# United States v. Guest/Dissent Brennan

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United States Supreme Court
383 U.S. 745
UNITED STATES, Appellant, v. Herbert GUEST et al.
Argued: Nov. 9, 1965. --- Decided: March 28, 1966
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, concurring in part and dissenting in part.
I join Part I of the Court's opinion. I reach the same result as the Court on that branch of the indictment discussed in Part III of its opinion but for other reasons. See footnote 3, infra. And I agree with so much of Part II as construes 18 U.S.C. § 241 (1964 ed.) to encompass conspiracies to injure, oppress, threaten or intimidate citizens in the free exercise or enjoyment of Fourteenth Amendment rights and holds that, as so construed, § 241 is not void for indefiniteness. I do not agree, however, with the remainder of Part II which holds, as I read the opinion, that a conspiracy to interfere with the exercise of the right to equal utilization of state facilities is not, within the meaning of § 241, a conspiracy to interfere with the exercise of a 'right * * * secured * * * by the Constitution' unless discriminatory conduct by state officers is involved in the alleged conspiracy.
The second numbered paragraph of the indictment charges that the defendants conspired to injure, oppress, threaten, and intimidate Negro citizens in the free exercise and enjoyment of '(t)he right to the equal utilization, without discrimination upon the basis of race, of public facilities * * * owned, operated or managed by or on behalf of the State of Georgia or any subdivision thereof.' Appellees contend that as a matter of statutory construction § 241 does not reach such a conspiracy. They argue that a private conspiracy to interfere with the exercise of the right to equal utilization of the state facilities described in that paragraph is not, within the meaning of § 241, a conspiracy to interfere with the exercise of a right 'secured' by the Fourteenth Amendment because 'there exist no Equal Protection Clause rights against wholly private action.'
The Court deals with this contention by seizing upon an allegation in the indictment concerning one of the means employed by the defendants to achieve the object of the conspiracy. The indictment alleges that the object of the conspiracy was to be achieved, in part, '(b)y causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts * * *.' The Court reads this allegation as 'broad enough to cover a charge of active connivance by agents of the State in the making of the 'false reports,' or other conduct amounting to official discrimination clearly sufficient to constitute denial of rights protected by the Equal Protection Clause,' and the Court holds that this allegation, so construed, is sufficient to 'prevent dismissal of this branch of the indictment.' I understand this to mean that, no matter how compelling the proof that private conspirators murdered, assaulted, or intimidated Negroes in order to prevent their use of state facilities, the prosecution under the second numbered paragraph must fail in the absence of proof of active connivance of law enforcement officers with the private conspirators in causing the false arrests.
Hence, while the order dismissing the second numbered paragraph of the indictment is reversed, severe limitations on the prosecution of that branch of the indictment are implicitly imposed. These limitations could only stem from an acceptance of appellees' contention that, because there exist no Equal Protection Clause rights against wholly private action, a conspiracy of private persons to interfere with the right to equal utilization of state facilities described in the second numbered paragraph is not a conspiracy to interfere with a 'right * * * secured * * * by the Constitution' within the meaning of § 241. In other words, in the Court's view the only right referred to in the second numbered paragraph that is, for purposes of § 241, 'secured * * * by the Constitution' is a right to be free-when seeking access to state facilities-from discriminatory conduct by state officers or by persons acting in concert with state officers.
I cannot agree with that construction of § 241. I am of the opinion that a conspiracy to interfere with the right to equal utilization of state facilities described in the second numbered paragraph of the indictment is a conspiracy to interfere with a 'right * * * secured * * * by the Constitution' within the meaning of § 241-without regard to whether state officers participated in the alleged conspiracy. I believe that § 241 reaches such a private conspiracy, not because the Fourteenth Amendment of its own force prohibits such a conspiracy, but because § 241, as an exercise of congressional power under § 5 of that Amendment, prohibits all conspiracies to interfere with the exercise of a 'right * * * secured * * * by the Constitution' and because the right to equal utilization of state facilities is a 'right * * * secured * * * by the Constitution' within the meaning of that phrase as used in § 241.
My difference with the Court stems from its construction of the term 'secured' as used in § 241 in the phrase a 'right * * * secured * * * by the Constitution or laws of the United States.' The Court tacitly construes the term 'secured' so as to restrict the coverage of § 241 to those rights that are 'fully protected' by the Constitution or another federal law. Unless private interferences with the exercise of the right in question are prohibited by the Constitution itself or another federal law, the right cannot, in the Court's view, be deemed 'secured * * * by the Constitution or laws of the United States' so as to make § 241 applicable to a private conspiracy to interfere with the exercise of that right. The Court then premises that neither the Fourteenth Amendment nor any other federal law prohibits private interferences with the exercise of the right to equal utilization of state facilities.
In my view, however, a right can be deemed 'secured * * * by the Constitution or laws of the United States,' within the meaning of § 241, even though only governmental interferences with the exercise of the right are prohibited by the Constitution itself (or another federal law). The term 'secured' means 'created by, arising under, or dependent upon,' Logan v. United States, 144 U.S. 263, 293, 12 S.Ct. 617, 626, 36 L.Ed. 429, rather than 'fully protected.' A right is 'secured * * * by the Constitution' within the meaning of § 241 if it emanates from the Constitution, if it finds its source in the Constitution. Section 241 must thus be viewed, in this context, as an exercise of congressional power to amplify prohibitions of the Constitution addressed, as is invariably the case, to government officers; contrary to the view of the Court, I think we are dealing here with a statute that seeks to implement the Constitution, not with the 'bare terms' of the Constitution. Section 241 is not confined to protecting rights against private conspiracies that the Constitution or another federal law also protects against private interferences. No such duplicative function was envisioned in its enactment. See Appendix in United States v. Price, 383 U.S. 807, 86 S.Ct. 1163. Nor has this Court construed § 241 in such a restrictive manner in other contexts. Many of the rights that have been held to be encompassed within § 241 are not additionally the subject of protection of specific federal legislation or of any provision of the Constitution addressed to private individuals. For example, the prohibitions and remedies of § 241 have been declared to apply, without regard to whether the alleged violator was a government officer, to interferences with the right to vote in a federal election, Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, or primary, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; the right to discuss public affairs or petition for redress of grievances, United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, cf. Hague v. CIO, 307 U.S. 496, 512-513, 59 S.Ct. 954, 962-963, 83 L.Ed. 1423 (opinion of Roberts, J.); Collins v. Hardyman, 341 U.S. 651, 663, 71 S.Ct. 937, 942, 96 L.Ed. 1253 (dissenting opinion); the right to be protected against violence while in the lawful custody of a federal officer, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; and the right to inform of violations of federal law, In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080. The full import of our decision in United States v. Price, 383 U.S. 787, at pp. 796-807, 86 S.Ct. 1152, at pp. 1158 1163, regarding § 241 is to treat the rights purportedly arising from the Fourteenth Amendment in parity with those rights just enumerated, arising from other constitutional provisions. The reach of § 241 should not vary with the particular constitutional provision that is the source of the right. For purposes of applying § 241 to a private conspiracy, the standard used to determine whether, for example, the right to discuss public affairs or the right to vote in a federal election is a 'right * * * secured * * * by the Constitution' is the very same standard to be used to determine whether the right to equal utilization of state facilities is a 'right * * * secured * * * by the Constitution.'
For me, the right to use state facilities without discrimination on the basis of race is, within the meaning of § 241, a right created by, arising under and dependent upon the Fourteenth Amendment and hence is a right 'secured' by that Amendment. It finds its source in that Amendment. As recognized in Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664, 'The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights * * *.' The Fourteenth Amendment commands the State to provide the members of all races with equal access to the public facilities it owns or manages, and the right of a citizen to use those facilities without discrimination on the basis of race is a basic corollary of this command. Cf. Brewer v. Hoxie School District No. 46, etc., 238 F.2d 91 (C.A.8th Cir. 1956). Whatever may be the status of the right to equal utilization of privately owned facilities, see generally Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822, it must be emphasized that we are here concerned with the right to equal utilization of public facilities owned or operated by or on behalf of the State. To deny the existence of this right or its constitutional stature is to deny the history of the last decade, or to ignore the role of federal power, predicated on the Fourteenth Amendment, in obtaining nondiscriminatory access to such facilities. It is to do violence to the common understanding, an understanding that found expression in Titles III and IV of the Civil Rights Act of 1964, 78 Stat. 246, 42 U.S.C. §§ 2000b, 2000c (1964 ed.), dealing with state facilities. Those provisions reflect the view that the Fourteenth Amendment creates the right to equal utilization of state facilities. Congress did not preface those titles with a provision comparable to that in Title II explicitly creating the right to equal utilization of certain privately owned facilities. Congress rightly assumed that a specific legislative declaration of the right was unnecessary, that the right arose from the Fourteenth Amendment itself.
In reversing the District Court's dismissal of the second numberee paragraph, I would therefore hold that proof at the trial of the conspiracy charged to the defendants in that paragraph will establish a violation of § 241 without regard to whether there is also proof that state law enforcement officers actively connived in causing the arrests of Negroes by means of false reports.
My view as to the scope of § 241 requires that I reach the question of constitutional power-whether § 241 or legislation indubitably designed to punish entirely private conspiracies to interfere with the exercise of Fourteenth Amendment rights constitutes a permissible exercise of the power granted to Congress by § 5 of the Fourteenth Amendment 'to enforce, by appropriate legislation, the provisions of' the Amendment.
A majority of the members of the Court expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy. Although the Fourteenth Amendment itself, according to established doctrine, 'speaks to the State or to those acting under the color of its authority,' legislation protecting rights created by that Amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, § 5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection. It made that determination in enacting § 241, see the Appendix in United States v. Price, 383 U.S. 807, 86 S.Ct. 1163, and, therefore § 241 is constitutional legislation as applied to reach the private conspiracy alleged in the second numbered paragraph of the indictment.
I acknowledge that some of the decisions of this Court, most notably an aspect of the Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835, have declared that Congress' power under s 5 is confined to the adoption of 'appropriate legislation for correcting the effects of * * * prohibited state law and state acts, and thus to render them effectually null, void, and innocuous.' I do not accept-and a majority of the Court today rejects-this interpretation of § 5. It reduces the legislative power to enforce the provisions of the Amendment to that of the judiciary; and it attributes a far too limited objective to the Amendment's sponsors. Moreover, the language of § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment are virtually the same, and we recently held in State of South Carolina v. Katzenbach, 383 U.S. 301, at 326, 86 S.Ct. 803, at 817, that '(t)he basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States.' The classic formulation of that test by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579, was there adopted:
'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the latter and spirit of the constitution, are constitutional.'
It seems to me that this is also the standard that defines the scope of congressional authority under § 5 of the Fourteenth Amendment. Indeed, State of South Carolina v. Katzenbach approvingly refers to Ex parte State of Virginia, 100 U.S. 339, 345-346, 25 L.Ed. 676, a case involving the exercise of the congressional power under § 5 of the Fourteenth Amendment, as adopting the McCulloch v. Maryland formulation for 'each of the Civil War Amendments.'
Viewed in its proper perspective, § 5 of the Fourteenth Amendment appears as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens. Non one would deny that Congress could enact legislation directing state officials to provide Negroes with equal access to state schools, parks and other facilities owned or operated by the State. Nor could it be denied that Congress has the power to punish state officers who, in excess of their authority and in violation of state law, conspire to threaten, harass and murder Negroes for attempting to use these facilities. And I can find no principle of federalism nor word of the Constitution that denies Congress power to determine that in order adequately to protect the right to equal utilization of state facilities, it is also appropriate to punish other individuals-not state officers themselves and not acting in concert with state officers-who engage in the same brutal conduct for the same misguided purpose.
Section 241 is certainly not model legislation for punishing private conspiracies to interfere with the exercise of the right of equal utilization of state facilities. It deals in only general language 'with Federal rights, and with all Federal rights' and protects them 'in the lump,' United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355; it protects in most general terms 'any right or privilege so secured * * * by the Constitution and laws of the United States.' Congress has left it to the courts to mark the bounds of those words, to determine on a case-by-case basis whether the right purportedly threatened is a federal right. That determination may occur after the conduct charged has taken place or it may not have been anticipated in prior decisions; 'a penumbra of rights may be involved, which none can know until decision has been made and infraction may occur before it is had.' Reliance on such wording plainly brings § 241 close to the danger line of being void for vagueness.
But, as the Court holds, a stringent scienter requirement saves § 241 from condemnation as a criminal statute failing to provide adequate notice of the proscribed conduct. The gravamen of the offense is conspiracy, and therefore, like a statute making certain conduct criminal only if it is done 'willfully,' § 241 requires proof of a specific intent for conviction. We have construed § 241 to require proof that the persons charged conspired to act in defiance, or in reckless disregard, of an announced rule making the federal right specific and definite. United States v. Williams, 341 U.S. 70, 93 95, 71 S.Ct. 581, 593-595, 95 L.Ed. 758 (opinion of Douglas, J.); Screws v. United States, 325 U.S. 91, 101-107, 65 S.Ct. 1031, 1035 1038, 89 L.Ed. 1495 (opinion of Douglas, J.) (involving the predecessor to 18 U.S.C. § 242). Since this case reaches us on the pleadings, there is no occasion to decide now whether the Government will be able on trial to sustain the burden of proving the requisite specific intent vis-a -vis the right to travel freely from State to State or the right to equal utilization of state facilities. Compare James v. United States, 366 U.S. 213, 221-222, 81 S.Ct. 1052, 1056-1057, 6 L.Ed.2d 246 (opinion of Warren, C.J.). In any event, we may well agree that the necessity to discharge that burden can imperil the effectiveness of § 241 where, as is often the case, the pertinent constitutional right must be implied from a grant of congressional power or a prohibition upon the exercise of governmental power. But since the limitation on the statute's effectiveness derives from Congress' failure to define-with any measure of specificity-the rights encompassed, the remedy is for Congress to write a law without this defect. To paraphrase my Brother Douglas' observation in Screws v. United States, 325 U.S. at 105, 65 S.Ct. at 1037, 89 L.Ed. 1495, addressed to a companion statute with the same shortcoming, if Congress desires to give the statute more definite scope, it may find ways of doing so.

## Notes

* ↑ As I read the indictment, the allegation regarding the false arrest relates to all the other paragraphs and not merely, as the Court suggests, to the second numbered paragraph of the indictment. See n. 1 in the Court's opinion. Hence, assuming that, as maintained by the Court, the allegation could be construed to encompass discriminatory conduct by state law enforcement officers, it would be a sufficient basis for preventing the dismissal of each of the other paragraphs of the indictment. The right to be free from discriminatory conduct by law enforcement officers while using privately owned places of public accommodation (paragraph one) or while traveling from State to State (paragraphs three and four), or while doing anything else, is unquestionably secured by the Equal Protection Clause. It would therefore be unnecessary to decide whether the right to travel from State to State is itself a right secured by the Constitution or whether paragraph one is defective either because of the absence of an allegation of a racial discriminatory motive or because of the exclusive remedy provision of the Civil Rights Act of 1964, § 207(b), 78 Stat. 246, 42 U.S.C. § 2000a-6(b) (1964 ed.).
* ↑ I see no basis for a reading more consistent with my own view in the isolated statement in the Court's opinion that 'the rights under the Equal Protection Clause described by this paragraph (two) of the indictment have been * * * firmly and precisely established by a consistent line of decisions in this Court * * *.'
* ↑ Similarly, I believe that § 241 reaches a private conspiracy to interfere with the right to travel from State to State. I therefore need not reach the question whether the Constitution of its own force prohibits private interferences with that right; for I construe § 241 to prohibit such interferences, and as so construed I am of the opinion that § 241 is a valid exercise of congressional power.
* ↑ This premise is questionable. Title III of the Civil Rights Act of 1964, 78 Stat. 246, 42 U.S.C. § 2000b (1964 ed.), authorizes the Attorney General on complaint from an individual that he is 'being denied equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision,' to commence a civil action 'for such relief as may be appropriate' and against such parties as are 'necessary to the grant of effective relief.' Arguably this would authorize relief against private parties not acting in concert with state officers. (This title of the Act does not have an exclusive remedy similar to § 207(b) of Title II, 42 U.S.C. § 2000a-6(b).)
* ↑ 'All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.' 42 U.S.C. § 2000a(a) (1964 ed.).
* ↑ The majority consists of the Justices joining my Brother CLARK'S opinion and the Justice joining this opinion. The opinion of Mr. Justice STEWART construes § 241 as applied to the second numbered paragraph to require proof of active participation by state officers in the alleged conspiracy and that opinion does not purport to deal with this question.
* ↑ Congress, not the judiciary, was viewed as the more likely agency to implement fully the guarantees of equality, and thus it could be presumed the primary purpose of the Amendment was to augment the power of Congress, not the judiciary. See James, The Framing of the Fourteenth Amendment 184 (1956); Harris, The Quest for Equality 53-54 (1960); Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353, 1356 (1964).
* ↑ As the first Mr. Justice Harlan said in dissent in the Civil Rights Cases, 109 U.S. at 54, 3 S.Ct. at 52, 27 L.Ed. 835: 'It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights, as citizens, was to be apprehended, not altogether from unfriendly state legislation, but from the hostile action of corporations and individuals in the states. And it is to be presumed that it was intended, by that section (§ 5), to clothe congress with power and authority to meet that danger.' See United States v. Price, 383 U.S. 787, at 803 806, 86 S.Ct. 1152, at 1161-1163, and Appendix.
* ↑ United States v. Price, 383 U.S. 787, 86 S.Ct. 1152. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.
* ↑ Cf. Heart of Atlanta Motel v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258, applying the settled principle expressed in United States v. Darby, 312 U.S. 100, 118, 61 S.Ct. 451, 459, 85 L.Ed. 609, that the power of Congress over interstate commerce 'extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end * * *.'
* ↑ Mr. Justice Rutledge in Screws v. United States, 325 U.S. at 130, 65 S.Ct. at 1050.
* ↑ Ante, pp. 753-754. See generally, Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367; American Communications Assn. v. Douds, 339 U.S. 382, 412 413, 70 S.Ct. 674, 690-692, 94 L.Ed. 925; United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 378-379, 86 L.Ed. 383; Gorin v. United States, 312 U.S. 19, 27-28, 61 S.Ct. 429, 433-434, 85 L.Ed. 488; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 501-503, 45 S.Ct. 141, 142-143, 69 L.Ed. 402; Omaechevarria v. State of Idaho, 246 U.S. 343, 348, 38 S.Ct. 323, 325, 62 L.Ed. 763.
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