Fox v. North Carolina Brief of the Respondent in Opposition to Petition for Writ of Certiorari

    Supreme Court of the United States
October Term, 1960

No. 944

JAM ES A. FOX and ALBERT R. SAMPSON,
Petitioners,

vs.

STATE OF NORTH CAROLINA
Respondent.

BRIEF OF THE RESPONDENT, STATE OF NORTH 
CAROLINA, IN OPPOSITION TO PETITION FOR 
W R IT  OF CERTIORARI.

T. W. BRUTON,
Attorney General of North Carolina

RALPH MOODY,
Assistant Attorney General

Justice Building 
Raleigh, North Carolina

Counsel for the State of 
North Carolina, Respondent.



INDEX

Opinion Below...................................................................................  1
Jurisdiction........................................................................................  2
Questions Presented..........................................................................  2
Constitutional Provisions and Statutes Involved ........................  2
Respondent’s Statement of the Case ........................... -................  3
Argument ..........................................................................................  5

I. The State Prosecution did not Deprive Petitioners of
any Rights Protected by the Fourteenth Amendment......  5

II. The State Statute is not Unconstitutional for Uncer­
tainty and Vagueness ........................................................... 11

III. The Statute as Administered does not violate the
Constitutional Protection of Freedom of Speech................. 13

IV. Conclusion ...............................................................................  16

TABLE OF CASES
American Federation of Labor v. Watson, 327 U.S. 582 .............  10
Armstrong v. Armstrong, 230 N.C. 201, 52 S.E. 2d 362 ................. 9
Barrows v. Jackson, 346 U.S. 249 ..................................................  6
Beauharnais v. Illinois, 343 U.S. 250 ..............................................  12
Bolling v. Sharpe, 347 U.S. 497 ......................................................... 7
Boman v. Birmingham Transit Co., 280 F2d 531 ........................ 6
Bowder v. Gayle, 142 F. Supp. 707, aff’d 352 U.S. 903 ................. 6
Boynton v. Virginia,..........U.S............. . 5 L.ed. 2d 206 ...............  9
Brookside-Pratt Min. Co. v. Booth, 211 Ala. 268 ...........................  10
Brown v. Board of Education, 347 U.S. 483 ..................-............. 7
Burton v. Wilmington Parking Authority, 29 U.S. Law

Week 4317 ...................................................................................  7
City of Greensboro v. Simkins, 246 F.2d 425 ............................... 7
Civil Rights Cases, 109 U.S. 3 .........................................................  16
Cole v. Arkansas, 338 U.S. 345 .....................................................  12
Cooper v. Aaron, 358 U.S. 1 ..........................................................  7
Derrington v. Plummer, 240 F.2d 922 ........................................... 7

i



Dawson v. Baltimore, 220 F.2d 386, ail’d 350 U.S. 877 ................. 7
Flemming v. South Carolina Elec. & Gas Co., 224 F.2d 752 .......... 6
Highland Farms Dairy v. Agnew, 300 U.S. 608 ...........................  10
Kovacs v. Cooper, 336 U.S. 77 .....................................................  14
Lee v. Stewart, 218 N.C. 287, 10 S.E. 2d 804 ................................  9
Monroe v. Pape, No. 39, Oct. Term, 1960, Feb. 20, 1961 ...............  6
Milk Wagon Drivers Union v. Meadowmoor Dairies, 312

U.S. 287 ............................................. ...................................  ...... 14
Marsh v. Alabama, 326 U.S. 501 .......................................................  15
Nash v. United States, 229 U.S. 373 ......     13
Phillips v. United States, 312 U.S. 246 ...........................................  10
Roth v. United States, 354 U.S. 476 ..............................................  12
Schenck v. United States, 249 U.S. 4 7 ............................................. 14
Screws v. United States, 325 U.S. 91 ...........................................6,12
Shelley v. Kraemer, 334 U.S. 1 .................................................... 6,8
Slack v. Atlantic White Tower System, Inc., 181 F. Supp.

124, aff’d 284 F.2d 746 ............................................. .................. 10
State v. Avent, et als, 253 N.C. 580, 118 S.E. 2d 4 7 ........................ 1
State v. Baker, 231 N.C. 136, 56 S.E. 2d 424 ..................................  9
State v. Clyburn, 247 N.C. 455, 101 S.E. 2d 295........................9,10,11
State v. Cooke et als., 246 N.C. 518, 98 S.E. 2d 885 ........................ 9
State v. Fox, 254 N.C. 97, 118 S.E. 2d 58 .......................................  1
State v. Goodson, 235 N.C. 177, 69 S.E. 2d 242 .......................... 9
Terminal Taxicab Co. v. Kutz, 241 U.S. 252 ..................................  8
Thornhill v. Alabama, 310 U.S. 88 ..............................................  14
United States v. Cruikshank, 92 U.S. 542 .......................................  8
United States v. Harris, 106 U.S. 629 ............................................. 8
United States v. Wurzbach, 280 U.S. 396 ...................................... 12

Valle v. Stengel, 176 F. 2d 697 .......................................................  6

Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845 ............ 10

Williams v. United States, 341 U.S. 9 7 ...........................................  12

ii



CONSTITUTIONAL PROVISIONS AND STATUTES

Constitution of the United States:
First Amendment.............. ...............................................................  13
Fourteenth Amendment....................................................2,5, 6, 7,8,11
Federal Statutes:
28 U.S.C. 1257 (3) ..............................................................................  2
42 U.S.C. 1981 ...................................................................................  6
42 U.S.C. 1982 ...................................................................................  6
18 U.S.C. 242 ....................................................................................  12
State Statutes:
Sec. 14 - 134 of General Statutes of North Carolina.................2, 9,11
Sec. 14 - 126 of General Statutes of North Carolina......................  9

LAW REVIEW ARTICLES

Race Relations Law Reporter ......................................................... 6,7
47 Virginia Law Review 1 ............................................................  7
46 Virginia Law Review 123 ..........................................................  7
15 U. of Miami Law Review 123 ............................. ......................  7
1960 Duke Law Journal 315 ......................................................... 7
109 U. of Pennsylvania Law Review 67 ...................................... 13
62 Harvard Law Review 77.............................................................. 13
40 Cornell Law Quarterly 195 ......................................................... 13

iii



Supreme Court of the United States
October Term, 1960

No. 944

JAM ES A. FOX and ALBERT R. SAMPSON,
Petitioners,

vs.

STATE OF NORTH CAROLINA
Respondent.

BRIEF OF THE RESPONDENT, STATE OF NORTH 
CAROLINA, IN OPPOSITION TO PETITION FOR 
W R IT  OF CERTIORARI.

OPINION BELOW

The opinion of the Supreme Court of North Carolina, in 
this case, is reported as STATE v. FOX, 254 N. C. 97 (No. 1, 
Advance Sheets of the Supreme Court, issued March 9, 
1961); 118 S. E. 2d 58. This opinion is also set forth in the 
Petitioners’ Appendix at p. la and the opinion in this case 
is based upon the opinion of the Supreme Court of North 
Carolina in STATE v. AVENT, et als, 253 N. C. 580 (No. 6, 
Advance Sheets of the Supreme Court, issued February 15, 
1961); 118 S. E. 2d 47. The opinion in the AVENT case is 
also set forth in the Petitioners’ Appendix to their brief 
in this case beginning on p. 5a, the opinion having been



2

written by Mr. Justice Parker and not by “Mr. Justice Mal­
lard.” The Judgment of the Superior Court of Wake Coun­
ty, which is a court of general jurisdiction, is shown on p. 28 
of the State Record (No. 442, 10th District, Fall Term 1960) 
certified to this Court by the Clerk of the Supreme Court of 
North Carolina. It is not officially reported in any legal 
publication.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 
U. S. C. 1257 (3), the Petitioners alleging a violation of con­
stitutional rights secured by the Fourteenth Amendment. 
The Respondent, State of North Carolina, denies that the 
Petitioners have shown a sufficient basis for this Court to 
exercise its jurisdiction.

QUESTIONS PRESENTED

The Respondent, State of North Carolina, will present its 
Brief in opposition to the Petitioners’ application for Writ 
of Certiorari upon the assumption that the three questions 
stated by Petitioners on p. 2 of their Brief are the issues in­
volved in the case.

CONSTITUTIONAL PROVISION AND STATUTE 
INVOLVED

The Petitioners rely upon Section 1 of the Fourteenth 
Amendment to the Constitution of the United States.

The Petitioners also attack Section 14-134 of the General 
Statutes of North Carolina, the pertinent part of which is 
as follows:

“G.S. 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 misdeameanor, and on conviction, shall



3

be fined not exceeding fifty dollars or imprisoned not more 
than thirty days.”

RESPONDENT'S STATEMENT OF THE CASE

In this Brief the Respondent will refer to the State Rec­
ord certified to this Court by the Clerk of the Supreme 
Court of North Carolina by the designation of SR.

On March 21, 1960, the Petitioners Fox and Sampson 
were students at Shaw University, Sampson being a resi­
dent of the State of Massachusetts and Fox being a resident 
of Washington, D. C. (SR - 80, 85) On this day the Petition­
ers were walking up and down in front of the McLellan 
Store picketing the store and carrying signs on which were 
printed statements, or slogans, relating to their desire to 
be served at the lunch counter in the store. These two Pe­
titioners were students at Shaw University but they testified 
that there was a movement both at Shaw and Saint Augus­
tine Colleges to picket and protest all stores which would 
not permit them to be served at the lunch counters located 
in the stores. (SR - 80, 85) After these Petitioners had en­
gaged in picketing for a while the Petitioner Sampson call­
ed the Petitioner Fox’ attention to the fact that the lunch 
counter in McLellan Store was unblocked. (SR - 81, 85) The 
management of the store had fenced off the cafe, or restau­
rant, portion with a fence located approximately two feet 
from the 43 stools at the lunch counter and at the entrance 
to the lunch counter had placed a sign 11 x 14 inches, say­
ing: “Employees and Guests Only” and on the lefthand side 
of the gate to the cafe another sign 11 x 7 inches had been 
placed on which appeared: “No Trespassing.” These signs 
were at the gate, or entrance, to the lunch counter portion 
of the store, and they faced away from the lunch counter 
towards the front of the store and the doors entering from 
Fayetteville Street. (SR - 50)

Pursuant to instructions and on the advice of leaders, 
the Petitioners, for the purpose of creating circumstances 
which would lead to this case which their counsel wished 
to use as a test case, first made some small purchases in



4

the general part of the store which they conceived would 
strengthen their legal position when they made their plan­
ned and intentional entrance into the fenced-off portion of 
the store which contained the lunch counter. (SR - 81, 85) 
After the purchases the Petitioners entered into the lunch 
counter portion where the Manager told them he did not 
have facilities to serve colored people and for them to leave. 
(SR - 51) They stated that they were not going to leave 
and that they wanted to get service, and they were again 
asked by the Manager to leave; they refused to do so and 
continued to sit at the lunch counter. (SR - 51) The As­
sistant Manager was asked to get a patrolman, which he 
did, and Patrolman Duke came into the store and was in­
formed as to what was taking place. The Manager again, 
upon the advice of the patrolman, went to the Petitioners 
and asked them to leave; then the patrolman went to the 
Petitioners and informed them that he would give them one 
minute to leave the store and when that time was up he 
would have to arrest them. (SR - 51, 58) The Manager 
testified that he asked the Petitioners to leave five times 
and that he was told by them twice that they were not 
going to leave. (SR - 52) It is clear that the Petitioners 
knew that they were not wanted and would not be served 
at the store’s lunch counter because they had been observed 
by the Manager a week prior to this occasion walking up 
and down in front of the store with picketing signs and 
passing out leaflets claiming discrimination. (SR - 52) They 
also had seen the signs at the entrance to the lunch counter 
and knew the purpose of the signs. (SR - 52, 53) The man­
ager testified (SR - 53) that he could not operate the store 
normally and serve colored people at the lunch counter. The 
Manager testified (SR - 53) that he had had previous trouble 
with colored students from Shaw University coming in, sit­
ting down, and taking possession of his lunch counter and 
that was the reason he placed the fence around the lunch 
counter with the signs. On the day that this occurrence 
took place there were 25 or 30 white people at the lunch 
counter (S R -54) and the Manager thought that Sampson 
ordered a cup of coffee. (SR - 55) The Manager further 
testified that these Petitioners were interfering with his



5

business because he did not have the facilities to serve 
colored people. (SR - 55)

Officer Duke testified that when he came in he was in­
formed of the situation and he asked the Petitioners to leave; 
that he told the Manager to ask them again to leave in his 
presence, which was done. (SR - 58) Officer Duke then told 
them they had one minute in which to leave and if they did 
not leave within that time he would arrest them for tres­
passing. Officer Duke then looked at his watch and when 
45 seconds had elapsed he informed the Petitioners that 
they had 15 seconds left; when that time was up the Peti­
tioners continued to occupy the lunch counter stools, and 
he arrested Petitioners and carried them to the Wake Coun­
ty Jail. On the way to the jail Sampson said that the arrest 
was what they wanted and Fox said he had been thinking 
about joining the Police Department when he finished col­
lege. (SR - 59) The Petitioners, therefore, had achieved their 
objective and had carried out their plans and instructions 
in that they intentionally and wilfully committed a tres­
pass in order to be arrested and thereby create a test case 
for their counsel. They were given every opportunity to 
leave the lunch counter part of the store, they knew a police­
man had been sent for, and after the policeman came they 
were again given every opportunity to leave without arrest.

ARGUMENT

THE STATE PROSECUTION DID NOT DEPRIVE PETI­
TIONERS OF ANY RIGHTS PROTECTED BY THE 
FOURTEENTH AMENDMENT.

Petitioners in their Brief assert several propositions relat­
ing to race discriminations prohibited by the Fourteenth 
Amendment about which there is no contest and which do 
not come within the ambit of the issues to be resolved in 
this case. Some of these propositions, about which there is 
no controversy, are as follows:



6

(1) The Respondent admits that action by the judicial
branch of a state government can be such a type of state 
action that offends against the prohibitory provisions of 
the Fourteenth Amendment (SHELLEY v. KRAEMER, 334 
U. S. 1; BARROWS v. JACKSON, 346 U. S. 249; Race Rela­
tions Law Reporter, Vol. 1, No. 3, pp. 613, 622). We still
think there is such a thing as valid state action by the
judicial branch of a state government.

(2) The Respondent admits that the provisions of the
Fourteenth Amendment extend to and reach the conduct of 
state police officers (MONROE v. PAPE, No. 39, Oct. Term, 
1960, Feb. 20, 1961; SCREWS v. UNITED STATES, 325
U. S. 91). We deny that it extends to and reaches valid
conduct of state police officers exercised under valid state 
authority.

(3) We admit that there can be unlawful state action by 
a police officer acting under “color of law” where a state 
has enacted a Civil Rights statute which prohibits the denial 
of accommodations or privileges to a person because of color 
in places of amusement or in restaurants. (VALLE v. STEN­
GEL, CCA-3, 176 F. 2d 697, 701). We think the rule can 
be different where a state has no such statute.

(4) We admit that where a state grants a franchise to a 
public utility there cannot be discrimination in the use of 
facilities or services furnished the patrons because of color 
nor can the state enforce such discriminations by delegating 
the power to make rules or by criminal sanctions (BOMAN 
v. BIRMINGHAM TRANSIT CO., CCA-5, 280 F. 2d 531; 
BOWDER v. GAYLE, 142 F. Supp. 707, aff’d 352 U. S. 903; 
FLEMING v. SOUTH CAROLINA ELEC. & GAS CO, CCA- 
4, 224 F. 2d 752). We deny that this rule applies to business 
under private ownership.

(5) We admit that all citizens, white and colored, have 
the right to contract, acquire and own property, are entitled 
to security of person and property, and to inherit, purchase, 
lease, hold and convey real and personal property as set



7

forth in R.S. 1977, 42 USC 1981, and R.S. 1978, 42 USC 
1982. We do not admit that any person, white or colored, 
can be constitutionally forced to sell any private property 
or product to another person, or that one person is forced 
to negotiate with another person in or about any property 
or business transaction.

(6) We admit that there is an abundance of legal author­
ity to the effect that a state or a subdivision of a state which 
operates restaurants or other facilities, or operates play­
grounds or parks, or facilities of this nature, cannot by the 
device of a lease to private persons or firms discriminate 
against colored persons who desire to use such facilities, and 
that “the proscriptions of the Fourteenth Amendment must 
be complied with by the lessee as certainly as though they 
were binding covenants written into the agreement itself.” 
(BURTON v. WILMINGTON PARKING AUTHORITY, 29 
U. S. Law Week 4317, No. 164, Oct. Term 1960, April 17, 
1961; DERRINGTON v. PLUMMER, CCA-5, 240 F. 2d 922; 
CITY OF GREENSBORO v. SIMKINS, CCA-4, 246 F. 2d 
425; DAWSON v. BALTIMORE, CCA-4, 220 F. 2d 386, aff’d 
350 U. S. 877).

(7) We don’t think the cases on discrimination in public 
schools have anything to do with this case, but we admit 
there can be no state action which supports racial discrimi­
nation in this field and as set forth in the cases of BROWN 
v. BOARD OF EDUCATION, 347 U. S. 483, BOLLING v. 
SHARPE, 347 U. S. 497, and COOPER v. AARON, 358 U. S. 
1.

Our contentions and the concepts that we believe to be 
sound have been fully stated by Mr. Justice Parker in 
STATE v. AVENT et als., 253 N. C. 580 (N. C. Advance 
Sheets No. 6, issued Feb. 15, 1961), 118 S. E. 2d 47, Peti­
tioners’ Appendix p. 2a. The matter has been considered 
by the law review writers (47 Virginia Law Review—No. 1, 
Jan. 1961, p. 1; 46 Virginia Law Review - 1960 - p. 123; 15 
U. of Miami Law Review - No. 2 - 123; Race Relations Law 
Reporter, Vol. 5, No. 3 - Fall 1960 - p. 935; 1960 Duke Law 
Journal 315).



8

We assert that private citizens or persons have the right 
to practice private discrimination for or against each other. 
This runs all through the fabric of society and life. Clubs, 
lodges and secret societies will accept some as members and 
reject others. The country club people do not associate with 
the people that live in slum areas and across the railroad 
track. The people of some races will have no dealings with 
people of other races. Discriminations are practiced inside 
the race group. The colored insurance men, doctors and 
bankers do not have social affairs that are open to the cot­
ton and cornfield Negroes. We further assert that any color­
ed citizen can refuse to transact business with a white per­
son or to have him on his business premises and the rule 
applies in reverse. Up to the present time, in private busi­
ness, no man has been compelled to sell his product, goods 
or services to another unless he desired to so do. The rea­
sons or motives that prompt his choice of action are irrele­
vant. The same private rights in the use and enjoyment of 
property are available to all. The protection of these private 
rights is not an “indiscriminate imposition of inequalities”. 
As said by Mr. Justice Holmes (TERMINAL TAXICAB CO. 
v. KUTZ, 241 U. S. 252, 256):

“It is true that all business, and for the matter of that, 
every life in all its details, has a public aspect, some 
bearing on the welfare of the community in which it is 
passed. But however it may have been in earlier days 
as to the common callings, it is assumed in our time 
that an invitation to the public to buy does not neces­
sarily entail an obligation to sell. It is assumed that an 
ordinary shopkeeper may refuse his wares arbitrarily 
to a customer whom he dislikes * *

This court carefully stated (SHELLEY v. KRAEMER, 
334 U. S. 1):

“That Amendment erects no shield against merely priv­
ate conduct, however discriminatory or wrongful.” (cit­
ing in the note: UNITED STATES v. HARRIS, 106 
U. S. 629; UNITED STATES v. CRUIKSHANK, 92 U. S. 
542.)



9

In BOYNTON v. VIRGINIA, 5 L. ed. 2d 206, ---------
U. S .______ , this Court said:

“We are not holding that every time a bus stops at a 
wholly independent roadside restaurant the Interstate 
Commerce Act requires that restaurant service be sup­
plied in harmony with the provisions of that Act.”

But if there existed another vital, and primary constitu­
tional principle that required that restaurant service be 
supplied by the roadside restaurant to a colored man, then 
there would seem to be no reason why this Court should 
pass it by and not settle the question.

The State Statute here under consideration is an old 
statute and has been passed upon by the Supreme Court 
of North Carolina many times. It appears in the State code 
as G. S. 14 - 134 and we refer the Court to certain cases, as 
follows: STATE v. CLYBURN, 247 N. C. 455, 101 S. E. 2d 
295; STATE v. COOKE et als., 246 N. C. 518, 98 S. E. 2d 885; 
STATE v. GOODSON, 235 N. C. 177, 69 S. E. 2d 242; ARM­
STRONG v. ARMSTRONG, 230 N. C. 201, 52 S. E. 2d 362; 
LEE v. STEWART, 218 N. C. 287, 10 S. E. 2d 804; STATE 
v. BAKER, 231 N. C. 136, 56 S. E. 2d 424. See also cases 
cited in annotation to Sec. 14 - 134 in General Statutes of 
North Carolina, and the 1959 Supplement thereto. A related 
statute is G. S. 14 - 126 which is as follows:

“No one shall make entry into any lands and tenements, 
or term for years, but in case where entry is given by 
law; and in such case, not with strong hand nor with 
multitude of people but only in a peaceable and easy 
manner; and if any man do the contrary, he shall be 
guilty of a misdemeanor.”

This statute was borrowed from English law and in sub­
stance is 5 Richard II, c. 8, and in fact it would appear that 
this statute and the one under consideration are formulations 
of the common law.

The statute now attacked by Petitioners is a neutral sta­



10

tute and has no connection with the color of persons. We 
challenge the Petitioners to trace the reported decisions and 
show that in its judicial administration it has been applied 
to colored persons and not to white persons. It is available 
to the colored man if a white man will not leave his premises 
when requested to do so.

The implied invitation to the general public to come into 
a shop or store can lawfully be revoked. On this aspect of 
the case the Supreme Court of North Carolina (253 N. C. 
580, 588) said:

“In an Annotation in 9 A.L.R., p. 379, it is said: ‘It 
seems to be well settled that, although the general pub­
lic have an implied license to enter a retail store, the 
proprietor is at liberty to revoke this license at any time 
as to any individual, and to eject such individual from 
the store if he refuses to leave when requested to do 
so.’ The Annotation cites cases from eight states sup­
porting the statement. See to the same effect, BROOK- 
SIDE-PRATT MIN. CO. v. BOOTH, 211 Ala. 268, 100 
So. 240, 33 A.L.R. 417, and Annotations in 33 A.L.R. 421”.

Leaving aside the question of void-for-vagueness, the in­
terpretation of the highest appellate Court of a state should 
be accepted by the Federal Courts (AMERICAN FEDERA­
TION OF LABOR v. WATSON, 327 U. S. 582; PHILLIPS v. 
UNITED STATES, 312 U. S. 246; HIGHLAND FARMS 
DAIRY v. AGNEW, 300 U. S. 608).

The Petitioners have not cited any case dealing with priv­
ate discrimination which supports their position, and indeed 
they cannot do so. Up to the present time the Courts that 
have considered the matter support our position (STATE 
v. CLYBURN, 247 N. C. 455, 101 S. E. 2d 295; WILLIAMS 
v. HOWARD JOHNSON’S RESTAURANT, 268 F. 2d 845; 
SLACK v. ATLANTIC WHITE TOWER SYSTEM, INC., 
181 F. Supp. 124, aff’d 284 F. 2d 746; see also cases cited 
in opinion of Supreme Court of North Carolina in this case, 
and in law review articles cited supra).



11

As we see the matter, up to the present time, wherever 
the prohibitions of the Fourteenth Amendment have been 
invoked there has been a clear, established right to be pro­
tected from state action or from any discrimination aided 
or assisted by state action. Up to the present time in this 
case the Petitioners are starting from a position where they 
have no clear, established right to be protected by constitu­
tional guarantees. They are asking the Court to invent, create 
or conjure up the claimed right and then say it is entitled 
to the protection of the Fourteenth Amendment. If it shall 
be said that the State court cannot exert its power to protect 
the property rights of either race but will leave the parties 
to their own devices, or to the exercise of personal force, 
then the result will be something that neither the white or 
colored race really desires.

II

THE STATE STATUTE IS NOT UNCONSTITUTIONAL 
FOR UNCERTAINTY AND VAGUENESS.

The Petitioners’ next attack on the statute comes under 
the so-called void-for-vagueness doctrine. Here we enter into 
a field of constitutional law which it seems to us is measured 
entirely by subjective tests.

There is one thing sure however—the Petitioners were 
engaged in a previously organized campaign and there is 
strong reason to believe from the evidence that they had 
the advice of counsel. The Supreme Court of North Carolina 
has construed G. S. 14 - 134 many times to include the situ­
ation where a person enters upon lands or premises without 
protest and is later told by the owner or proprietor to leave 
the premises. The case of STATE v. CLYBURN, 247 N. C. 
455, 101 S. E. 2d 295, was decided on January 10, 1958, and 
Petitioners and their counsel had ample warning of this 
construction of the statute. We have heretofore cited above 
many cases in which the Supreme Court of North Carolina 
has construed the statute. This Court has said in substance 
that impossible standards of definition are not required and



12

that it is sufficient if the language “conveys sufficiently 
definite warning as to the proscribed conduct when measur­
ed by common understanding and practices.” On this point, 
see ROTH v. UNITED STATES, 354 U. S. 476, and see an­
notation in 1 L. ed 2nd, p. 1511.

This State statute is certainly no more vague or uncertain 
than 18 USCA 242, which reads as follows:

“Whoever, under color of any law, statute, ordinance, 
regulation, or custom, willfully subjects, or causes to 
be subjected, any inhabitant of any State, Territory, 
or District to the deprivation of any rights, privileges, 
or immunities secured or protected by the Constitution 
and laws of the United States, or to different punish­
ments, pains, or penalties, on account of such inhabitant 
being an alien, or by reason of his color, or race, than 
are prescribed for the punishment of citizens, shall be 
fined not more than $1,000.00, or imprisoned not more 
than one year, or both.”

This Court reviewed the statute and its history and up­
held the statute against an attack based on unconstitutional 
vagueness in SCREWS v. UNITED STATES, 325 U. S. 91.

For other causes in which statutes have been upheld 
against such an attack see: BEAUHARNAIS v. ILLINOIS, 
343 U. S. 250, COLE v. ARKANSAS, 338 U. S. 345, WIL­
LIAMS v. UNITED STATES, 341 U. S. 97, UNITED 
STATES v. WURZBACH, 280 U. S. 396.

As a practical matter, an ordinary layman has trouble with 
any statute no matter how precise its standards of conduct 
and no matter how clear it may be in the informational pro­
cess. Statutes really are written for lawyers to read and to 
form opinions and advise clients thereon, and the statute 
now under attack when considered with the constructions 
of the highest appellate Court of the State clearly informs 
Counsel for Petitioners what the consequences could be.

There must be some latitude in statutory language be­



13

cause statutes are drafted for the most part in an attempt 
to take care of unanticipaed situations as well as those that 
may be in contemplation when the drafting process is first 
initiated. In NASH v. UNITED STATES, 229 U. S. 373, Mr. 
Justice Holmes summed up the situation as follows:

“But, apart from the common law as to the restraint of 
trade thus taken up by the statute, the law is full of 
instances where a man’s fate depends on his estimating 
rightly, that is, as the jury subsequently estimates it, 
some matter of degree. If his judgment is wrong, not 
only may he incur a fine or a short imprisonment, as 
here; he may incur the penalty of death.’

This question has also been written about extensively by 
the law review writers and in closing this portion of the 
argument we cite a few of these articles but this is not to 
be construed by the Court as meaning that we approve all 
the criticisms and conclusions of the authors (109 University 
of Pennsylvania Law Review - No. 1, November 1960 - p. 67, 
62 Harvard Law Review 77, 40 Cornell Law Quarterly 195).

Ill

THE STATUTE AS ADMINISTERED DOES NOT VIO­
LATE THE CONSTITUTIONAL PROTECTION OF 
FREEDOM OF SPEECH.

We assume here that the Petitioners are dealing with the 
principles of the First Amendment insofar as they may be 
incorporated in the Fourteenth Amendment. The evidence 
shows that Petitioners exercised their right of free speech 
to the fullest extent. Petitioners and their adherents had 
for days been exercising their right to protest and the right 
of freedom of speech by writings and slogans on placards 
which they carried up and down the streets in front of the 
stores. This was certainly true in the AVENT case and in 
both cases there is no evidence to show that they had been 
restrained in any manner in the exercise of this right. The 
use of the streets and sidewalks of the town and city con­



14

cerned had been utilized by Petitioners in the AYENT case 
and there is no reason to believe that any restraints would 
have been placed upon Petitioners in the exercise of free 
speech in any proper place. Of course, free speech is not a 
mighty shield that insulates a person from liability in all 
types of criminal conduct. Such a logic would extend free 
speech as a protection from the penalty of murder and would 
act as a complete and conclusive defense for the commission 
of all criminal acts. This is explained by a paragraph in 
KOVACS v. COOPER, 336 U. S. 77, where this Court said:

“Of course, even the fundamental rights of the Bill of 
Rights are not absolute. The SAIA case recognized that 
in this field by stating ‘The hours and place of public 
discussion can be controlled.’ It was said decades ago 
in an opinion of this Court delivered by Mr. Justice 
Holmes, SCHENCK v. UNITED STATES, 249 U. S. 47, 
52, 63 L. Ed 470, 473, 39 S Ct 247, that: ‘The most 
stringent protection of free speech would not protect 
a man in falsely shouting fire in a theatre and causing 
a panic. It does not even protect a man from an in­
junction against uttering words that may have all the 
effect of force.’

“Hecklers may be expelled from assemblies and relig­
ious worship may not be disturbed by those anxious 
to preach a doctrine of atheism. The right to speak one’s 
mind would often be an empty privilege in a place and 
at a time beyond the protecting hand of the guardians 
of public order.”

In the case of MILK WAGON DRIVERS UNION v. 
MEADOWMOOR DAIRIES, 312 U. S. 287, 61 S. Ct. 552, 85 
L. ed 836, the Court sustained an injunction against picket­
ing where there was a history of past violence against a 
plea of freedom of speech and distinguished the case from 
that of THORNHILL v. ALABAMA, cited by the Petition­
ers, and said:

“This is precisely the kind of situation which the Thorn­
hill opinion excluded from its scope. ‘We are not now



15

concerned with picketing en masse or otherwise con­
ducted which might occasion such imminent and ag­
gravated danger . . .  as to justify a statute narrowly 
drawn to cover the precise situation giving rise to the 
danger.’ 310 U. S. 105, 84 L. Ed. 1104, 60 S. Ct. 736. We 
would not strike down a statute which authorized the 
courts of Illinois to prohibit picketing when they should 
find that violence had given to the picketing a coersive 
effect whereby it would operate destructively as force 
and intimidation. Such a situation is presented by this 
record. It distorts the meaning of things to generalize 
the terms of an injunction derived from and directed 
towards violent misconduct as though it were an ab­
stract prohibition of all picketing wholly unrelated to 
the violence involved.”

We shall not burden the Court with further citations from 
case law but it is sufficient to say that the injuctions 
sustained by this Court in labor disputes where violence 
and destruction of property were involved are certainly not 
constitutionally invalid because those who were engaged in 
picketing carried banners and mottoes and other writings 
in the exercise of communications and freedom of speech.

The case of MARSH v. ALABAMA, supra, is no excep­
tion to this rule. The defendants in the MARSH case were 
distributing religious literature and engaged in talking to 
persons on the streets of a company-owned town. They were 
not in stores interfering with the businesses of private pro­
prietors. The Supreme Court of the United States simply 
said that where a company owned the streets and sidewalks 
the people of the town were compelled to use them in com­
munity affairs, that these streets and sidewalks were con­
stitutionally dedicated to the public in the same manner as 
the streets of a municipal corporation.



16

IV

CONCLUSION

This Court in these cases is being asked to take a step 
which has never before been taken with reference to the use 
and enjoyment of property rights. To grant the request of 
the Petitioners opens the door to the socialization of all 
property and would mean that while a proprietor may 
have the privilege of holding the bare legal title yet the 
property would be subjected by the State to so many social 
demands that it would be almost analogous to property 
held in the corporative state organized and administered 
for awhile by Mussolini. Petitioners realize that their logic, 
as derived from their premises, leads to great extremes and 
they try to hedge against these extremes. For example, must 
the Petitioners be given entrance to the office of the man­
ager and must they be allowed to go to the stockroom? 
Suppose the clerks tell Petitioners that they do not have 
certain articles and the Petitioners think they can find some 
of the articles in the stockroom, can they go to the stock- 
room over the p r o t e s t  of the management? Suppose 
private properietors are compelled to sell to Petitioners, at 
what price must they sell? If a private properietor sold 
articles or food to his friends at no cost or at a cheaper 
rate than usual, would this violate Petitioners’ civil rights? 
Under their own theory, why should not Petitioners be 
allowed to enter into any private home they desire so long 
as they say that they are protesting and exercising free 
speech? The Petitioners’ request should not be granted un­
less the Court thinks we should have a completely socialized 
state. There should be left to an individual some property 
rights that he can call his own or else why should we have 
the institution of private property. We ask the Court not 
to take such a step and in this connection we again remind 
the Court of the langauage this Court used in civil rights 
cases (109 U.S. 3) when it said:

“When a man has emerged from slavery, and by the aid 
of beneficient legislation has shaken off the inseparable 
concomitants of that state, there must be some stage



17

in the progress of his elevation when he takes the rank 
of a mere citizen, and ceases to be the special favorite of 
the laws, and when his rights, as a citizen or a man, 
are to be protected in the ordinary modes by which other 
men’s rights are protected.”

Respectfully submitted,

T. W. BRUTON
Attorney General of North Carolina

RALPH MOODY
Assistant Attorney General

Justice Building 
Raleigh, North Carolina

Counsel for the State of North Carolina 
Respondent