumscribed
by the mere fact that it occurs on private property. The ex
istence of a property interest is but one circumstance to
be considered among many. In Marsh v. Alabama, supra,
for example, this Court overturned the trespass conviction
of Jehovah’s Witnesses who went upon the premises of a
company town to proselytize holding that such arrest and
conviction violated the Fourteenth Amendment. In Re
public Aviation Corp. v. National Labor Relations Board,
48
324 IT. S. 793, the Court upheld the validity of the National
Labor Relations Board’s ruling that lacking special cir
cumstances that might make such rules necessary, employer
regulations forbidding ail union solicitation on company
property regardless of whether the workers were on their
own or company time, constituted unfair labor practices.53
In Martin v. Struthers, 319 U. S. 141, this Court held
unconstitutional an ordinance which made unlawful ringing
doorbells of residences for the purpose of distributing hand
bills, upon considering the free speech values involved—
“ [d]oor to door distribution of circulars is essential to
the poorly financed causes of little people,” at p. 146—
and that the ordinance precluded individual private house
holders from deciding whether they desired to receive the
message. But effecting “an adjustment of constitutional
rights in the light of the particular living conditions of the
time and place”, Breard v. Alexandria, 341 U. S. 622, 626,
the Court, assessing a conviction for door-to-door commer
cial solicitation of magazines, contrary to a “Green River”
ordinance, concluded that the community “speak [ing] for
the citizens,” 341 U. S. 644, might convict for crime in the
nature of trespass after balancing the “conveniences be-
53 See also N.L.B.B. v. American Pearl Button Co., 149 F. 2d 258
(8th Cir., 1945) ; United Steelworkers v. N. L. B. B., 243 F. 2d 593,
598 (D. C. Cir., 1956) (reversed on other grounds) 357 U. S. 357.
(“Our attention has not been called to any case under the Wagner
Act or its successor in which it has been held that an employer can
prohibit either solicitation or distribution of literature by em
ployees simply because the premises are company property.
Employees are lawfully within the plant, and nonworking time
is their own time. If Section 7 activities are to be prohibited,
something more than mere ownership and control must be shown.”)
Compare N.L.B.B. v. Fansteel Metal Corp., 306 U. S. 240, 252
(employees seized plant; discharge held valid: “high-handed pro
ceeding without shadow of legal right”) .
49
tween some householders’ desire for privacy and the pub
lisher’s right to distribute publications in the precise way
that those soliciting for him think brings the best results.”
341 U. S. at 644. Because, among other things, “ [subscrip
tion may be made by anyone interested in receiving the
magazines without the annoyances of house to house can
vassing,” ibid., the judgment was affirmed.
Similarly, following an appraisal of the speech and
property considerations involved, a Baltimore City Court,
State of Maryland v. Williams, 44 Lab. Eel. Eef. Man.
2357, 2361 (1959), has on Fourteenth Amendment and
Labor Management Relations Act grounds, decided that
pickets may patrol property within a privately owned shop
ping center. See also People v. Barisi, 193 Misc. 934, 86
N. Y. S. 2d 277, 279 (1948), which held that picketing within
Pennsylvania Station was not trespass; the owners opened
it to the public and their property rights were “circum
scribed by the constitutional rights of those who use it” ;
Freeman v. Retail Clerks Union, Washington Superior
Court, 45 Lab. Eel. Eef. Man. 2334 (1959), which denied
relief to a shopping center owner against picketers on his
property, relying on the Fourteenth Amendment.
The liberty secured by the due process clause of the Four
teenth Amendment insofar as it protects free expression
is not limited to verbal utterances, though petitioners here
expressed themselves by speech. The right comprehends
picketing, Thornhill v. Alabama, 310 II. S. 88; free distri
bution of handbills, Martin v. Struthers, 319 U. S. 141;
display of motion pictures, Burstyn v. Wilson, 343 U. S.
495; joining of associations, N.A.A.C.P. v. Alabama, 357
U..S. 449; the display of a flag or symbol, Stromberg v.
California, 283 IT. S. 359. What has become known as a
“sit in” is a different but obviously well understood symbol,
a meaningful method of communication and protest.
50
In the circumstances of this case, the only apparent state
interest being preserved was that of maintaining the man
agement’s right to exclude Negroes from the lunch counter.
The management itself sought nothing more. But as Justice
Holmes held in Schenck v. United States, 249 U. S. 47, 52,
the question is “whether the words used are used in such
circumstances and are of such a nature as to create a clear
and present danger that they will bring about the sub
stantive evil” that the state has a right to prevent.
The state has no interest in preserving such discrimina
tion and certainly has no valid interest in suppressing
speech which is entirely appropriate to the time and place
and does not interfere with privacy, when the speech urges
an end to racial discrimination imposed in accordance with
the customs of the community.
51
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the judgments below should be reversed.
Respectfully submitted,
J ack Greenberg
Constance B aker Motley
J ames M. Nabrit, III
10 Columbus Circle
New York 19, New York
L. C. B erry, J r.
W illiam A. Marsh, J r.
F. B. McK issick
C. 0 . P earson
W. G. P earson
M. H ugh Thompson
Durham, North Carolina
Attorneys for Petitioners
D errick B ell
L eroy Clark
W illiam T . Coleman, J r .
Michael Meltsner
W illiam R. Ming, J r.
Louis H. P ollak
J oseph L. R auh
Herbert 0 . R eid
Of Counsel