Earl Warren: -- Garner et al., Petitioners, versus Louisiana, Number 27 Mary Briscoe et al., Petitioners, versus Louisiana, Number 28, Jannette Hoston et al., Petitioners, versus Louisiana. Mr. Greenberg, you may continue your arguments.
Felix Frankfurter: Mr. Greenberg, before you begin your argument, clear up some ignorance I have about Louisiana law. It was during -- with any one of them, the Briscoe, I haven't had Briscoe record before me, on Page 56, the Supreme Court of Louisiana said, “The Court is without jurisdictions to review facts in criminal cases.” The copy of the Louisiana Constitution that I (Inaudible) on a surface reading and the reading of the English words denied jurisdiction perhaps the -- perhaps I should ask the Attorney General or the counsel for Louisiana in this case, denied jurisdiction in criminal cases except for death or life sentence and $300 and six months fine, is that right?
Jack Greenberg: I believe so, sir, yes.
Felix Frankfurter: Well then, I don't see that it has this jurisdiction with the facts of law in this case, but in the second -- and the second question, perhaps also the Attoney General who can enlightened me on, the case of --
Jack Greenberg: Well, I --
Felix Frankfurter: -- am I right about that, Mr. Greenberg?
Jack Greenberg: Well, I have nearly accepted the statement of the State Supreme Court on those points, Your Honor.
Felix Frankfurter: Yes.
Jack Greenberg: I think you --
Felix Frankfurter: But if you -- if they -- if you see Article 7 Section 10 of Louisiana Constitution of 1921, well, if you go and look at it, I find at least in my copy, I don't (Inaudible) copy that the jurisdiction doesn't exist unless it would be the -- a death or a life sentence or the $300 fine and six months sentence, not potential sentences but actually sentences that have been imposed, you know, so I have trouble with that. And the second one, am I right that the case of the ruling of the District Judge on matters of law are not erroneous? Am I right that the case which they cite, Ponchatoula, if that's the way to pronounce it, came up before the Supreme Court on an abstract, what I would call a question whether the statute on its face is unconstitutional?
Jack Greenberg: That's correct, Your Honor, and they said that the statute was not -- it was city ordinance, it was not unconstitutionally vague in that --
Felix Frankfurter: They've told that before --
Jack Greenberg: That's right.
Felix Frankfurter: Not what's -- what underlying facts there were to that judgment, sentence. I ask these questions at the outset, because for me, they have great barring upon the course of this decision.
Jack Greenberg: Yes, sir. The Ponchatoula decision, as I -- I have it right here. But as I recall it, certainly, it's just on the face of the city ordinance which was a disorderly conduct.
Felix Frankfurter: No discussions on the facts because I suppose they were precluded by the constitutional provision which allowed them to review merely questions of law, whether they conceived to the questions of law.
Jack Greenberg: Well, that's --
Felix Frankfurter: That's right, isn't it?
Jack Greenberg: Yes.
Felix Frankfurter: Alright. That's the -- I think the Attorney General of the State may have further enlighten it.
Jack Greenberg: When the Court adjourned yesterday, I was reviewing the record in Number 26, the Garner case. And we had just reviewed the testimony of the store manager which amounted to the fact that the students had appeared at the store, had asked for coffee and that the police arrived, the manager hadn't call them, the police had not consulted with the manager, and the police arrested the students. Captain Wiener, the police officer, who -- the police captain who made the arrests in each of these three cases, testified in this case as he did in the others, that he received a call at the police headquarters from the officer on the beat and I'm referring to page 34 of the record. He told me that there were two Negroes sitting at the lunch counter at Sitman's Drugstore. I told them to just standby until he arrived. They immediately went to the store within less than 10 minutes, spoke to the students, Major Bauer approached them and told them that they were violating the law by sitting there and asked them to leave and when they refused to leave, Major Bauer arrested them. The police captain was asked why he arrested them, what law were they violating, and he said, “By the fact that they were sitting at a counter that was reserved for white people.” And he was pressed on this point saying now, “Just what law was that?” And he said, “The law said that this place was reserved for white people and only white people can sit there,” and that was the reason they were arrested. Further pressed on the point, he said, “They have a law here. I believe that covered such a situation.” And then he was driven back to saying, that law at the bottom of page 35 of the record, “Is the “disturbing the peace” law.” And when asked how were they disturbing the peace on page 36 of the record, he answered affirmatively to a question which was, “The mere presence of these Negro defendants sitting at this café counter seat reserved for white folks was violating the law, is that what you are saying?” And so that is what constituted the violation of the law in Number 26. On the basis of this record and this is the entire transcript of testimony that I've summarized and I believe accurately, the trial court made a finding of guilt and that was, it appears on page 37 of the record, it occupies about of half a page, these two accused who are in this place of business on the date alleged, they were seated at the counter, they were not served, the officers were called, they arrived, they informed the accused they would have to leave, and they refused to leave, whereupon the officers placed them under arrest under Section 103 (7). And the court was convinced by this beyond a reasonable doubt that these two defendants on this occasion at that time and place performed an act done in a manner calculated to and actually did unreasonably disturbed and alarmed the public. The basis on of this finding of guilt, the court sentenced the petitioners to 30 days imprisonment, a $100 fine, and upon default of the payment of $100, they would have to serve 90 days in jail which would run consecutively with the 30.
John M. Harlan II: Did they -- they did have (Inaudible)?
Jack Greenberg: Yes, it's cited in the Government's brief, I believe on page 32. Well, is it on -- it's said in the Government's brief.
Felix Frankfurter: What was the effect of Section 63 in the criminal code, R.S. 14:63?
Jack Greenberg: Yes. Yes, sir.
Earl Warren: That's in existence at the time of this --
Jack Greenberg: The old trespass statute --
Earl Warren: It pertains to the old trespass --
Jack Greenberg: Yes it was.
Earl Warren: -- the trespass statute.
Jack Greenberg: Yes it was. The petitioner sought review in the State Supreme Court on appropriate writs under Louisiana law and review was denied in the two sentence opinion which we just referred to a moment ago. They obtained stays of execution and came here for a petition for writ of certiorari. The record in Number 27, the Briscoe case is in many respects similar. It involves a sit-in of students of Southern University at the Greyhound Bus Terminal in Baton Rouge, Louisiana. The information is identical to the information in the Garner case. The testimony is of course slightly different and I'll briefly review the testimony in the Briscoe case. The waitress testified that she was in the bus terminal on March 29 when the defendants in the case came in. She testified they came in there and I'm reading from page 30, and they sit down on the front seven seats and they start ordering and I told them they would have to go to the other side to be served. And then when asked why, she said, “The colored people are supposed to be on the other side.” And then she said I, further on page 31, there are similar testimony, and she then testified that when -- they would not seek service on the other side to, “We called the police and told them to come get them.” It's not quite clear and that it is not further elucidated in the record who called the police or what the police were told. She was then questioned concerning the scope of her authority, what it was that she was authorized to do in case Negroes sought service at the white lunch counter. And she described her authority as follows, “Merely amounted to authority to tell them that if they wanted service, they could obtain it at the Negro lunch counter.” Apparently, it did not go beyond that. On page 32 of the record, slightly below the middle of the page, in quoting her superior, describing what her superior authorized her to say, he said, “She just said for us to refuse service to anyone” and they came in there and sit down and we have a place in the other side for them to be served at, and they came in there and sit down and I told them they would have to go to the other side to be served” and she said something to the same effect at the bottom of that page.
Speaker: At page 32?
Jack Greenberg: 32, yes. Now --
Earl Warren: Did the superior testify?
Jack Greenberg: The superior did not testify and so the testimony amounts to, we submit, that she had authority to and merely told them that if they wanted service, they would have to go to the other side to get it. Although in response to other questions, she creates some ambiguity and makes it appear that perhaps she also told them -- she also gave them a direction to go to the other side. However, we construe this testimony and we feel that in view of the constitutional questions involved and the scope of her authority, this Court should read this testimony as meaning clearly what we think it does mean that she told them if they wanted service, they would have to obtain it on the other side. In any event, the police officers arrived. The police officers are not clear as to who called them. Apparently, it was a bus driver or some woman. They did not consult with the waitress. They went immediately to the students at the counter and as Captain Wiener who appeared in the first case testified, “Inspector Bauer received a call from some woman at the bus terminal, Inspector Bauer, myself proceeded to the bus station with some officers, and saw these people sitting at the lunch counter.” That's at the bottom of 34. And he said, at the top of 35, “This lunch counter was reserved for white people.” Inspector Bauer spoke to them and told -- and after he spoke to them the second time, told them that they were under arrest. They came along peacefully. When he was asked how he knew that was a counter for white people. He said, “Well, that's pretty obvious from the people there.” “Why did you arrest them officer?“ On 36, “In my opinion, they were disturbing the peace.” “Within your opinion, explain your opinion” and he says, in language almost identical to that he uses in the other two cases, “The fact that their presence was there in the section reserved for white people, I felt that they were disturbing the peace of the community” and on 38, “In what way were they disturbing the peace?” Answer, “By the mere presence of them being there.” There is no allegation or no testimony concerning anything else other than the mere presence of them being there.
Felix Frankfurter: Was there an existing Louisiana statute which explicitly precluded the mixture of the races?
Jack Greenberg: No, sir.
Felix Frankfurter: In any one of these to your establishment?
Jack Greenberg: No, sir. Neither where there is --
Felix Frankfurter: So that the disturbance to be found for -- either by the arresting officer or the basis of conviction must derive from the circumstances unaided by any specific declaration of public policy in the form of a statute.
Jack Greenberg: Well, there is no specific statute Mr. Justice Frankfurter.
Felix Frankfurter: That's -- that's my question.
Jack Greenberg: There is, however, as we have cited in our brief a resolution of the Louisiana legislature stating segregation is the policy of this state --
Felix Frankfurter: I understand that --
Jack Greenberg: -- in 1960.
Felix Frankfurter: -- but these are the statutes --
Jack Greenberg: No, sir.
Felix Frankfurter: The specific terms -- never mind, for the moment whether constitutional or not, the point of view of state officers was there a statute which as such violated by the student there?
Jack Greenberg: No, sir. The Court's finding which is on page 38 and 39 of the record rests on two legs and they are, as I think a plain reading indicates, independent of each other. The Court finds them guilty as charged for the reason that from the evidence in this case, their actions in sitting on stools in this place of business when they were requested to leave and they refused to leave –-
Hugo L. Black: Which –-
Jack Greenberg: The bottom of 38 in Briscoe, Number 27 and the Court then finds, in addition, the officers were called, the officers requested them to leave and they still refused to leave. Their actions in that regard in the opinion of the Court, was an act on their part was unreasonably disturbed and alarmed the public. So they were found guilty because they did not leave as the Court found when the waitress asked them to leave and because they did not leave when the police, as an independent matter, asked them to leave.
Earl Warren: Mr. Greenberg, may I ask you for it is your position in these cases that there is no evidence of violation of this particular statute and therefore the case comes under Thompson versus Louisville.
Jack Greenberg: Yes, sir. That's our first position.
Earl Warren: The first position.
Jack Greenberg: And our alternative position is that, if that's not true or even if that is true, these -- these records must be read as indicating that as a matter of law, Louisiana courts have said that the mere presence of the Negro at white lunch counter is a disturbance of the peace and that is also unconstitutional.
Earl Warren: But it does come within the Louisville -- the Thompson versus Louisville, would that not be dispositive for the case?
Jack Greenberg: That could dispose of the case, Your Honor. I believe that this is a case which can be disposed of on a number of different grounds and there is the question suggested by the Government's brief as to what perhaps should be the narrowest ground of disposition. And it would be presumptuous for me to really suggest what I thought would be the narrowest ground of disposition. However, I do believe that the narrowest ground of disposition would be one based upon the fact that these people were arrested solely because they were Negroes at a white lunch counter, that any other ground of disposition suggested here, while equally valid, would have ramifications in many other areas of the law whereas this is so settled and so clear-cut, it would be, in my view, the narrowest ground, but I would do no more than suggest that.
William J. Brennan, Jr.: Mr. Greenberg, the second -- the second position is upon due process or equal protection?
Jack Greenberg: I think you could say it's due process and equal protection or primarily equal protection, yes sir. I would say that the narrowest ground for disposition of this case in my view is that these police officers came in there and on their own saw these Negro students sitting at the lunch counter and arrested them solely because they were Negroes at the lunch counter and that in of itself constituted disturbance of the peace.
Charles E. Whittaker: Within the same time, would you then have say that there was no evidence to support the Court's finding, that the people were ordered out and refused to go?
Jack Greenberg: I don't believe that's a necessary prerequisite. It does happen to be the situation in this case.
Charles E. Whittaker: Well, I was thinking --
Jack Greenberg: I would be prepared to argue the next position. I don't think we have to, to some extent, it's suggested as an issue and I feel that that situation is identical to the first situation. I do think, however, that these are records which clearly indicate -- some that you have to get from the tone of the record really, that these -- this police officer Captain Wiener was the head of a flying squad who appeared within ten minutes of notification that the Negroes are in the lunch counter and without consulting with anybody or doing or having any evidence of any violation of the law, just on his own, went in there, grabbed them and arrested them. I think these records support that factually and do convey the -- what I merely would call a tone of just how he was (Voice Overlap) --
William O. Douglas: In other words, you say it was a disturbance of the peace because by the police rather than made by the petitioners.
Jack Greenberg: Well, I haven't argued that. But I would certainly feel that way about it. Yes, sir.
Felix Frankfurter: Do you think that was a very narrow ground, wouldn't you?
Jack Greenberg: That would be an exceedingly narrow ground, yes sir.
Felix Frankfurter: Alright.[Laughter]
Charles E. Whittaker: (Inaudible) when ordered to leave and they choose to go? What (Inaudible)?
Jack Greenberg: In two of the cases, there is not a scintilla of evidence that anybody ordered them to leave.
Charles E. Whittaker: Yes.
Jack Greenberg: In the third case, I will have to be entirely candid and say that there is some evidence which if read in the context of the whole record, we believe, doesn't indicate what it purports to indicate that the waitress asked them to leave. However, we feel her testimony should be read that she did not ask them to leave, merely informed them that they could be served elsewhere, and then certainly her authority did not extend to demanding that they leave. And that in these cases therefore, we have a situation in which the police were the ones who asked them to leave, as certainly even in the middle case, 27, and that for the police officer, in fact, you might argue that for the police officer on his own to be going around enforcing a segregation practice is even -- is even more unconstitutional. That's possible than doing it according to a statute because at least, there, he has a command of the legislature. Here, he's taking the law into his own hands. And so it is the police going around enforcing segregation at lunch counters which we feel is the most apparent constitutional vice in these cases and we would submit with deference is the real narrow ground in these cases, because --
John M. Harlan II: I think --
Jack Greenberg: I don't think anything would be more clear.
John M. Harlan II: -- it's a private property, is it not, it was a private property, correct?
Jack Greenberg: Yes sir.
Speaker: (Inaudible)
Jack Greenberg: Yes sir, open -- places of public accommodation -- it's not a -- they are not places as private in nature but they are not publicly owned institution. Now, I do not have any reason to believe that they are.
Charles E. Whittaker: (Inaudible)
Jack Greenberg: Yes sir, these are places of public accommodation, completely open.
Charles E. Whittaker: (Inaudible)
Jack Greenberg: In two of cases, in the third case I think the record should be read -- that's our position in all three cases, yes.
Charles E. Whittaker: And the second case (Inaudible) was not -- that the petitioners were told to leave, clearly that they could not be served.
Jack Greenberg: Yes sir, that's how we read that testimony.
Charles E. Whittaker: Now, you read (Inaudible)
Jack Greenberg: That's in the third case. No, I read them all. I read the testimony the same in all three cases. The difference in the cases is this, I do not think it's a real difference that in the middle case, Briscoe number 27, there is a word or two of testimony that the waitress asked them to leave, to move. The only clear construction of that testimony in the light of all her other testimony is that she told them if they wanted to be served, they could go to the colored counter. But in any event, in all of the cases, quite apart from what any private person might have done, the police without consultation with any private person on their own went in there and ordered these people out. In fact, in the drug store case, the police officer didn't even know who the manager was, he just immediately went to the students and that appears to be the record in all three of the cases.
Charles E. Whittaker: Now, I thought this (Inaudible) counter to be served for colored people, asking no service.
Jack Greenberg: The Hoston case, there was no waitress testifying in that. That was the manager of the store Mr. Mathews. The waitress testified in the Briscoe.
Charles E. Whittaker: (Inaudible)
Jack Greenberg: Mr. Mathews, on page what?
William J. Brennan, Jr.: 29, 29.
Jack Greenberg: Where there -- 29, yes where there is a question. Yes that's clearly the Hoston case. They were certainly not requested to move. The problem and I fear that by the length of this discussion, I'm magnifying it into more than it really is because I don't believe it is a problem, is in the Briscoe case, the middle case, in which although she testified that I told them they would have to go to the other side to be served and then she testified because we're supposed to refuse the service of anyone that comes in there, she also later testified in response to a leading question which was, “Did you ask them to leave and so forth?” And she said, “Yes.” The bottom of 31, “Ms. Fletcher, is that the only reason you're asking them to leave is because they were Negroes?” And she said, “Yes, sir.” I think in the entire context of a testimony that merely means that she told them that they could go to the other counter if they wanted to be served. And I think our authority extended no further than that. And I think the finding of the Court based upon the police officers' independent demand to leave is the same as in all the other cases. In this case, too, the --
Potter Stewart: Are you still in 27?
Jack Greenberg: Yes I'm in Briscoe, Number 27. In this case to the seven students were sentenced to 30 days plus 90 days upon default of payment of $100 fine. They sought writs of certiorari and so forth in the State Supreme Court which is the appropriate mode of review. Review was denied in language identical to that used by the State Supreme Court. In the other cases, stays of execution were obtained except in the case of one student who had already been picked up by the Sheriff, writ for his release was obtained and these cases are here on certiorari as Number 26. Number 28 is the “sit-in” case involving Kress' Dime Store in Baton Rouge, and in this case, the testimony is similar and as Mr. Justice Whittaker indicated, when the manager testified, “Were they requested to move over to the counter reserved for colored people?” He said, “No sir, they were advised that we would serve them over there.” The manager in this case was so little disturbed by what happened. He was eating his meal at the counter when the students arrived. He finished his meal first, then he went to the telephone and he called the police, but he did not call the police to arrest them and he did not call the police because there was any disturbance. He said he called them merely as a cautionary measure because, “I feared some disturbance might occur because it isn't customary for the two races to sit together and eat together.” However, there was no testimony that any disturbance did occur. In fact as in the other cases, they were arrested as Captain Wiener testified again that -- here's the question, “Did these” -- on 37, “Did these defendants do anything other than sit at these particular Café counter seats that you would consider disturbing the peace who are in violation of any law?” Answer, “Well, other than the fact that one of them mentioned something about the iced water, nothing else was said” and then another question, “How are they disturbing the peace” and as in the other records, “By sitting there” “and that is because they were members of the Negro race?” Answer, “That was because that place was reserved for white people.” And on 38 and 39, the Court makes a finding similar to the finding of the other cases, though the findings in each case are in slightly different language and careful reading indicates that different facts were found in each such as -- in Garner, it was found that they actually did disturbed the peace and no such thing occurred in -- Briscoe was found, they actually would alarm the public and in this one, it was found they foreseeably could alarm the public. So there's some slight difference in language. No evidence of any of these different either it did, could, or would.
John M. Harlan II: From the standpoint of your argument, your constitutional argument as I understand it, do you think the factual distinction between these cases are insignificant or --?
Jack Greenberg: I think they're insignificant, however I candidly have to recognize that there is --
John M. Harlan II: There might --
Jack Greenberg: -- some evidence.
John M. Harlan II: There might be a difference between the cases if you had a trespass statute.
Jack Greenberg: Well, we would -- we would submit that the result would be the same --
John M. Harlan II: Well, that --
Jack Greenberg: -- part of it -- it would certainly be a different case.
John M. Harlan II: The factual distinction is -- would become pertinent perhaps in those circumstances whereas you claim they're not under this breach of the peace statute.
Jack Greenberg: That's right. They would be pertinent in a -- they would be pertinent in a trespass case in the sense that they would be at issue, we feel that the result would be the same, and that there has to be an answer to it and there is an answer to it. The Court does --
Charles E. Whittaker: (Inaudible) even in the trespass case, if I come in to your store, (Inaudible) a breach of peace. But if you didn't warn me off, that's another case, isn't it?
Jack Greenberg: Yes sir. Certainly we don't even reach that first question. And none of these cases where they ordered out as I think the records clearly indicate. Now, Number 28, the finding briefly is they were -- that they came in and they took seats at the lunch counter which by custom had been reserved for white people only. This is in the judgment. They were advised by an employee of that store, by the manager, that they would be served over at the other counter which was reserved for colored people. They did not accept that invitation. They remained seated at the counter which by custom had been reserved for white people. The officers were called and the officers talked to these accused or some of them and the defendants continued to remain seated at this particular counter. That testimony is uncontradicted and in the opinion of the Court, the action of these accused violated the statute which is cited in that the act in itself, they're sitting there and refusing to leave when requested to and this must refer to the police because he found and only could find that the manager didn't' request them to leave. When requested to, it was an act which foreseeably could alarm and disturb and public and therefore was a violation of that statute that I have just mentioned and these cases too, they received the same sentence. These cases too were taken for the State Supreme Court, stays were obtained and the case was here on certiorari. Now, the first argument of petitioner is that -- petitioners is that they were not convicted upon any records which contained any evidence that they had committed any other act in such a manner which unreasonably disturbed or alarmed the public. In fact, the only thing they were found guilty of, to quote the police officer, “it was the mere presence of their being there.” The statute with which we are concerned would not sustain the conviction of any white person sitting at these characters and indeed, the records indicate that white persons were sitting at the counters and the mere presence of they're being there did not constitute a crime. The statute has been construed once by the State Supreme Court in the case cited in all the briefs State v. Sanford and a case remarkably like this one, involving Jehovah's Witnesses in which Jehovah's Witnesses were engaged in their normal cosmetising activities. They had been ordered by the mayor to leave town because he was afraid that they would disturb persons of other religions there who were offended by their activities. They persisted in distributing these tracks and were rested under a predecessor's statute which is not materially different from this one. And the State Supreme Court held first that the application of the statute by the trial judge and the facts of this case and its construction thereof would render it unconstitutional under cases of this Court dealing with freedom of religion of Jehovah's Witness.
Felix Frankfurter: It isn't just like this case, in the first --
Jack Greenberg: Oh, no.
Felix Frankfurter: -- pardon me? The real distinction on (Inaudible) basis, the Sanford case dealt with behavior on the public street.
Jack Greenberg: Yes sir.
Felix Frankfurter: That already on enforcing that statute and secondly it dealt with an extradited religious views.
Jack Greenberg: Yes. Well, I perhaps overstated when I said it was just like this case. There are sufficient points of similarity to make it pertinent to this case.
Felix Frankfurter: It's certainly that.
Jack Greenberg: Yes. And the State Supreme Court held with respect to a finding that there had been a violation of what might we called the seventh subsection in this statute that is our opinion that the statute is an applicable to these case because it appears to the defendants did not commit any unlawful act or pursue an unlawful or disorderly course of conduct which would tend to disturb the peace and to further support our contention, we -- that the statute -- that these petitioners did not do anything which violates the statute. We just point to the plain language of the statute and the evidence of this case. And even more forcefully to the fact that it's obvious that the Supreme -- that the Louisiana Legislature did not think so in this case because they enacted the statutes which we referred to yesterday to quite apparently by their language to cover what we properly call “sit-in” demonstrations. And consequently, our first argument is, as we stated at the outset, that there is no evidence that these people, these petitioners committed any act which leaving questions of vagueness aside for a moment which any conceivable reading of subsection (7) indicates is a crime and the judgments below must fall as the denial of due process under this Court's decision in Thompson against Louisiana.
John M. Harlan II: So you have to start onto with the interpretation of the statute in order to assess the sufficiency of the evidence?
Jack Greenberg: Yes.
John M. Harlan II: And don't we have to take the statute, I'm not saying whether the interpretation is constitutional or not, don't we have to start with the premise that this case, skimpy as this record is, comes to us just as if there had been written into the Louisiana statue that going in to a private restaurant, if you segregate, and the sitting at a lunch counter and refusing to leave the lunch counter when requested by a police officer amounts to the breach of the peace, isn't that where we have --
Jack Greenberg: Yes sir, I think it ultimately does come down to that, though as in Thompson v. Louisville case --
John M. Harlan II: Then you can't say that if that statute is -- how can you say that if that sort of the statute is before us and assume it's constitutional, that there isn't enough evidence here to support the verdict?
Jack Greenberg: Well, I was arguing this -- I thought I made my position clear at the outset that if we accept the statute, absent reading this racial factor into it, which I don't think we can do, but if we accepted that way as in terms of any language, the Louisiana has elucidated in terms of legislative context, other cases' plain meaning and so forth, then we come under the Thompson case because in the Thompson case at some point, I imagine this Court has to make an interpretation of the statute. There's no -- there's no avoiding it.
John M. Harlan II: Well, we have to start with the state court's interpretation then?
Jack Greenberg: Yes, yes. But now, I say that this case therefore only can be read as you Mr. Justice Harlan have described that the mere presence of their being there, the Negro at a white lunch counter constitutes the breach of the peace.
John M. Harlan II: Then the question becomes not one of the sufficiency of the evidence, does it because these facts are there in the record, but rather one as to whether that kind of the statute is constitutional?
Jack Greenberg: Yes sir. And viewing it in that light, the question --
John M. Harlan II: In other words --
Jack Greenberg: -- that evidence is sufficient.
John M. Harlan II: -- the sufficiency how you can get writ of this case on Thompson against Louisville. That's where --
Jack Greenberg: Well, I don't either Your Honor. I don't --
John M. Harlan II: It is --
Jack Greenberg: I think --
Felix Frankfurter: What was your first point?
Jack Greenberg: Well if this Court -- if this Court read to the Louisiana statute as it appeared just in terms of its plain language and in terms of the Sanford case and in terms of this legislative -- subsequent legislative history then -- then, we can say that there was not sufficient evidence. However, in the alternative, you must say that these people were convicted of being Negroes at a white lunch counter.
Felix Frankfurter: An alternative is an alternative, but that would be (Inaudible) another one.
Jack Greenberg: Yes.
Felix Frankfurter: That's where it implies to which is consistently the original statement namely, that your first point is that the case is really the Thompson. I'm not arguing your case. You're arguing it yourself and that's what you told me a little while ago.
Jack Greenberg: Yes. If you exclude the racial aspect as -- as upon the face of the statute, Louisiana has purported to do, you can decide this on Thompson. If you read --
Felix Frankfurter: You excluded it making the argument.
Jack Greenberg: Yes, I did.
Felix Frankfurter: Alright.
Jack Greenberg: If -- if you exclude it and if it can be excluded, then you decide it on Thompson, but I think realistically speaking these people were convicted of being Negroes at a white lunch counter and consequently the convictions are defective under --
Felix Frankfurter: Realistically means importing the tone as you call it, tone -- the tone of the record.
Jack Greenberg: Well no, I don't think we have been to go that far to the tone of the record. I think actually these records indicate that what did they do -- the mere presence of their being there, and some of the findings say that they were Negroes sitting at a white lunch counter.
Potter Stewart: Well, under Justice Harlan's analysis, you could -- you could pose the question in Thompson against Louisville in that same way. You could say in that case, it was said it's necessary to read the statute as though the City of Louisville has an ordinance saying that a man with at least record sitting in a restaurant, waiting for a bus and shuffling his feet was guilty of disorderly conduct. The question there whether it was -- such a statute was -- whether such a statute violated the Fourteenth Amendment --
Jack Greenberg: Yes, you could.
Potter Stewart: You could pose either case in either terms, couldn't you?
Jack Greenberg: I think you can pose it in either terms. I think -- I mean, for all of us to be realistic, everybody knows this case does involve these people being arrested because they're Negroes at a white lunch counter and this doesn't require judicial knowledge. It's in the record, but the case in terms of legal analysis can be treated in either way and I was trying to present this Court the different ways in which I thought it could be treated.
Hugo L. Black: Well, the Supreme Court did not construe it as constitutional or unconstitutional as applied, did it, on the fact?
Jack Greenberg: It did not review the fact.
Hugo L. Black: It did not review the fact?
Jack Greenberg: No.
Felix Frankfurter: It couldn't review the facts.
Hugo L. Black: It couldn't review the facts.
Jack Greenberg: Or it held it could not review the facts.
Hugo L. Black: Therefore, if it was going back to the language of the Act, wasn't it?
Jack Greenberg: Yes sir. In fact, I might point out in connection with the Thompson case that there's an additional similarity between this and Thompson because Thompson also was really a review of what was an adjudication by the lowest court -- by a police court though this case has gone up through the judicial hierarchy in Louisiana, they abstained from reviewing the judgment below.
Felix Frankfurter: That's why I asked you the question initially because so far as the judicial scope of what Supreme Court did in Louisiana steps right to the Thompson case, except in the Thompson case, we brought the case here directly from whatever was the local police court and here, while there had been some judgment by the Supreme Court and tactically a denial of certiorari, can you put it (Inaudible)?
Jack Greenberg: Yes, well in terms of -- in terms of the facts of the case, this Court abstained from -- the State Supreme Court abstained from reviewing it.
Felix Frankfurter: Well, they've abstained. According to its constitution, it couldn't review it, unless and otherwise unlikely and it said so. That was the situation in Thompson, that's why we brought the case here from the court of (Inaudible)
Jack Greenberg: Well, I, Mr. Justice Frankfurter will confess that I am not entirely familiar with intricacies of Louisiana appellate procedure. Mr. Tureaud who was our Louisiana lawyer has handed me a note which says that the State Supreme Court did not have jurisdiction by appeal but it did have by certiorari which is what this proceeding was.
Felix Frankfurter: Then, if it had by certiorari, a fortiori, it didn't make any adjudication.
Jack Greenberg: No, it did not -- it did not make any adjudication, just abstained. Our first legal argument as I hope I brought out in response to questions was that it ought to be cleared that where the police officer acts initially because he observes the Negroes sitting at the counter reserved for white persons, but this arrest and conviction violates the Fourteenth Amendment of the United States Constitution. In the -- any number of cases, I think this Court has made clear the principles, the state may not enforce racial discrimination and certainly there can be no more effective state officer than the police officers. And I think all of these records ought to be read and must be read as the police officer Captain Wiener coming to the lunch counter upon receiving calls from a variety of people saying these Negro students sitting at the lunch counter and arresting them for the mere presence of their being there. Number 27 Briscoe, there has been a suggestion, the Government's brief discusses it at some length, that perhaps, there might have been an initial request by somebody in the establishment that these petitioners leave. We don't read the record that way and I read the record as Mr. Justice Whittaker indicated that they at best told that they could be served over at the other side if they wanted to. Moreover in Briscoe, the finding of the Court rests on one independent ground that the police officer told them to leave and they did not and we submit that under decisions of this Court in Stromberg against California, the Williams case, and Terminiello that if one of the two grounds of a conviction is unconstitutional, then as part of a generalized finding, then the conviction must fall. So all three cases fall under the first argument that we have made, that where the police officer acts initially because he sees the Negroes sitting at the counter reserved for white persons, such a arrest and conviction violates the Fourteenth Amendment. If however, this Court were to read the record in the Briscoe case as indicating some demand to leave and we don't think it should, we submit that it should not make any difference constitutionally that the police officer's action was motivated by the fact that the manager at the lunch counter refused to serve and thereafter requested the police officer to make the arrest which after indictment is followed by conviction. In this situation, you have state action in the arrest of the defendant, trial of the defendant, the conviction, the sentencing of the defendant, all taken solely to enforce the private racial prejudice of a citizen. This Court previously has held that such state action violates the Fourteenth Amendment as in the Girard College case where Stephen Girard set up a will and to enforce his private prejudice, got state officials, city officials of the City of Philadelphia to implement this prejudice. This Court struck that down in a brief opinion and we feel that in the Shelley and the Barrows case, Barrows against Jackson and other cases, this Court has clearly indicated that if state action is enforcing private prejudice, that is a violation of the Fourteenth Amendment. We should like to reserve the remainder of our time for rebuttal.
Felix Frankfurter: Second Girard case sheds further light on that problem?
Jack Greenberg: Well, as I understand certiorari was denied in that, and that was after the divestiture by the state officials and so forth. I don't -- I really -- well, I don't view it as shedding light on this particular problem but --
Felix Frankfurter: Come her on appeal and dismissed I may be (Inaudible)
Jack Greenberg: Mr. Coleman was the lawyer who took it here and informs me that they did not.
Felix Frankfurter: (Inaudible) in referring to Mr. Coleman's memory and -- as well as knowledge of the law.
Earl Warren: Mr. Ward?
John F. Ward, Jr.: Mr. Chief Justice, Your Honors; the defendants here have attempted to color these cases entirely in terms of Negro versus white people, and to raise in that very limited context, the question of whether or not the police power of the City of Baton Rouge maybe invoked to enforce a private property owner's right to be secured in his property. Therefore the issue actually before the Court is much broader as stated by the defendant and involves the basic fundamental issue of whether or not in our country, a private property owner still has the right to admit or deny access to his property or to restrict in some fashion the use of that property for any reason that he may choose. Or does a man, by entering into a private business which may ultimately result in a gain to him or which may ultimately result in a total loss which he alone must bear become a public trust open to anyone whether objectionable to him or not. We submit that he still possesses the right to chose who he would admit to his place of business and whom he will serve and as just as other citizens he has the right to call upon law enforcement officials to protect his rights.
Hugo L. Black: Are you sure that -- that besides the questions here or whether the question is here in this way, can a state pass a law of its own which forbids people to be in -- on a property owned by another where there is no objection raised by the property owner.
John F. Ward, Jr.: We submit Your Honor, Mr. Justice Black in all three of these cases you have an objection by the owner?
Hugo L. Black: You would disagree with him about de facto?
John F. Ward, Jr.: Yes, sir, I do.
Hugo L. Black: You say that the owner had indicated and shown that he was ordering him to get off the property?
John F. Ward, Jr.: In all three cases, the owner indicated, we think very clearly to these persons that they would not be given service in this particular area --
Hugo L. Black: Well, that's quite different.
John F. Ward, Jr.: -- of his property.
Hugo L. Black: That's quite different. They would not be given service. Was there any depravation of the owner's right here to order somebody off his premises and he did not want on his premises?
John F. Ward, Jr.: Yes, sir. We think the right to order all --
Hugo L. Black: You will discuss that question of fact here?
John F. Ward, Jr.: Yes sir.
Felix Frankfurter: But you do accept the tender of the legal question which Justice Black's question proffered? You do -- do you accept that is the issue as raised by Justice Black and that you have said as I understood you, namely, may the state pass a statute intervening with are presence on, particularly in this case, I mean with the word “private premises,” premise that's not dedicated to general public use, where the owner himself had no objection to such presence or the owner himself does not indicate that he wants the person for whatever reason to leave his premises.
John F. Ward, Jr.: In other words --
Felix Frankfurter: Do you accept it -- I've rephrased what was questioned -- admirably stated.
John F. Ward, Jr.: No sir, if I understand your question, may the state adopt the law which requires segregation on private premises, no sir.
Felix Frankfurter: Pardon me?
John F. Ward, Jr.: If your question is --
Felix Frankfurter: No, I go back -- instead of rephrasing and we get into the lawyer's troubles, you heard Justice Black's question. Do you accept that that for you the issue in this case as he put it?
John F. Ward, Jr.: If he means can the state pass a law refusing admission to private property even though the owner wants the person on there, my answer to that is no, the state cannot.
Hugo L. Black: Even though the owner has not objected to it?
John F. Ward, Jr.: If you have an anti-trespass law for example, and the owner makes no objection to the person being on his property, I do not think that the trespass law would apply, that's correct sir.
Earl Warren: We don't have a trespass law here, do we?
John F. Ward, Jr.: No, sir, you have a disturbing peace or someone to disorderly conduct --
Felix Frankfurter: And we do not even have a case here to reverse of what you and I are talking about, namely where the state takes affirmative action against certain discrimination, this for instance, the state the New York in the case we have sometime ago, we haven't got that question?
John F. Ward, Jr.: No sir, we have no affirmative action of other state.
Felix Frankfurter: No affirmative action disallowing a choice that otherwise might deal -- given in that case here either.
John F. Ward, Jr.: That's correct.
Felix Frankfurter: We had such a case some years ago, with many years ago, in my time and New York required certain nondiscrimination, we haven't got that case here or have we got the question that Justice Black puts to you?
John F. Ward, Jr.: We have --
Felix Frankfurter: So that it does get down as he suggested to you, a discussion of the precise and concrete facts in these three cases to see whether they come within what you regard as the state couldn't do, namely, intervene where the state -- where the owner of the so-called private enterprise has not himself intervened, as I understood his question.
John F. Ward, Jr.: Correct. We submit further that these cases go even beyond that issue because it is clear from the record that the sole reasons for these persons' conduct in these particular cases was to engage in a demonstration on private property against the owner's wishes, a seizure of the owner's property in an effort to coerce him and to submitting to their demand.
Potter Stewart: Now, is that clear on the record or you're just gathering that that's clear from which you might have read the newspaper?
John F. Ward, Jr.: I think it -- I submit first of course, that the Court -- the question of occurred as presented in the newspapers was a matter of common knowledge to everyone within the community which the Court could have taken notice of. I think I have data sufficient in the record, to draw it from the record itself.
Hugo L. Black: You mean the Court could have taken notice of that, to convict somebody of a crime --
John F. Ward, Jr.: I think that --
Hugo L. Black: -- on what was published in the newspaper?
John F. Ward, Jr.: As I recall this Honorable Court in the (Inaudible) case, the judicial notice of the fact, the terrible treatment or attitude of the Communist Governor of (Inaudible) and certainly I think this would be the facts of these demonstrations and the violence which have occurred in their wake, is just as much a matter of common knowledge as is the --
Hugo L. Black: Oh what I -- what I meant was, are you saying that what actually took place in that store is a matter of judicial knowledge to be inferred from the newspapers of the community?
John F. Ward, Jr.: No sir, not actually what --
Hugo L. Black: I didn't think you would say.
John F. Ward, Jr.: No sir I didn't –-
Hugo L. Black: I didn't –-
John F. Ward, Jr.: No, I am referring to the demonstration itself. I think that those are sufficient --
Hugo L. Black: You're talking about the result of the demonstration?
John F. Ward, Jr.: Yes, sir. But I think from the record also, if you will look in the record on the -- at the motions to quash which is approximately at page 7 in each one of the records that were filed by the defendants and constitutes sworn statements of the defendant that are in the record, in paragraph six, I'm looking at number six of the Garner case, Number 27, I believe it is, paragraph six of the motion to quash, they state that while the arrest and charges were brought for disturbing of peace, there was not a disturbance of the peace except for the activity in which defendants engaged to protest segregation. Again, in paragraph seven, they state, that here, defendants each alleged (Inaudible) and going down a little further. In protest of the segregation of laws of the State of Louisiana did on the 29th day March 1960 “sit-in” in a café counter seat. I do not believe that you can read those allegations in the motion to quash with the balance of the testimony without drawing the conclusion that these people who own this particular property on these particular days, not for normal business purposes, but to carry on a demonstration to promote their particular beliefs, that the property owner happens not to agree with. They went into his place of business, into an area in which he did not want them. They were requested to leave --
Hugo L. Black: But you are now --
John F. Ward, Jr.: -- or at least leave that area.
Hugo L. Black: You're now arguing on the basis that he took apparently to that extent, to get rid of them --
John F. Ward, Jr.: Your Honor, I can say --
Hugo L. Black: -- of the store and that to me raises quite a different case.
Felix Frankfurter: It does for me, too.
John F. Ward, Jr.: Well, I have taken the position throughout, Your Honor, that the owner or their agents did take affirmative action to that the state --
Hugo L. Black: That of course, we have to depend on the record as to whether or not he took action to show, direct them to get off his premises on where the state came to back not its own purposes, but his purpose to protect his business with people he didn't want with.
John F. Ward, Jr.: We think that is one element of -- one possible view of the case. We think also, that there's another view however, and that is that under these particular circumstances, with the testimony in the record that they -- were there for the purpose of it in protesting the segregation and customs in law. In other words, expressing themselves that under the situation which existed in Baton Rouge at that time, and which, although would be the same situation does not exist everywhere, raise relations in Baton Rouge, and not at their best right now. Under those situations, that situation and with the demonstrations, we submit that the law enforcement officers of Baton Rouge can move into avert violence and disorder in the community that would flow and could foreseeably be seen to flow from these demonstrations. We know that it occurred in almost every city in the south in which these demonstrations have taken place. We have a police department, not the best in the world, but pretty much like other cities. Our city is pretty much like other cities throughout the country. We've got a majority of law-abiding peaceful citizens. They abhor violence. They don't hate people, they don't want to persecute people but they would like to continue to carry on their daily activities, their daily business without having detention and the violence, possible violence and disorder which is caused by these demonstrations. We think that our police officers, not only have the right, they have a duty and responsibility where they see a situation existing in which violence -- from violence can flow that they should step in and stop it as soon as they can. In these cases, that's what they did over and above if you take that view of it or the Garner case for example where the police officer actually went in without being called. Perhaps he was a little precipitous in acting as quickly as he did, but he was acting for only one reason, because he felt that violence and disorder could come to his community and it was his job to try to prevent it if possible.
Potter Stewart: Well, there is a difference, isn't there, between the police making their business to be present at a time and place where they foresee the possibility of violence, to be present in order to prevent the violence, preventive practice, preventive police work, that's one thing. But -- and to arrest somebody for violation of this statute is something quite different, isn't it? What you said is directed to the first -- to the first course of action which would be quite a different course of action for the one actually taken by these police officers, wouldn't i
John F. Ward, Jr.: t?If you ignore, Justice Potter --
Potter Stewart: Justice Stewart, Mr. Ward.
John F. Ward, Jr.: If you ignore the fact of these demonstrations throughout the south, the fact that Baton Rouge, responsible officials in Baton Rouge have been wondering for many months, when are they going to get our town? You find out that these things are going or occurring, you'll try to take steps to prevent them. That is what we try to do or rather the City of Baton Rouge tried to do in these instances if you view it from the standpoint that the private property owner had no right to ask these people to leave or move themselves to another area, and had no right then to use physical force himself to evict them, or if he did, still had no right to call on the police officers to evict them instead of himself using physical force, because of the state action idea of the police being involved, which we submit, in either view of the case -- if you take it on the first view, that the private property owner objected to these people being there and that if he objected to their being there, he had a right to ask them to leave. And if he had that right, he also had the right to evict them if they refused to do so, use physical force to do it. If he had that right, then he had a right to call in the police officers to evict for him rather than use his own physical force to do it.
Hugo L. Black: Will you permit me to say right there that I think you are raising the question which includes two things; one is have you -- have you prosecuted these people under such statute, and two do the facts sustain what you are saying? That would seem to me on the basis, accepting that as the (Inaudible) per se whether or not you have convicted under an ordinance which prohibit -- which is based on that principle of law for this and number two, did your evidence support it?
John F. Ward, Jr.: With answer to the first part of your question, Justice Black, although these people might also be able to be prosecuted under a trespass statute, that type of law, we submit that they can also be prosecuted by disturbing the peace for this very simple reason. Their action in being on the premises and refusing to leave after the being requested to do so is an unlawful act to begin with.
Earl Warren: Were they, in the Garner case, asked to leave the premises?
John F. Ward, Jr.: Yes, in all three cases.
Earl Warren: Where do we get in it from the record?
John F. Ward, Jr.: On page 30.
Earl Warren: Page 30.
John F. Ward, Jr.: About the middle of the page. “They occupied two seats and their presence there caused me,” this is the owner of the store speaking, “they occupied two seats and their presence there caused me to approach them a short time later and advise them that we couldn't serve them.” Then further on, in the testimony.
Hugo L. Black: Now, that's not ordering them out.
John F. Ward, Jr.: We submit that there's no way that a reasonable person can walk in to a store and be told that he is not going to be served with the other testimony of the owner in this particular case without drawing the conclusion that the owner doesn't want them there. Now you may --.
Hugo L. Black: Well that store has -- the store has good many goods in it, and that the man, they might be perfectly willing to sell him other goods just he didn't mean he had to leave the building.
John F. Ward, Jr.: No but none of these -- those goods that you were referring to Justice Black are in this portion of the store, this is a separate store from the rest of --
Hugo L. Black: You are insisting that that means then he found (Inaudible) that he would tell him, “You get out of this part of the store?”
John F. Ward, Jr.: That's correct sir.
Hugo L. Black: That's what your argument there (Inaudible)?
John F. Ward, Jr.: Yes sir in all three cases, we think the testimony of either the owner or his agents or the manager indicated that in this particular area of his store, these people would not be served. In one store, they provided service elsewhere for him and they were told that they could get service over there. They refused, they sat right there. They stayed right where they where and refused to leave. I don't you can read that testimony, a man asked you to leave, says, “I won't serve you here but if you go over there, I'll serve you” and you refuse and stay right there, I can't think you can -- I don't think you can read this --
William J. Brennan, Jr.: Well, in this case though, there wasn't any other place to serve with, was there? I think --
John F. Ward, Jr.: In the Garner case, no sir.
William J. Brennan, Jr.: (Inaudible) the facilities were for only one race?
John F. Ward, Jr.: That's correct sir.
William J. Brennan, Jr.: So he was told --
John F. Ward, Jr.: Of course, in view that he would be -- he would be served there, I think the only conclusion he could draw, if that was the type of service he was looking for, the Sitman's Drug Store did not have a facility for him.
Hugo L. Black: If the state is merely protecting the right which you said they do have a right to protect, and that's -- it's on the argument, the right of an owner to keep people off of his premises that he does not want, I would suppose if you'd have little difficultly in proving that fact by the man going in the store, and rather than to rest it on ambiguous farfetched inferences, if a man strongly, again, he doesn't want him there, and tells him.
John F. Ward, Jr.: Well --
Hugo L. Black: But you don't have any statement except that -- or rather train of inferences in this case, at least, do you?
John F. Ward, Jr.: You don't have a specific statement “get off of my property” in the record, that is correct, sir.
Hugo L. Black: But is there any indication here that this man wanted his fellow to get out of his store because he didn't want to sell him goods?
John F. Ward, Jr.: I think in each one -- in each one of the three cases, there is a definite tone from the record or inference from the record that the manager or the agent in all three of these cases are the owner, he did not own that particular person in this portion of his premises whether that portion be 20 feet square or only one-foot square or counters, too.
Hugo L. Black: Were trespass statute in effect at that time?
John F. Ward, Jr.: We had a criminal trespass statute in effect at the time which was designed primarily for country property, that is posting and fencing against hunting and trespassing and that sort of thing, I presume, although I did not have a copy of that statute here with me that though -- I do in fact -- I do not know whether it would have applied or not and why or if it did, why.
Hugo L. Black: Then you raise it as.
John F. Ward, Jr.: The district attorney did not use it.
Hugo L. Black: In any way, they didn't use it?
John F. Ward, Jr.: No sir, the then district attorney not used that statute or Act.
Felix Frankfurter: It may become relevant whether that statute applies? It may become relevant because the fact if -- if the record sustains a valid trespass statute in existence at the time, the fact that the prosecuting attorney labeled his information, is that what it was?
John F. Ward, Jr.: Information, yes sir.
Felix Frankfurter: Information, labeled his information through -- with the citation to another statute is irrelevant. This Court long ago has held and has held again and again in an indictment which the United State Attorney may think form statute (A) and it couldn't be sustained on the statute (A), may as the fact all sustain violation of statute (B) which is valid, it doesn't make any difference. But you haven't got that situation here as you yourself said this couldn't be sustained or you're not arguing that it can be sustained under the trespass statute?
John F. Ward, Jr.: Because I'm not -- I'm not arguing either way with respect --
Felix Frankfurter: Or would you not -- you have to -- for the purposes of remarks, I just make you have to argue that it could be sustained under the trespass statute if it's not sustainable on the breach of a peace statute. I know you are arguing that if --
John F. Ward, Jr.: Yes, I see --
Felix Frankfurter: -- at least with these statutes.
John F. Ward, Jr.: I see what you mean.
Felix Frankfurter: And therefore, the one I asked you whether under the breach of peace statute, disturbing the peace, it makes any difference whether the owner asked him or didn't ask him to leave, that would the vital question in the trespass statute.
John F. Ward, Jr.: Well, I --
Felix Frankfurter: But so far as the owners, the owners are concerned, it can only be relevant evidence for roughly disturbing the peace and he can't determine that, can he? That's not for him to determine.
John F. Ward, Jr.: The owner?
Felix Frankfurter: Yes.
John F. Ward, Jr.: Now that's correct.
Felix Frankfurter: So that we're back as to whether what evidence is there? What is there on this record which establishes the basis on which the police can intervene, namely, disturbance of the peace?
John F. Ward, Jr.: I like the --
Felix Frankfurter: That's not that -- to be left for private determination, is it?
John F. Ward, Jr.: No, sir. I don't think it has been.
Felix Frankfurter: Whereas the trespass statute does involve private action or non-action?
John F. Ward, Jr.: That's correct, but it also involves disturbance of peace, the trespass action itself.
Felix Frankfurter: Well, I think -- I think it is necessary for you to avow or disavow that you're resting this thing on the then existing trespass statute, as I understand you, you do not.
John F. Ward, Jr.: That is correct.
Felix Frankfurter: Alright, so the trespass statute as of the time these occurrences is out?
John F. Ward, Jr.: It would not apply under the language of the trespass statute that was in affect at that time --
Felix Frankfurter: Alright --
John F. Ward, Jr.: -- because it referred only to what it is.
Felix Frankfurter: You can't use the later one.
John F. Ward, Jr.: Sir.
Felix Frankfurter: You can't use the later one, and we cannot resort to the latest statute.
John F. Ward, Jr.: That's correct, you have only the statute --
Felix Frankfurter: So that you, that you can sustain. You must sustain this conviction, to sustain it under 14 103 (7), is that right?
John F. Ward, Jr.: That's correct.
Felix Frankfurter: And that involved and inquires to what the nature of that offense is, namely, disturbing the peace, and how do you establish that in that case?
John F. Ward, Jr.: How do you establish it?
Felix Frankfurter: How does one -- yes, how -- what proof is necessary to make out a disturbance of the peace?
John F. Ward, Jr.: You must show that there is some -- there is an act committed which would itself -- which would foreseeably disturb and alarm the public. In the record, we think we show an act. We show a demonstration to protest segregation. We think under the existing circumstances in Baton Rouge at the time that these occurred, there was a foreseeability that would disturb and alarm the public, violence and disorder could follow.
Felix Frankfurter: Was there any of the statements offered and usually it does offer when it -- under the disturbance of the peace statute, it does offer evidence to show either in fact there was a disturbance or if it was so obviously eminent that the conclusions here is almost (Inaudible)
John F. Ward, Jr.: Of course Your Honor, not having been in the District Attorney's office at the time these cases were tried, I do not know why the District -- then District Attorney offered what he did or --
Felix Frankfurter: Well --
John F. Ward, Jr.: -- things that he did not offer. However --
Felix Frankfurter: I'm not holding you responsible for that because you and I are both limited to what the record shows.
John F. Ward, Jr.: That's correct. But we submit in this -- in the record, you have evidence that from which a reasonable person can draw the conclusion that the action would foreseeably disturb and alarm the public. And that under cases, that is all that is necessary to justify the conviction of disturbing the peace. In other words, we cited in our brief in American jurisprudence for example, the principle that -- an act which are the certain circumstances in time would not constitute a disturbing the peace, can constitute disturbing the peace on other circumstances and at a different time. Violence is not necessary to the charge of disturbing the peace under common law.
Felix Frankfurter: How are you drawing on the judicial notice of your court and this Court must take in order to establish the finding of disturbance of the peace?
John F. Ward, Jr.: As to the degree that I'm (Voice Overlap) -- as to the degree that I'm drawing on it, it would be very difficult for me to say Your Honor. I think certainly, it can be taken notice of. I think --
Felix Frankfurter: What -- judicial notice plays this part of the law, but in this case of what must be -- or what do you act to take judicial notice?
John F. Ward, Jr.: Of the fact that these are organized demonstrations, that these are not (Voice Overlap) --
Felix Frankfurter: How do I know that except for (Inaudible), like Justice Holmes, who never read any newspapers? How would he have known?
John F. Ward, Jr.: Well I presume, Your Honor that he would know that from the same way that you knew, that this Court knew in the (Inaudible) case of the terrible attitude of the Chinese Communist Government. I presume that you got that information from reading newspaper reports of the things that the Chinese Communist Government in China has done. You took judicial notice of that and I can see very little different between the two.
Felix Frankfurter: (Inaudible)
John F. Ward, Jr.: That's correct. And you don't' actually have way -- we've taken the position to begin with that you don't have to take judicial notice, it's in the record. We also state --
Felix Frankfurter: How is it in the record?
John F. Ward, Jr.: In their sworn statements that they were on this property for the purpose of engaging in activity to -- to protest the segregation customs of Louisiana and that they did on this particular date in order to protest the segregation laws of the State of Louisiana, both city and for the café counter.
Earl Warren: Is that disturbing the peace? To a person -- if a person seeks to vindicate his constitutional rights in that -- is that disturbing the peace?
John F. Ward, Jr.: No sir, not as long as he is doing so in a place where he has a right to be such as the Cantwell versus Connecticut, State versus Sanford and the other cases dealing with public streets. When he abandons the police where he has a right to that demonstration and invades private property for that purpose, then under certain circumstances that can itself constitute disturbing of peace. In our situation in Baton Rouge, it constitutes disturbing of the peace for the one reason that violence was going to -- if we had not stopped this, if we had allowed these demonstrations on private property to continue, there is no doubt in my mind violence would have occurred somewhere along the line.
Felix Frankfurter: I respect your mind, but your mind is not in the record.
John F. Ward, Jr.: That's correct Your Honor.
Hugo L. Black: Moreover --
Felix Frankfurter: I don't mean to be -- I don't mean to be -- that wasn't a bright remark, but is irrelevant remark.
Hugo L. Black: Moreover, the --
Felix Frankfurter: And throughout the --
Hugo L. Black: Excuse me.
Felix Frankfurter: If you forgive me, how do you get what you -- of that which you have private knowledge or local knowledge, how does that trans -- how is your knowledge transmitted to us on this bench except -- unless it would be put into the record, so I can say, I now know what the local people -- why they did what they did?
John F. Ward, Jr.: I submit to you that you have in the record the fact that these people were engaging in a demonstration to protect segregation on private property which they had no right to do and it's that act in itself on private property constitutes doing an act in a manner which would foreseeably disturb and alarm the public.
Felix Frankfurter: They might have -- they might have -- if we're going to resort to judicial notice that came to the newspapers, they might have felt that this, one of these department stores, would do what other department stores and the retails have done. Say well, I think it's good business or good ethics, or good sense, or avoidance of difficulty to let them sit there. That has -- that has happened in Southern Institutions, hasn't it?
John F. Ward, Jr.: That's correct and --
Felix Frankfurter: So --
John F. Ward, Jr.: (Inaudible)
Felix Frankfurter: So how do I know that they might not rightfully have, I assume that would be the consequence of actually having their faces in front of the propriety and he consult with his people and say, “Well, let's stop this” for one reason or another. How does the fact that it had been the custom to segregate eating -- eating opportunities? How does that legally -- how can I jump from that fact with a legal conclusion that there would be (Inaudible)?
John F. Ward, Jr.: From the trial court judge, the police officer could do it because he has knowledge of the conditions existing at that particular time.
Felix Frankfurter: But that -- that knowledge never got into record by his testimony. He wasn't put on the stand and he didn't testify, and just speaking out loud, he didn't testify, “We've had experience with this thing only last week,” less than so, and there was right and we had to call on the National Guard, et cetera, et cetera. He could've testified to those things, couldn't he? Now the fact that the policeman may have thought so, the fact that the trial judge may have thought so, is of no greater legal validity I may say so, then that you, doubtless with good reason, have said what you said a little while ago, said what said what you said a little while ago, that you thought this would happen, but that's what the Court proceedings are for, to bring out proof.
John F. Ward, Jr.: But with respect to that statement Justice Frankfurter, I would say this that the trial court judge in Louisiana, we submit could take notice of the racial conditions existing in the south and in Baton Rouge at that particular time. He is specifically authorized to do so by state statute and our States Supreme Court has done so. If he can take judicial notice of the social and racial conditions prevailing, then he had before him the possibility of violence occurring as a result of these things.
Felix Frankfurter: But, from that generality of the situation, (Inaudible) races to a specific conclusion in a criminal case that a riot is likely -- violence is likely to result, seems to me to be the rather large (Inaudible). In a local town, State of Kentucky, if I may speak of Kentucky where there -- so I read by the papers or by the books, there has been local fuse. Now, the local judge may know exactly what will happen if John Smith goes to the Little Robinson's house, but I shouldn't think on the basis of that internal knowledge that by that knowledge, John Smith could be arrested for a breach of a peace, because the local judge knows that if a Smith goes to Robinson house, there would be devil to pay.
John F. Ward, Jr.: In drawing a -- an extreme example such as that Mr. Justice Frankfurter, it does seem to be a big jump. But living in Baton Rouge and living in the south at this day and time, it's no jump at all, honestly.
Felix Frankfurter: But I just put up to you that in a number of towns and the cities where there was just a strong conviction as in Baton Rouge, I suspect, they did allow these people to be served and at about the same time.
John F. Ward, Jr.: And we submit that in -- in many -- in many towns, they have done it without any demonstrations at all.
Felix Frankfurter: They will. So how can I -- how can I as a judge here sit and know what the situation in Baton Rouge was on the mere fact that you local people have the right to have a competent knowledge as to what would happen.
John F. Ward, Jr.: We submit that the trial judge in -- in affirming the -- in convicting these people had the right to know that and to take that into account and that if he had the right to do it, then it exists. It's there, and it's in the record.
Felix Frankfurter: I suggest that the local judge therefore had the right to summon the police authority and put questions (Inaudible) and he didn't. I'm not criticizing anybody.
John F. Ward, Jr.: Alright.
Felix Frankfurter: I'm just trying to tell you my difficulties with this record.
Earl Warren: Mr -- Mr. Ward, would you point out the specific plea, the language that you relied on to show that these petitioners admitted they were there for an unlawful purpose.
John F. Ward, Jr.: Yes sir, on page --
Earl Warren: Could you read it please, to us?
John F. Ward, Jr.: On page 7, approximately of which one the records.
Earl Warren: But let's take the Garner case. That's the first one.
John F. Ward, Jr.: Actually the language is the same, because it's contained in their motion --
Earl Warren: Yes.
John F. Ward, Jr.: -- to quash.
Earl Warren: Alright.
John F. Ward, Jr.: In the Garner case, it's contained on page six and seven, or seven and eight, paragraph six of the motion to quash, that while the arrest and charges where for disturbing the peace, there was not -- there was not a disturbance of the peace except for the activity in which defendants engaged to protest segregation. And again --
Earl Warren: No.
John F. Ward, Jr.: The paragraph --
Earl Warren: Read the rest of it, please.
John F. Ward, Jr.: Yes sir and that use of the criminal process in such a situation denies and deprives the defendants of their rights, privileges, immunities, and liberties, guaranteed to the defendants, each citizens of the United States by the Fourteenth Amendment to the Constitution of the United States of America.
Earl Warren: Now, is there any intimation in there that they were doing something unlawful?
John F. Ward, Jr.: Yes, sir.
Earl Warren: What were -- what -- what are the words that admits they're doing something unlawful?
John F. Ward, Jr.: When they say that were engaged in an activity to protest segregation on this private property which is --
Hugo L. Black: Wait a minute. That depends on whether it was a private property owned or (Inaudible), isn't it? Why you -- you -- you moved over that each time.
John F. Ward, Jr.: Well, I think there's evidence --
Hugo L. Black: If you stayed on this private property. Who's right is it to keep it private?
John F. Ward, Jr.: The property owner?
Hugo L. Black: Anybody else?
John F. Ward, Jr.: No sir and we submit that in the record, the testimony of the property owners in this case indicate that they want to keep it private and that's why we say that this act became an unlawful act. We submit as noted in our supplemental brief for example, these cases are almost identical to the sit-down strike case as in the late 1930s. The acts are virtually the same and the purpose of the acts are the same. In the sit-down strike case, the employees felt that the owner should pay them better wages. They sat down on his property and refused to give it up in order to coerce him and to meeting their demand. In these cases, where you don't even have an employer-employee relationship which is at least makes it a little closer, these people did the same thing. They sat in on this person's property, took possession of it and refused to give up possession of it in order to coerce this owner --
Hugo L. Black: Refused who to give possession? Did he ever order them to get out?
John F. Ward, Jr.: He requested them to leave the particular area of the store in which they were.
Earl Warren: Did he do that?
John F. Ward, Jr.: He told them that he would not serve them and -- in the cases where they had other facilities, you will be served over there. I don't --
Earl Warren: They didn't have any facilities in this place. He just said -- he just said we can't serve you here.
John F. Ward, Jr.: That's correct. That's in the Garner case.
Earl Warren: Yes. Well, now it's that requesting them to leave?
John F. Ward, Jr.: (Inaudible) sincerely, I submit Your Honor, I don't believe you can read the language. I have a man who'll tell you when you walk in and ask them for a service at a particular place for a particular thing and he says, “I can't serve you,” I don't think you can take that to mean anything, but leaves so that other customers can occupy the place.
Earl Warren: Did they have any signs in the store indicating it was segregated and that he didn't want any -- any of that kind of trade at that particular place?
John F. Ward, Jr.: I frankly don't know Your Honor.
Earl Warren: And I think the record shows were not -- at least in some of them.
John F. Ward, Jr.: I think the records shows it in the --
Earl Warren: There's nothing in the record to indicate that there was such knowledge on the part that the public gain from -- from a sign of that kind, was there?
John F. Ward, Jr.: Not that there was a sign, no sir.
Earl Warren: No. Now, would you say that if a man just -- suppose the man have the practice of not doing any business with Negroes, if a man walked into the store and offered to buy something and he said the owners said, “Well we don't serve -- we don't serve you” and he loitered there a little while, do you think he -- he could be arrested for disturbing the peace with no more?
John F. Ward, Jr.: I think when it's done under these circumstances, Your Honor, yes sir. This might be a possibly different situation if this was in the normal course of business, if these people were doing so -- or just a normal situation.
Earl Warren: It was a normal course of business went and bought an umbrella there just before he sat down.
John F. Ward, Jr.: Yes, sir. But these people were not there for -- just to buy a cup of coffee. These people were there to demonstrate and protest. I don't think you can read the record.
Felix Frankfurter: I suppose I agree with you -- suppose I agreed with you in the answer you gave that the owner didn't want them there and indicated he didn't want them, suppose I agree to you --
John F. Ward, Jr.: Alright.
Felix Frankfurter: -- the record sustained such finding, does that -- must I go from that conclusion (Inaudible) to draw from that -- from that alone the conclusion that the disturbance of the peace was in the air?
John F. Ward, Jr.: Yes, sir. I think so, for two reasons. One, because the demonstration under the facts you have assumed, the demonstration is an unlawful act, and I think that from that alone --
Felix Frankfurter: Is -- is unlawful act only because -- within the anti-trespass statute.
John F. Ward, Jr.: Oh, no.
Charles E. Whittaker: For me, that raised this question whether or not if I come in to your store (Inaudible) and I refused to go, (Inaudible) your right and power to order me out, that's relevant on a disturbance of the peace issue.
John F. Ward, Jr.: Yes, sir.
Charles E. Whittaker: But until you order me out, that's the trouble you -- of this case from my standpoint. You have invited them in and you've never ordered me out, you've never cancelled the invitation. And I don't -- as I frankly must say, see the substance thereof a disturbance in the peace. Now, if I were contesting with you, you had the right to order me out. That would be relevant. Now, you've said many times that these people had no right to (Inaudible). Now, we should make that clear to you from the record, where it is that they had no right to do that if the invitation was cancelled?
John F. Ward, Jr.: If Your Honor please, Justice Whittaker, in the Briscoe case which is Number I believe --
Earl Warren: Mr. Ward, in some communities, church congregations have the custom of segregating. Suppose, a Negro walked into a church that had -- had the custom of segregating, and the minister merely said to him, “Well, our practice here is -- is not to have Negroes.” but the man didn't -- didn't move and the preacher or the congregation made no effort to remove them and a policeman came in note -- notice that he went in and the policeman came in and arrested him for being in there and praying, would it be any different from this case?
John F. Ward, Jr.: If you're referring to the Garner case --
Earl Warren: No, I'm not -- I'm with -- yes, we'll take the Garner case.
John F. Ward, Jr.: That's the one in which the police officer came in --
Earl Warren: Yes.
John F. Ward, Jr.: -- without having been called --
Earl Warren: Yes.
John F. Ward, Jr.: -- and admittedly the Garner case was weaker than the other two to that extent, and that he was not actually called by the owner of the premises. We submit in line with the -- the cases involved in the right of an officer to direct people to move on -- on the public street, and on what he thinks violence is likely to occur that some discretion, some judgment must be given to the police officer in order to carry out their responsibility to prevent, to stop before it starts possible violence and disorder in a community. In your situation, I doubt that your -- the example you just gave Mr. Chief Justice, I doubt seriously that the police officer would ever make an arrest under those circumstances.
Earl Warren: Would he under the Garner case?
John F. Ward, Jr.: I think then, it would be a question of whether or not he has exceeded his authority.
Earl Warren: Well, isn't that the question you've got in the Garner case?
John F. Ward, Jr.: Yes sir, you have that.
Earl Warren: Now, would it -- well, why would be anymore an excess of authority for him to do it in those circumstances than in this?
John F. Ward, Jr.: Because --
Earl Warren: The proprietor made -- made no complaint of any kind to the police. He merely told these people that we can't serve you here and there was no recalcitrance. There were no -- no back talk, there were no argument or anything, some people officer saw it and -- and came in, and arrested him. No, how would that be different from the church situation?
John F. Ward, Jr.: Because under these circumstances, the question of the demonstration – race relations being what they are in Baton Rouge --
Earl Warren: I beg your pardon?
John F. Ward, Jr.: Sir?
Earl Warren: I didn't get the first part.
John F. Ward, Jr.: The fact that these are a part of a demonstration, the fact of race relations in Baton Rouge, the fact that you do not have it in the --
Earl Warren: That isn't in your case so.
John F. Ward, Jr.: We submit that when you read the entire record with the statements of the defendants that they were there engaging in activity to protest segregation that it is in the record.
Earl Warren: Alright, let's assume that it is in the record and let's assume that it's in the hypothetical case that I put, would there be any difference?
John F. Ward, Jr.: Yes sir, again depending upon the particular circumstances and the judgment of the officer. In this case, in the Garner case, I think the officer acted because he -- he felt that violence would occur. I think the trial court judge agreed with him that if he -- he hadn't stopped this, violence would have occur. In the church example which you give, you at least have the more conciliatory passive atmosphere of the church. As I say, I do not believe there would have been arrest in the example that you gave. I think that example is different really from this.
Earl Warren: Did the officer -- did the officer say in these cases that they feared violence?
John F. Ward, Jr.: Do they state it in the record?
Earl Warren: Yes. In the record, don't they say that they did it -- they arrested them just because they were sitting in a place that white people were supposed to occupy?
John F. Ward, Jr.: They make statements to -- to that effect, Your Honor, after all the --
Earl Warren: Well, isn't that what we're governed by, what their statements were?
John F. Ward, Jr.: Not by those statements alone.
Earl Warren: Do they say anything to the contrary?
John F. Ward, Jr.: I think when you read the statement of the manager of Hoston, he feared the disturbance --
Earl Warren: Where, did he -- we'll let's see what he says, because those things are important Mr. Ward, I think we ought to point them out as we go along.
John F. Ward, Jr.: That's at page --
Earl Warren: -- as we go along.
John F. Ward, Jr.: Page 30 of the record in Number 29, Hoston versus Louisiana.
Earl Warren: Was there anything in -- in Garner?
John F. Ward, Jr.: As to the fear of disturbance, no sir.
Earl Warren: No -- nobody testified there was any fear of disturbance?
John F. Ward, Jr.: Except in the Hoston case.
Earl Warren: Yes, in just one case.
John F. Ward, Jr.: That's right.
Earl Warren: Well, how then -- how then do you sustain the Garner case?
John F. Ward, Jr.: We sustain the Garner case on two basis; one, that the police officer, in trying to prevent disorder in his community has some exercise of judgment in whether violence will occur. For example, in the Feiner versus New York case where the person made several statements with -- with regard to the mayor of New York and -- and referred to Truman and someone else, the police officers asked him to cease-and-desist after he felt that the people would -- would get unruly -- might get unruly.
Earl Warren: Right, now --
John F. Ward, Jr.: And the man refused and he arrested him.
Earl Warren: Now, we concede that, but is there any evidence in the Garner case showing that the police officer was exercising that discretion because he feared that violence would break up?
John F. Ward, Jr.: If you mean a specific statement by him, no sir, there is none.
Earl Warren: Well, is there any evidence or anything in the record to indicate it?
John F. Ward, Jr.: Our appreciation of the record --
Earl Warren: I beg your pardon.
John F. Ward, Jr.: Our appreciation of the records and all of it -- taken all of the testimony and the statements in their motion to quash together, we submit -- we believe that there is that evidence in the record.
Earl Warren: But you can't point it out per se?
John F. Ward, Jr.: I have to put it out in -- in the testimony and the motions to quash as a whole including their statements that they were engaging in an activity to protest segregation. I think the judge took the testimony that he heard as a whole together with what he knew of existing conditions in Baton Rouge at the time. I think the police officer did the same thing. With the --
John M. Harlan II: Are you going to deal with argument of the petitioners that this statute is unconstitutionally vague, the section under which they were prosecuted, Section 7?
John F. Ward, Jr.: Yes, sir. I plan to briefly cover it as well as the other contentions I make. Of course, they raise the question of that they are being denied the right of freedom of speech guaranteed by the First and Fourteenth Amendment. We have cited few cases, the Kovacs case and the Schenck case which indicates that freedom of speech is not an unlimited right given the example of Justice Holmes, for example, the case of the man yelling “fire” in the auditorium. We further submit that really for that contention which also we think is another admission by the defendants that were engaged in a demonstration because certainly, in these cases, if they were denied freedom of speech and expression, it's only because they were engaged in a demonstration, and nowhere we submit in the First Amendment or the Fourteenth or in any case they have cited, is there any language or any decision which gives a person the right to freedom of speech and expression on another man's property against his wishes. And that this freedom of speech or expression which they claim the right to have does not come within that guaranteed by the First Amendment, that is the freedom to express yourself in public places as in your own private property, not the freedom to express yourself or profound your beliefs on property owned by another without that person's consent.
Hugo L. Black: Without his consent or over his objection?
John F. Ward, Jr.: Either one really, Your Honor.
Hugo L. Black: But you do condition that each time the fact that he got the right to say what he wants if he's there.
John F. Ward, Jr.: If the owner advised him, yes.
Hugo L. Black: If the owner doesn't object? You mean, the state can come in and tell him he can't say it or talk on that, where the owner objects or not?
John F. Ward, Jr.: No. It's got to be without the owner's objection, yes sir.
Hugo L. Black: So, it gets back to that?
John F. Ward, Jr.: Yes, sir. They -- the defendants attempt to bring these cases within the doctrine of Civil Rights cases in Shelley versus Kraemer. They asked you to stretch those cases to cover this particular situation. We submit that actually what they ask you to do in order to adopt their proposition with respect to this argument is to reverse the Civil Rights cases because all of the Civil Rights cases had held that the right of which a man to privately discriminated the right to choose his own associates has always remained with him and the Shelley versus Kraemer or in the Barrows versus Jackson or any of the other cases denying him that right. In this case, you have a disturbing of peace statute which is applied indiscriminately to all persons whether they'd be White, Black, Chinese, Religious Affiliation, Republican or Democrat, when they commit an act which can foreseeably result in a disturbance or alarming of the public, they are arrested under this Act. It's not used in a discriminatory fashion nor is it used to enforce a private segregation. The question of who a man lets on his property is a question for he alone to decide and not the State. We have enacted no statute which requires segregation in these places. We have enacted no statute which requires integration in these places. That is the right of the property owner himself to choose and this statute is applied only when the property owner has exercised his right and a person refuses to leave his property on a situation where the acts of these persons are going to cause violence and disorder to occur.
Hugo L. Black: You mean, might make someone else resent what they are saying or doing? Well, could you -- even if you --
John F. Ward, Jr.: Where that is --
Hugo L. Black: -- even if you assume that that is a sufficient ground on the basis that you could show somebody might object, would that be enough to just -- justify without showing that your beliefs were unable to stop the people who tried to prevent a man from doing that which he had a right to do? Which would come first?
John F. Ward, Jr.: Of course we, in Baton Rouge, we didn't do that Your Honor. When they were demonstrating --
Hugo L. Black: I understand you to --
John F. Ward, Jr.: -- when they were demonstrating, where they had a right to be -- that if picketing some several stores, marching down the main street, the capital steps, we did protect their right to do so.
Hugo L. Black: But your argument gets back each time, to whether they -- your law prohibits them being there unless the owner forbids it, doesn't it?
John F. Ward, Jr.: It's correct. That's correct. And he --
Hugo L. Black: And he keeps his store open. But suppose he wants to keep his store opened to all people of all colors because he wants their trade, he's not willing to say, “Keep out of here” or “You get out of here.” Does the state have a right to come in and take his place and forbid it?
John F. Ward, Jr.: No sir. He does not. He has choice to make whichever way he makes it. The state has no right to interfere with it.
Earl Warren: Mr. Ward, suppose a man running a store does have a custom of segregation, but he doesn't want to offend the Negroes to the point that they won't come in to his store and buy his other articles, and when the thing of this kind happens, he says, “Well, it's not my -- not my practice or not my custom do this, but I don't want to offend these people, and I'm not going to -- I'm not going to order them out of my -- of my place. I'll just tell them that it isn't my custom to -- to serve them.” And he takes that attitude and objects no further to they're being there, and the police come in, there being no disturbance of any kind, and put the people in jail for disturbing the peace. Is that -- is that a violation of the law?
John F. Ward, Jr.: You would have that situation Your Honor only in the Garner case and in --
Earl Warren: In the Garner case, yes, but you defend the Garner case very strongly and I just want to know how you do it and that's the reason why I'm asking these questions, now, isn't that the Garner case?
John F. Ward, Jr.: I don't know that in reading the testimony of Mr. Wilkes, the owner of Sitman's Drug Store in which the Garner case took place --
Earl Warren: Yes.
John F. Ward, Jr.: -- that you can draw the conclusion necessarily from the testimony that he was not asking the person to leave. We contend that he was even though he did not say the specific words, “Please get up and leave”. We contend that the inference -- the only inference that you can draw from that testimony, the only conclusion you can draw is that he was in fact asking the person to leave because he had no place to serve him and he was taking up space which his other customers might have been using. Under those circumstances --
Earl Warren: He didn't say that.
John F. Ward, Jr.: No, that's correct. In so many words, specifically no, sir, he did not.
Earl Warren: Well, there'd be that two inferences that can equally be drawn, one of them with guilt and one of them of innocence, what one do you choose in your state?
John F. Ward, Jr.: Normally, in criminal cases, you choose the presumption of innocence.
Earl Warren: Innocence. That should leave out the other.
John F. Ward, Jr.: If you have it all, Your Honor, respectfully, it's in the Garner case.
Earl Warren: Yes.
John F. Ward, Jr.: Not in the other two. In the other two, you had the manager, the agent calling the police department asking them to come to protect his rights. There's no question from the testimony in both the Hoston and the Briscoe case that he was called.
Earl Warren: Is there one that -- isn't there another one where he didn't -- where it was some truck driver who called? I thought that was in one of the --
John F. Ward, Jr.: No sir. As I recall the record, the only case at which the --
Earl Warren: Well --
John F. Ward, Jr.: -- police was not called --
Earl Warren: Well, I take your --
John F. Ward, Jr.: -- was in the Garner case.
Earl Warren: -- your (Inaudible)
John F. Ward, Jr.: The next argument that is advanced and it is advanced primarily by the Government, at least it appeared to be, is that because Louisiana has adopted segregation laws in other fields or other areas in the past, and because the people of Louisiana had a custom of segregation, that this is state encouragement in the inception of this segregation and that the adoption of the segregation laws in other fields puts the State into the -- the discrimination to begin with. In other words, they make the argument you go beyond the question of state enforcement of private discrimination. They now say that because we have had segregation laws in other fields that makes us a part of the original discrimination which is therefore prohibited by the Fourteenth Amendment. Of course as we noted in our brief, if you boil our argument down, it simply means that in a state which has segregation laws, the private businessmen can no longer refuse to admit whomever he might choose to his business or refuse to service to whomever, so he -- whomsoever he might chose while in a state, perhaps Montana or Nebraska or Colorado where -- which has had no segregation laws, the private businessmen in that State still has the right to choose whom he shall render his services to. We submit that -- that the argument on its face must be invalid on that basis. The Government then raises the question of the Briscoe case, the Interstate Commerce Act relying on Boynton versus Virginia. With respect to that case, we would submit first that you have the same situation here that you had in Boynton versus Virginia to the extent that the restaurant is not owned by the interstate commerce carrier, it is owned by a separate corporation not under the control, and therefore, fits into the dissent by Justice Stewart, joined by Justice Clark. In addition in the Boynton case, you had a passenger in Interstate Commerce. Here, you do not. Now, the Government argues that the Interstate Commerce Act by the use of the term any particular person includes people even who are not in Interstate Commerce. We submit respectfully, Your Honors, that when you read the language of the statute in which all of the -- when which the discrimination is prohibited, where they say to subject any particular person, port, gateway, locality, region, district, territory or description of traffic that you must relate all of those first words to the term or description of traffic, because that is only the separation. All of the other words are lumped together and only disjunctively separated by the term description of traffic which implies by description of traffic, they mean traffic in interstate commerce, and that the act was not intended to apply to persons or goods, not in interstate commerce. In fact, I think Congress intended that in the language that they chose from the fact that, of course, Congress gets its power to regulate interstate commerce through the Interstate Commerce Clause, that is to regulate commerce between and among the states and that would necessarily apply to the carrier in the interstate commerce and it would necessarily apply to the goods that he carries in interstate commerce, and of course, this Court has held and it also applies in areas where interstate commerce would be affected or it would be a burden upon interstate commerce which you do not have here. In addition to that, we would also submit that nowhere in the Interstate Commerce Act or the Interstate Commerce Clause of the Constitution that you find any authority for a person to go on to private property of anyone even in interstate commerce carrier and engage in a demonstration which that commerce carrier doesn't want him to do.
John M. Harlan II: You haven't dealt with the argument as to vagueness?
John F. Ward, Jr.: Correct Justice Harlan, I'll do that right now. They allege that this act is so vague and uncertain that a reasonable man would not know what his conduct was. We submit that in almost every state in the union and almost -- and cities throughout the nation, you have ordinances and statutes which are worded almost identical to this. And the authorities which we have cited in our brief, it has been pointed that it would be almost impossible to require a legislature to sit down every specific act that could constitute the charge of disturbing the peace, the common law disorderly conduct. We submit that in this particular statute, we have set down some specifics and then an additional clause to cover any other act committed in such a manner as would foreseeably disturb and alarm the public. Under the cases, including the cases of this Honorable Court such as the Nash case in which you were involved with an anti-trust statute which certainly appeared to me to be far more complicated than this statute, you found that the criterion was -- would a more -- would a different conduct have been more circumspect under the circumstances. We submit using that criterion that you used in the Nash case on an attack of vagueness of the statute, using that criterion here, we think certainly, there is no doubt that these people knew that the acts which they were committing could foreseeably alarm or disturb the public.
Potter Stewart: Mr. Ward, this -- these statutes has been on the books of Louisiana for good many years, is it not?
John F. Ward, Jr.: Yes, sir.
Potter Stewart: It's not a new legislation.
John F. Ward, Jr.: No sir, it's not. It's about 1930, I believe,(Inaudible)
Potter Stewart: Has there -- has there been any interpretation of -- by your state court, by the Supreme Court of Louisiana as to the -- as to the meaning of the subsection (7) in any case?
John F. Ward, Jr.: With respect to the case of State versus Sanford, I think that there has been and the fourth -- and that case did not apply the statute. They reversed a conviction under this particular statute, under the facts of that case which were similar to the facts in Cantwell versus Connecticut, which this Court decided which --
Potter Stewart: That was Jehovah's Witness case,
John F. Ward, Jr.: That's correct --
Potter Stewart: And that's in your brief, that case, isn't it?
John F. Ward, Jr.: Yes sir.
Potter Stewart: State against Sanford.
John F. Ward, Jr.: State versus Sanford.
Potter Stewart: Thank you.
Hugo L. Black: Is that under the foreseeable clause.
John F. Ward, Jr.: I believe that it was, yes sir.
Potter Stewart: That's the only Supreme Court of Louisiana case that you know -- a decision that you know of, involving subsection (7).
John F. Ward, Jr.: With this particular statute, yes sir.
William J. Brennan, Jr.: I think Mr. Greenberg said that it came under the predecessor statute, isn't it Mr. Ward?
John F. Ward, Jr.: No, sir. That's State versus Morgan that he's referring to there, where the person went on the plantation, again, I think Jehovah's Witnesses and the -- person ordered them to leave, he then went back to the farm -- other farms on the plantation itself against (Inaudible)
Felix Frankfurter: That's conviction -- that was a prosecution brought under (Inaudible)
John F. Ward, Jr.: Yes, sir.
Felix Frankfurter: It's not --
John F. Ward, Jr.: State versus Morgan, on the trespass.
Felix Frankfurter: Please clear up my ignorance about Louisiana law --
John F. Ward, Jr.: I'll try sir.
Felix Frankfurter: Namely, the constitutional restriction upon your Supreme Court to review only questions of law, is that right, under the Constitution?
John F. Ward, Jr.: That's correct. Yes sir.
Felix Frankfurter: You said a minute ago in answer to Justice Stewart's question that in the Sanford case, the Court found inadequacy or invalidity on the facts, did I mishear you?
John F. Ward, Jr.: No sir, no sir. That's correct. In the Sanford case, they --
Felix Frankfurter: Can you now explain that?
John F. Ward, Jr.: They said the under these -- under those facts, I'm not sure that I can Your Honor, but in the Sanford case, they did say that under the facts of the Sanford case, there is the Jehovah's Witnesses being on the public streets disseminating their literature in a peaceful manner, this statute was not the subsection and the statute was not applicable.
Felix Frankfurter: As a matter of law?
John F. Ward, Jr.: As a matter of law, that's correct, perhaps that's the explanation.
Felix Frankfurter: And therefore, they didn't -- therefore, they did have to consider the fact or did consider, and this is the one turning point, was it, that these events took place on the street, as one thing in Sanford.
John F. Ward, Jr.: That was my primary point.
Felix Frankfurter: Pardon me?
John F. Ward, Jr.: That was the primary point.
Felix Frankfurter: That was the primary point and two, what they did on the streets have constitutional protection.
John F. Ward, Jr.: That's correct.
Felix Frankfurter: And therefore, the statute couldn't be applied to the situation which if it were so applied, would be rendered unconstitutional, isn't that right?
John F. Ward, Jr.: That's correct. Yes sir.
Felix Frankfurter: Now, are we getting any comparable here?
John F. Ward, Jr.: No sir.
Felix Frankfurter: And then the other question that I asked Mr. Greenberg, your court can't go into the facts at all. The Supreme Court has no power to examine -- reexamine the facts as does the New York Court of Appeals, does it?
John F. Ward, Jr.: If I understand my own state Supreme Court probably Your Honor, that's correct.
Felix Frankfurter: Well, they say so, in this case.
John F. Ward, Jr.: That they --
Felix Frankfurter: Therefore --
John F. Ward, Jr.: The statement in their decision in this case.
Felix Frankfurter: Therefore, the total insufficiency of evidence to sustain a charge, I should think it's not reviewable -- the facts whether there is or is not any insufficiency unless you've say, unless the Supreme Court says, which you apparently said at least to my knowledge, that a total insufficiency raises the question of law. We haven't got any such situation on this record, do we? They simply say, “We can't go into the facts inside Article 21” or whatever it is, is that right?
John F. Ward, Jr.: As I understand the state appellate procedure, the Court leaves the question of facts or sufficiency of facts to the jury below in criminal cases. And will only discuss facts at all if then, and I'm not positive on this, Your Honor, is on the writs of certiorari, prohibition and mandamus -- under the supervisor's jurisdiction where there is alleged constitutional deprivation.
Felix Frankfurter: And that's the discretionary jurisdiction, is it not?
John F. Ward, Jr.: It is, yes sir.
Felix Frankfurter: Now then just as matter of curiosity, reading the constitutional provision, they wouldn't have a right -- there would be no appellate jurisdiction here at all in view of the fact that this was a sentence below the minimum set forth in the Constitution, isn't that right?
John F. Ward, Jr.: As a matter --
Felix Frankfurter: What?
John F. Ward, Jr.: I'm not disagreeing. I haven't read the constitutional article on jurisdiction recently, but it's my understanding that the Supreme Court has jurisdiction of all criminal cases regardless of fine. Now of course, in smaller amounts, you can start in a municipal court and appeal to the District Court, but it becomes a trial de novo. There from there, then you go to the State Supreme Court.
Felix Frankfurter: One of these days, when the case is all over and disposed off, would you hitch that up with your Article 21 of the Constitution, just as a matter of curiosity.
John F. Ward, Jr.: Alright.
Felix Frankfurter: Because plainly if you have jurisdiction only, the questions of law in cases of the capital offenses or murder or in cases where the sentence actually imposed is more than $300 or six months (Inaudible)
John F. Ward, Jr.: No.
Felix Frankfurter: And it's one that -- that's in the Constitution.
John F. Ward, Jr.: Oh yes.
Felix Frankfurter: And we haven't any such thing here, do we?
Hugo L. Black: May I ask you this because I have an idea but -- but the idea is a little different in what you said, I'm not sure. As I understand it, what they say is that de novo examination of facts speaking in the sense that our Constitution did in an appellate court, reviewing the facts to determine what the facts are, but as I understand your court, I have understood it that way heretofore, it will look at the facts sufficiently to decide whether or not the facts there show as what they call a matter of law, a situation which the Constitution says cannot take place there or forbids.
John F. Ward, Jr.: Yes, sir.
Hugo L. Black: That's been my understanding of what your state holds.
John F. Ward, Jr.: That's my opinion.
Hugo L. Black: And it does not mean that it never looks at the facts at all. It won't redetermine, determine guilt or innocence or to upset the facts under the -- that they have held to exist, but it will look at them in -- look at them in connection with the constitutionality of the act which in terms, which we sometimes review, I think, would mean as applied.
John F. Ward, Jr.: Yes sir.
Hugo L. Black: Making out a question of law.
John F. Ward, Jr.: That is --
Hugo L. Black: -- and maybe I'm wrong with that.
Felix Frankfurter: But that doesn't take care of the fact that in no criminal case they have the reviewing power unless the sentence is at least six months. I don't see how you can -- what kind of hocus-pocus of (Inaudible) to make in six months, ten -- what is it? $10 or $300, and was there punishment here, sentence imprisonment?
John F. Ward, Jr.: Yes.
Felix Frankfurter: How many -- it wasn't six months?
John F. Ward, Jr.: I was -- it was an imprisonment in lieu of --
Felix Frankfurter: How many months? 90 days --
John F. Ward, Jr.: 90 days I believe.
Felix Frankfurter: Now, lawyers can do all sorts of things in 90 days equal six months?
Earl Warren: We'll recess now -- your arguments.
John F. Ward, Jr.: May it please the Court, Mr. Chief Justice, I believe that I can conclude my argument in a very a few moments. I would like to attempt to clear up one thing. We have advanced the argument that a private property owner has the right to refuse admission to all of his property or a portion of his premises or to refuse service to anyone that he wishes and that this Court has never denied that he has that right. And as a corollary that if he does have that right, he has the right to remove the person by his own physical force or in lieu thereof, to call upon law enforcement officials to act for him. You have indicated in your questions that that is possibly acceptable as a legal proposition but that in the record you do not find facts which justify that conclusion. With respect to the Hoston case which is Kress' Department Store and Briscoe case which is the Post House Restaurants, in both records, you will find testimony in the case of Hoston, the Kress' store by the manager that he asked them to leave, that he told them they would not be served at one counter, but would be served at another counter that he feared a disturbance and that he himself called the police. In the Briscoe case, you find the testimony of the waitress that she told them they would not be served at one counter, but would be served at the other counter and that “we” as she put it, called the police. In both of those records, you find the man indicating the owner of the business or his agents, indicating that he did not wished to serve these people at that particular portion of his premises, and that he would prefer for them to go to another portion. Then, in the furtherance of that request, you find that he called the police to carry out -- carry it out for him. The police came at his request. They asked these persons to leave the lunch counter where the manager, the owner had already indicated he did not want them to be and it was only after they refused again to leave, the lawful direction of the police officer made at the request of the property owner that they would finally arrested and charged with disturbing the peace. We submit that at the very least in the Hoston record and in the Briscoe record, you have evidence to justify the conclusion that the manager or the owner of the property requested them to leave that particular area of his store and that in order to accomplish that request, he called the police department and asked them to carry it out for him. Now, in the Garner case, as Mr. Chief Justice pointed out, you do not have the call from the manager or owner of the store to the police department. You have the statement by the owner that he has never had facilities in his restaurant for the colored race. He had only facilities for the one and that he asked these -- told all these people that they would not be served. We submit that in the Garner case, the worst that could be said of it is perhaps that the police officer acted somewhat precipitously in trying to carry out his responsibility to prevent violence and disordering his community, but in the Hoston and the Briscoe cases, we submit that in the record itself, you have ample evidence of the request by the owner to leave this particular area of his store and to move to another area and when they refused to do so, a request by the owner of the lawful -- law enforcement authorities to carry out, to come assist him in carrying out his request. They then requested that these people leave and only after they were refused were the arrest then made. We think those two cases clearly come within the statute and that the convictions should be affirmed. We submit that in the Garner case, even without that facet of it, that the police officer and in line with the cases we cited, People versus Arko and People versus Nixon and the others that the police officer had the authority to act to prevent violence, that he had a right to foresee the possible violence it could result and that his request that they leave under these circumstances was not unreasonable and should have been obeyed and that their failure to obey the order amounted to a disturbance of the peace. In conclusion, I would say this. If I could, I would pull briefly from the editorial in the Morning Advocate at the time that these sit-in demonstrations occur. These are times that require understanding goodwill and patience regardless of how hard these things may sometimes come to some among us, the recognition and acceptance that really count cannot be hastened or (Inaudible) by any action that creates alarm, destroys goodwill or alienates the different groups in the community. Our society may have its imperfections as do all things of human desire, but this is not the way improvements will be brought about. Time and orderly evolution can bring progress. Force can bring none. We respectfully submit that in the interest of better relation between the races and the interest of reasonableness of peace and order, in the interest of all of the parties concerned, the shop owners, the demonstrators, the general public, these convictions should be affirmed. Thank you.
Earl Warren: Mr. Greenberg.
Jack Greenberg: May it please the Court. There are just a few brief matters to which I would like to refer and then we will conclude. The first is, I would like first to straighten out the matter of how the Girard College case came here. I think I now have it straight. They --
Felix Frankfurter: I don't think we need to take on it.
Jack Greenberg: Alright. Secondly, so far the reviewability by the State Supreme Court in this case, I think the state and the petitioners are now on agreement. These cases came up to the State Supreme Court on writs of certiorari and the State Supreme Court held in these cases that the rulings of the District Judge on matters of law are not erroneous and so substantively passed upon the questions of law. The questions of fact in the case which they said they could not pass upon are so far as these cases are presented here, questions of law, indeed questions of constitutional law because as in the Thompson case, it indicates a complete lack of facts in the record -- indicates a denial of due process of law. And so, the cases are here on matters of law which the State Supreme Court has ruled upon and has said that it can rule upon. I'd like briefly to refer to the Hoston record about which the state has made some reference and the testimony of the owner appears on page 30 of the record and makes quite clear just what he said, what he did and why he called the police. “After I finished my meal, I went to the telephone and called the police department.” “Why did you call the police department?” “Because I fear that some disturbance might occur.” “Why did you fear that?” “Because it isn't customary for the two races to sit together and eat together.” So he didn't call the police to arrest anybody and he didn't call the police because there was an actual disturbance or any appearance of any disturbance that was beginning to brew up. He just called the police as a cautionary measure and certainly not to eject these people from the store. In fact, he didn't even -- this is in record in which he did not even asked them to go to the counter on the other side. He was content to permit them to sit where they were. I think the state's argument in this case now has been made entirely clear in that the state agrees with the police officer as they testified. The court -- the trial court as expressed in its findings and implicitly the State's Supreme Court as it affirmed the trial court because the argument of the respondent here has been that the petitioners had no right to be there. That was repeated over and over and over again. The petitioners had no right to be there and we submit that that is what this case presents to this Court. The State of Louisiana was faced with a situation which involved the sit-in demonstrations. The state as a matter of state policy expressed in a resolution as recently as 1960, the policy of the State is segregation, statement of its Governors as recently as 1960, that he will preserve segregation in the State. General terms, looked around to see what it could find to apply to stop this situation. It didn't have a trespass statute even if a trespass statute would not be applicable. Mr. Ward admits that the tres -- trespass statute would not apply to the situation, had nothing else reached around and got this very general disturbing the peace statute, invented around to try to fit this situation in an effort to perpetuate the public policy of the State of Louisiana as expressed by its legislature at its most recent session. And we respectfully submit that this is something which the Fourteenth Amendment to the United States Constitution does not permit to be done.
Earl Warren: Very well.