PETERSON v. CITY OF GREENVILLE

Print this transcript Transcript: 

Argument of Matthew J. Perry

Chief Justice Earl Warren: Number 71, James Richard Peterson, et al., Petitioner, versus City of Greenville.

Mr. Perry.

Mr. Matthew J. Perry: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Supreme Court of the State of South Carolina.

The case involves principally the question of whether a state may arrest and convict petitioners of trespass where they sat at a white lunch counter in a business open to the general public and where a city ordinance required the policy of excluding Negroes to be enforced.

But the City of Greenville, South Carolina has an ordinance which is codified as Section 31-8 of the Code of the City of Greenville and which is reproduced in our brief at pages 2 and 3 and is in the record at page 49 which provides that any person -- it shall be unlawful for any person owning, managing or controlling any hotel, restaurant, café, eating house, boarding house, or similar establishment to furnish meals to white persons and colored persons in the same room, at the same table, or at the same counter.

And providing, however, that meals may be served to white persons and colored persons in the same room where separate facilities are furnished.

The ordinance then proceeds to describe the manner in which the facility shall be made separate.

S.H. Kress and Company is a large nationwide chain and it has a store in Greenville, South Carolina which caters to the general public including Negroes and the sale of more than 10,000 items.

However, Kress' as is -- in the case and other localities also has a food counter from which it excludes Negroes in obedience to local custom and in further obedience to the ordinance to which we have just referred.

Justice William J. Brennan: It's a counter with seats though, wasn't it (Voice Overlap)?

Mr. Matthew J. Perry: That's correct sir, yes sir.

Justice William J. Brennan: But that -- it's just a counter, it's not a restaurant or --

Mr. Matthew J. Perry: It's a lunch counter.

It's not a separate restaurant --

Justice William J. Brennan: With table --

Mr. Matthew J. Perry: It's not a separately enclosed restaurant, it's a lunch counter which has about 59 stools or seats placed adjacent to the counter.

Now, the custom to which I have just referred will be discussed later in this presentation.

On August 9, 1960, about 14 young Negro citizens went into a Kress store in Greenville, South Carolina and seated themselves at the lunch counter.

They seated themselves there and very shortly thereafter, Captain Bramlett of the Greenville City Police Department received a call by way of the radio at his police headquarters that there was -- there were some young colored boys and girls seated at the lunch counter around the Kress'.

This was the message that he received and according to the -- to his testimony, it was upon this -- receipt of this information that he and other officers proceeded to the Kress premises.

When he arrived at the Kress premises, he and the officer who rode with him met some other officers on the outside of Kress' and together, they went into the rear door and they found the young colored boys and girls seated at the lunch counter.

The lunch counter here is situated just inside the rear door and of course, as soon as they entered the store, they saw the young Negroes seated at -- sitting at the counter.

Now, there was Captain Bramlett and another patrolman from his office and when they arrived there, they found Officer Ohilia (ph) of the South Carolina Law Enforcement Agency also present and a number of other officers were in and about the premises.

Officer Ohilia (ph), a member of the South Carolina Law Enforcement Agency later testified that he works directly under Chief Strom of the South Carolina Law Enforcement Division who likewise or who also works under Governor Hollings, the Governor of the State is the Chief Officer then of the South Carolina Law Enforcement Division.

And the testimony is that the presence of Officer Ohilia (ph) on these premises was for the purpose of giving assistance to the local police.

But he also testified that his presence in any situation more or less reflected the attitude of the officer or the governor.

These young people were told later that the lunch counter was closed.

As a matter of fact, Captain Bramlett of the Police Department testified that shortly after his arrival, he heard Manager G.W. West, the manager, the local manager of Kress' state to everyone that the lunch counter is closing.

That Manager West then turned the lights out over the lunch counter and that thereafter when the young Negroes refused to leave, he, Captain Bramlett announced to all of them that they were under arrest.

Chief Justice Earl Warren: When they refused to -- by -- when they refused to leave, do you mean that they just didn't leave or was there anything sent to them by the management at that time?

Mr. Matthew J. Perry: There was nothing further said to them by the manager.

The --

Chief Justice Earl Warren: Handed anything --

Mr. Matthew J. Perry: They --

Chief Justice Earl Warren: -- up to this time, have they?

Mr. Matthew J. Perry: That is correct sir.

The petitioners merely declined to move.

And the testimony was that they sat there for a total of about five minutes and that Captain Bramlett and the other officers escorted them out and placed them under arrest.

Justice Byron R. White: Did they arrest everyone who was still there?

Mr. Matthew J. Perry: The evidence is that only the Negro petitioners were arrested.

However, there is also evidence that some white persons remained seated after the lunch counter was closed.

Now, Mr. West, the store manager stated that the white persons left also.

Chief Justice Earl Warren: All of them?

Mr. Matthew J. Perry: This was his testimony.

Of course, the -- there is evidence in the record which contradicts the testimony of Mr. West on that point.

Other witnesses testified that white persons kept their seats.

They remained seated and that of course only the Negro petitioners were arrested.

Four of the young people who were arrested were under the age of 16 and their cases were referred to the Juvenile and Domestic Relations Court of Greenville County.

The persons who were tried in the Municipal Court of the City of Greenville were found guilty of trespass and were given sentences of $100 or 30 days.

Their convictions were later upheld by the South Carolina Supreme Court.

The record here clearly shows state action which was prohibited by the Fourteenth Amendment.

I should like to state the items upon which we rely as constituting state action in this matter.

First of all, there is a statewide custom of racial segregation which is generated by state law.

South Carolina schools are segregated all the way from the elementary schools through to the college and university stage.

Negroes and whites may not work together in the same room in textile industries.

Circuses and travelling shows must provide separate accommodations for spectators.

Persons serving in prisons and chain gangs are required by South Carolina law to be segregated.

Steam ferries and railroad cars are required by law to provide separate facilities for whites and Negroes.

Station restaurants must provide racially separate facilities.

Street cars are required by law to do the same thing

It is a crime in South Carolina to give a white child to a Negro.

Intermarriage between the races is prohibited.

Justice Potter Stewart: I didn't understand that, it's a crime to do what?

Mr. Matthew J. Perry: To give a white child to a Negro.

Justice Potter Stewart: To give a white child --

Justice John M. Harlan: Adoption, you mean?

Mr. Matthew J. Perry: To give custody of a white child to a Negro.

Justice Potter Stewart: I don't -- I still don't understand that (Voice Overlap) --

Mr. Matthew J. Perry: Of course, the statute is cited in our brief.

Justice Potter Stewart: Alright.

Mr. Matthew J. Perry: And we respectfully call the Court's attention to that statute.

Justice William O. Douglas: You mean, hiring --

Chief Justice Earl Warren: You still have a --

Justice William O. Douglas: -- hire Negroes as babysitters?

Unknown Speaker: (Voice Overlap)

Mr. Matthew J. Perry: No sir, it does not cover the babysitter area.

Justice Potter Stewart: Oh, what is it?

I suppose it's a -- that's to give your child away to anybody, isn't it?

Mr. Matthew J. Perry: Well, of course in South Carolina there is a specific statute which goes beyond the -- any general law which covers this situation by further making it crime to give a white child to a Negro --

Justice Potter Stewart: Well, I suppose it's not vital to this case, of course, it was my curiosity.

Mr. Matthew J. Perry: Intermarriage between the races is prohibited.

All South Carolina parks are segregated by law.

The City of Greenville, South Carolina has an ordinance requiring racial segregation and that is in residential areas.

And of course, lastly but not the least, there is Section 31-8 of the Code of Greenville which requires segregation in eating establishments.

Unknown Speaker: How about the --

Justice Potter Stewart: Is there any of -- excuse me.

Have any of these statutes or ordinances been tested in litigation?

Mr. Matthew J. Perry: The packets of legislation which requires segregation in South Carolina parks is now the subject of litigation pending in the Eastern District of South Carolina.

The City of Greenville's ordinance which requires residential segregation is likewise the subject of both a civil action designed to have it declared unconstitutional.

And also one or more persons have been arrested under its penal provisions and appeals from the convictions which were obtained under this ordinance are now pending in South Carolina state courts.

As to the other clause, which are under question, of course the court is aware of the decision which accompanied this Court's rules -- ruling in Brown versus Board of Education, one of the cases was called Briggs versus Elliott which came from South Carolina and declared South Carolina's constitutional provisions which required racial segregation unconstitutional.

However, the constitutional provision itself nor the statutory provisions which were enacted pursuant to this constitutional provision have been repealed so the laws are still outstanding on the books and in fact schools are still segregated.

Justice Potter Stewart: Hundred percent?

For that?

Mr. Matthew J. Perry: 100%, that's correct.

Litigation is now pending on that particular subject in South Carolina.

Justice William O. Douglas: Whatever happened to that South Carolina case that was up here when we decided Brown versus the Board of Education?

Mr. Matthew J. Perry: One phase of it is now pending (Voice Overlap) --

Justice William O. Douglas: The same case?

Mr. Matthew J. Perry: Yes sir.

Justice William O. Douglas: Yes.

Mr. Matthew J. Perry: Well, no sir.

Since that time, a new case has been filed by reason of certain reorganizations of School Districts in Clarendon County.

The name of that suit is Brunson versus Board of Trustees of Clarendon County and the phase of that litigation is now pending in the Fourth Circuit Court of Appeals.

I believe that that would cover the court decisions which have been made with reference to the laws which I have mentioned and the litigation which is now pending in reference to them.

Another item of state action that we rely upon in this matter is that the independent action by the police in this matter in arresting the petitioners when their only crime was sitting at a white lunch counter was a state action which we think was prohibited by the Fourteenth Amendment.

And lastly, the conviction of these petitioners and their sentencing in South Carolina state courts.

The petitioners were -- of course, were convicted of the crime of trespass and of course this statute is set forth in petitioner's brief at page 2.

So that the evidence is that though petitioners were convicted of the crime of trespass -- in the name of the crime of trespass, they were in fact convicted of violating the segregation policy of the City of Greenville and of the State of South Carolina as is reflected by the ordinance which makes it a crime for white persons and Negroes to be given food accommodations in the same room unless those provisions are settled.

If, as the manager testified, H.S. Kress and Company maintained the policy of segregation because of the ordinance, then there could be no other conclusion than that the city by the ordinance and by arrest and criminal conviction has placed its authority behind discriminatory treatment based solely on color and we respectfully say that this is precisely what the record shows.

The manager testified at page 23 in the record in response to a question which was posed to him on cross-examination.

“Mr. West, why did you order your lunch counter closed?”

His answer was, “It's contrary to local customs and it's also the ordinance that has been discussed.”

Justice Potter Stewart: Where is the prior discussion of the ordinance?

Is that in the record?

Mr. Matthew J. Perry: There is quite a discussion on it which appears on pages 10 and 11 of the record in the cross-examination of Captain Bramlett of the Greenville City Police Department.

The question, “Does Greenville have an ordinance against conduct of this sort?”

His answer was, “We do.”

And over on page 11, “What is that law that police served?”

Answer - “It forbids colored and the white eating at the same lunch counter.”

Justice William J. Brennan: Was that formally (Inaudible) necessary to your procedure?

Mr. Matthew J. Perry: It is necessary in our procedure.

Justice William J. Brennan: It is not?

Mr. Matthew J. Perry: It is necessary sir.

Justice William J. Brennan: It is, yes.

Mr. Matthew J. Perry: But the court excluded this item of evidence under the theory that it had nothing to do with the issues before the court.

Justice William J. Brennan: Where does that appear?

Mr. Matthew J. Perry: At the -- it appears a number of places in the record.

Justice William J. Brennan: Well, I mean -- I gather what you're saying is you made a formal offer of it in evidence and that --

Mr. Matthew J. Perry: Yes sir.

Justice William J. Brennan: -- the offer was refused?

Mr. Matthew J. Perry: That is correct.

Justice William J. Brennan: Can you tell me where that appears?

Mr. Matthew J. Perry: Very good, sir.

Justice William J. Brennan: Don't waste -- you can give it to me later.

Mr. Matthew J. Perry: Alright, that's very good sir.

It was mentioned on pages 10 and 11, however --

Justice William J. Brennan: Yes.

Mr. Matthew J. Perry: -- at the end of the trial, an offer was made and of course the court ruled this line of evidence out.

Perhaps later in my discussion I can refer the court to the exact page.

Thank you, sir.

Justice Arthur J. Goldberg: We, of course, didn't mean to interrupt you.

Mr. Matthew J. Perry: Thank you, sir.

Justice William J. Brennan: Yes, that Section 31 (b) is amended, right?

Mr. Matthew J. Perry: That's a misprint, 31-8 as amended.

Now, these petitioners' arrests and convictions then result directly from the segregation command of the City of Greenville and not from any individual or corporate business decision or preference of the management to exclude Negroes from the lunch counter.

The City of Greenville determined that the petitioners' conduct would be unlawful even if the department store consented to serve them at the lunch counter.

Justice John M. Harlan: What is the situation in Greenville now?

Mr. Matthew J. Perry: The lunch counter at Kress' is still segregated and it is my understanding that this policy still prevails throughout the Greenville community.

Justice John M. Harlan: As a matter of interest, are there any restaurants -- any restaurants of this kind that are -- become desegregated?

Mr. Matthew J. Perry: In Greenville or in South Carolina?

Justice John M. Harlan: South Carolina.

Mr. Matthew J. Perry: In Columbia, South Carolina, there are several stores including the Kress store located in Columbia.

Justice John M. Harlan: Are there ordinances there too making it --

Mr. Matthew J. Perry: No sir.

Justice John M. Harlan: None?

Mr. Matthew J. Perry: There are none.

So our contention is that by enacting first that persons who remain in a restaurant when the owner demands that they leave are trespassers and then enacting that restaurants may not permit Negroes to remain in white restaurants, the State of South Carolina and the City of Greenville have made it a crime, that is the crime of trespass for a Negro to remain in a white restaurant.

And we respectfully say that this contravenes the Fourteenth Amendment as has been so held in a number of cases by this Court.

May I save the rest of time please.

Chief Justice Earl Warren: You may.

You may.

Mr. Snyder.

Argument of Theodore A. Snyder, Jr.

Mr. Theodore A. Snyder, Jr.: May it please the Court.

Before getting into the legal issues, there's just one part of the factual statement by Mr. Perry that I would like to mention and that is the remarks he made concerning some of the testimony that it was testified by the store manager that prior to the time of the arrest, all of the white customers departed as a result of his request for everybody to leave the lunch counter.

One of the defense witnesses testified to the contrary that all of the white customers did not leave as a result of the manager's request.

That presented squarely to the court below, to the trial court and to the -- a question of facts to be decided in the case and it is to be decided by the trial court on those facts that the white people did leave at the request of the manager.

Now, that holding by the trial court, we submit, is conclusive upon this Court because it is amply supported by the facts in the case.

Now, getting into the legal issues, there seemed to me to be perhaps three basic issues in this entire case.

The first thing you have to get to when you discuss these cases at all is the question of not whether a person who runs a restaurant or any other kind of store has a right in the first analysis to choose the people with whom he would do business.

If he has no such right, then the whole thing is ended right there.

You have to resolve that issue first.

Now, let's look at the case here and see whether or not this retail store who, as a restaurant there, does have that right.

You have to go back to decide that first of all to the common law.

And you will find when you go back that there is no statute in the case which discussed this, so you have to rely on the common law.

You'll see what the rights of restaurant owners have been in the times has placed and you will find, when you examine that that shopkeepers and people who did business with the public in general had a right under the common law to choose, to select those people with whom they would do business.

And they have that as an absolute right.

Now, that rule was not without exceptions and we have to admit that.

The first exception and probably the most important exception as the case of innkeepers and you have to look at the facts or the rules, see why it was that innkeepers would treat it different and the facts that for the different treatment of innkeepers bring out the facts of life as they existed in England at time those rules grew up.

And they showed that as far as the innkeepers were concerned, that was tied in with travel in those times.

And that was the time when the roads were very poor, when travel was slow either by horseback or coach and you couldn't make much time.

There was also a time when law enforcement was not as good as it is now, and there were a lot of robbers in highways and we read about it in the novels at that time, who were prevalent on the highways.

So, that a traveler travelling alone had to have some sort of protection.

He had to have a place to rest his horses or his means of conveyance, get feed for them, and he also had to find a place to obtain provision for himself and the place of safety and comfort overnight during the time when it was hardly possible to travel.

So that made the reason for the distinction of innkeepers in the first place.

Now, the second class of things that grew up along with the (Voice Overlap) --

Justice William O. Douglas: Do you think those are relevant today?

Mr. Theodore A. Snyder, Jr.: I think they are relevant Your Honor.

I think it's relevant because it shows the reason why a proprietor has the right to select his customers.

Justice William O. Douglas: In the -- at a motel?

Mr. Theodore A. Snyder, Jr.: Yes sir.

I think that --

Justice Hugo L. Black: You mean a constitutional right to select his customers?

I don't quite understand myself why that's the primary -- where you have to stop, I just don't quite understand it.

Mr. Theodore A. Snyder, Jr.: Well --

Justice Hugo L. Black: Suppose it was a ruling of common law.

Common law in this country, every way I know of, it can be changed by statute,

Mr. Theodore A. Snyder, Jr.: Yes sir.

Justice Hugo L. Black: You have a constitutional question.

Mr. Theodore A. Snyder, Jr.: That's right.

Justice Hugo L. Black: And the -- I presume the constitutional question is whether the Constitution itself forbids what has been charged here.

Mr. Theodore A. Snyder, Jr.: That's correct.

Justice Hugo L. Black: So a -- the state cannot pass a law one way or the other.

Mr. Theodore A. Snyder, Jr.: That's right.

Well, I think (Voice Overlap) --

Justice Hugo L. Black: Well, are you sort of raising a question that the state couldn't pass the law, are you?

Mr. Theodore A. Snyder, Jr.: No, we're --

Justice Hugo L. Black: (Voice Overlap) forbids this discrimination.

Mr. Theodore A. Snyder, Jr.: The state could pass such a law but having passed a law, there is nothing in the Constitution which requires the state to force a storeowner to give equal treatment to all who would seek to purchase something properly.

Justice William O. Douglas: Well, that's the question before us.

Mr. Theodore A. Snyder, Jr.: Yes sir.

I think that's the question.

And I -- as I say there is -- there's nothing -- the Constitution places no affirmative duty on a state to see to it that an operator of a store offer his goods to all who would seek them.

The Constitution leaves that area open as far as the storeowner's choice except insofar as the Constitution does not prohibit a state from passing a law changing the common law situation which existed prior to the Constitution.

Chief Justice Earl Warren: Well, it does prevent your state from passing the law and that would prevent restaurant owners from showing equal protection to all people, does it not?

Mr. Theodore A. Snyder, Jr.: Yes sir.

That aspect --

Chief Justice Earl Warren: Alright, how do you explain your ordinance then?

Mr. Theodore A. Snyder, Jr.: I explained the ordinance under that by saying that the ordinance does not make state action.

Now, Your Honor, you referred to the Equal Protection Clause, that brings us in to the Fourteenth Amendment which is this -- the section of the Constitution that we are under in.

And under the Fourteenth Amendment, as I understand it and how I understand the decisions under it, some state action must have taken place which deprives a citizen of either due process or some life, liberty or property.

Chief Justice Earl Warren: Well, does not the ordinance do that?

Mr. Theodore A. Snyder, Jr.: The ordinance does not do that, in my opinion, Your Honor.

It (Voice Overlap) --

Chief Justice Earl Warren: What does the ordinance do?

Mr. Theodore A. Snyder, Jr.: The ordinance which I concede is probably unconstitutional under the decisions of this Court, placed an obligation on the storeowner, restaurant operator to maintain separate facilities with a division, either of space or a wall, as the case may be and to use separate utensils and facilities for the accommodation of the two races.

Justice John M. Harlan: What's the --

Mr. Theodore A. Snyder, Jr.: Now --

Justice John M. Harlan: What's the date of that?

When was the ordinance passed?

Mr. Theodore A. Snyder, Jr.: I do not have that, Your Honor.

But I -- and I understand that it has been on the books for sometime.

It was in the Volume of the Code of the City of Greenville which was passed in 1953.

It came out in 1954.

It was slightly amended and now appears in the pocket supplement as amended.

But its predecessor, which was substantially the same, had been there for some time to perform that.

Justice Hugo L. Black: I must have misunderstood you.

I thought you said -- I must have been wrong that the ordinance didn't constitute state action, did it?

Mr. Theodore A. Snyder, Jr.: I didn't mean to say that the ordinance didn't constitute state action.

I am saying that the ordinance in the circumstances of this case is not state action which deprives these petitioners of any federally protected right.

Justice Arthur J. Goldberg: Mr. Snyder, how can you say that in light of the testimony in this record, I know you're saying that you agree that the ordinance played no part --

Mr. Theodore A. Snyder, Jr.: Yes sir.

Justice Arthur J. Goldberg: -- in what took place.

But Mr. West when he was asked the question as why he ordered the restaurant -- the lunch counter closed, is that on page 23 of the record, it was contrary to the local custom and that also the ordinance that have been discussed?

Mr. Theodore A. Snyder, Jr.: Yes sir.

Justice Arthur J. Goldberg: You ignored that in your brief.

Now, what could be that?

Is it relevant to what you're discussing now?

Mr. Theodore A. Snyder, Jr.: I didn't attempt to ignore it.

I think that what he is saying is, first of all, what he said on direct examination that it was contrary to customs which was the orders from the store headquarters which order was made without reference to the ordinance in which he would've had to follow, whether this ordinance was here or not.

And secondly, the fact that there is confusion in this record, when he says -- it's also the ordinance that has been discussed.

If you look back to see what he's talking about when he said, “That's the ordinance that has been discussed”, you received it in the prior testimony, the witnesses have been referring both to this city ordinance and the state trespass law under which the petitioners were convicted as an ordinance and it's not clear to which one he was referring.

Justice William O. Douglas: Well --

Mr. Theodore A. Snyder, Jr.: We think that he was referring to the state law.

Justice William O. Douglas: I'd -- I was thinking about perhaps even a better answer because on page 59 of the record, your court says that the warrant did not charge a violation of the ordinance requiring segregation in restaurants.

Mr. Theodore A. Snyder, Jr.: That's correct, Your Honor.

The ordinance requiring segregation in restaurants does not punish people like the petitioners.

Its prohibition runs only against the storeowner.

Justice William O. Douglas: But whether or not it does, this -- your court on page 59 says that they were not prosecuted under that ordinance.

Mr. Theodore A. Snyder, Jr.: They -- I think that's correct, I don't know.

Justice Potter Stewart: But that's not the inquiry.

The inquiry is what motivated the manager of this store to tell these people to leave.

And he says it's because of the ordinance as been discussed.

That's the point.

It's not what these petitioners were convicted of violating, it's what motivated the manager of this store to tell them to get out.

And he said it's the ordinance that motivated him.

Mr. Theodore A. Snyder, Jr.: He said -- yes sir.

He -- in two parts, first this company's orders and --

Justice Potter Stewart: Local custom and this --

Mr. Theodore A. Snyder, Jr.: Yes.

And --

Justice Potter Stewart: -- company's policy to follow local custom --

Mr. Theodore A. Snyder, Jr.: And ordinance, and we say that --

Justice Potter Stewart: -- and the ordinance.

Mr. Theodore A. Snyder, Jr.: We say -- that when he said that the ordinance as been discussed, he is referring to the state trespass statute.

Unknown Speaker: How is that --

Justice Potter Stewart: How could that motivate -- excuse me.

Unknown Speaker: (Inaudible)

Justice Potter Stewart: That's right.

Unknown Speaker: (Inaudible)

Mr. Theodore A. Snyder, Jr.: It didn't only --

Unknown Speaker: Do you mean the right to his property?

Mr. Theodore A. Snyder, Jr.: That's right and that's -- I don't mean to say that it motivated him but aware that he had that right, he acted as he did.

If he has not been aware of that right, he might have taken some other act, could've done something different.

Justice William J. Brennan: (Inaudible) to me when we were referred at page 46 to the offer of the ordinance we're talking about, now, not the trespass one, but this one involving separate seating.

It was offered and the offer refused it, at page 59, your court says, Supreme Court says, “The ordinance was made a part of the record upon request of defendant's counsel.

The defendants were not charged with having violated any of its provision.”

Is that ordinance properly in the record?

Mr. Theodore A. Snyder, Jr.: I think it is.

Justice William J. Brennan: It is.

Mr. Theodore A. Snyder, Jr.: I think it was sort of incorporated in the evidence in -- for the purpose of allowing the petitioners to argue about it because they --

Justice William J. Brennan: The point then --

Mr. Theodore A. Snyder, Jr.: -- made that point.

Justice William J. Brennan: Then it is in the record for our consideration?

Mr. Theodore A. Snyder, Jr.: I think it is.

Justice William J. Brennan: Thanks.

Mr. Theodore A. Snyder, Jr.: Mr. Perry, in his argument, discussed the question of whether or not you have state action here as a result of state law and the custom behind that is generating a massive body and he cited all of these various statutes.

The biggest part of those statutes, however, are either dead well as for example the one is textile mills requiring various separate facilities in textiles.

That has never been enforced in any way.

The public library in the City of Greenville is operating on a completely unsegregated basis.

The bus and railroad stations are unsegregated and that there is no policy of segregation in them at all, likewise, the airports which is operating on a separate and independent thing.

So, we submit, first of all --

Justice Potter Stewart: What about giving your baby away?

Mr. Theodore A. Snyder, Jr.: That law, as I understand it, refers to either adoptions or cases similar to adoptions were the custody of a child might be placed with somebody by a court prior to adoption or placing a family or an orphan with somebody who wants to raise it up.

So, it would be also (Voice Overlap) --

Justice Potter Stewart: To the kind of a foster parent?

Mr. Theodore A. Snyder, Jr.: Yes sir.

Because as far as we do have a law which permits the indenture of (Inaudible), but I think that would be the same rule, you reach the question on custom where you consider that in addition to the fact that law was in effect won't support us to the custom, we submit can never have the force of law.

Custom is something that's too tenuous to actually be so strong as to be a law and to be state action in the case.

There's no way, we submit, for anybody who can be charged with violating the law to be charged with violating a custom as law.

The man that would be ex post facto, when I think, if a man were charged with a crime for example for violating a custom, how would he know that?

How would he know about it?

How would one ever know when a custom changed?

How could you have anything that would give any certainty to anybody regarding a custom to -- if you were to say a custom could have the force of law.

We submit that it does not.

We think that the primary issue here is first of all whether or not this man had the right to eject anybody that he didn't have in his premises or take this trespass statute to help him if he didn't want to take the law in his own hands to do that.

And under our law, under the trespass situation, if you didn't go to a -- if you didn't first used the law, he would have the right under the decision in our cases to protect his own private property by ejecting trespassers who would be people who would refuse to leave his property when he asked them to and wouldn't obey his orders, he would have the right under our law and I think properly under most state law that to use whatever force was necessary to reject such person.

Now, the law does a favor to people taking the force of law into their own hands.

The troubles that would arise if a man, a store owner or anybody took it upon himself to throw out, people who refuse to obey his order to leave, would be a multitude of problems, you're going to have not only mild resistance, you're going to have cases where people resist with a great deal of force and it can lead to not only broken bones but deaths, and that's something that nobody wants to have.

That is a case -- in that case, where a landowner or property owner or a storeowner should be permitted to resort to the law with the force that could be administered impartially and with an even hand.

Not something where he is in there fighting and strangling and using force in a prejudiced manner where his personal interest are so involved.

He needs somebody from the outside that is not personally bound up in the use of that force.

If you don't do that, you're going to have a question of whether or not a man can use his own force.

You're going to come to the situation, for example, if it was to be held that a man could not resort to a statute like this, to eject anybody that he doesn't like.

He's going to come to a situation where everybody is going to have to take the law under their own hands and you're going to have to hold that by virtue of enacting the law is the -- is this city ordinance requiring segregation, you're going to actually by letting a city enact an unconstitutional law, deprive a landowner of the right that he otherwise would've had under state law which permitted him to use state force to protect his property rights and eject trespassers.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Theodore A. Snyder, Jr.: Yes sir, he -- yes sir.

I think he did, not explicitly but in the sense that he telephoned for the police to come there and that when they came there he requested the petitioners to leave.

And in the presence of the police who heard the request, they refused to leave, were given unreasonable opportunity and did not leave which constituted a misdemeanor committed in their presence.

And I think that the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Theodore A. Snyder, Jr.: There was never -- I admit.

There was never any expressed request by him to arrest them in formal words.

But I say that the facts show that there was a request.

Chief Justice Earl Warren: Was there a formal request for the police to come --

Mr. Theodore A. Snyder, Jr.: Yes.

Chief Justice Earl Warren: -- by the manager?

Mr. Theodore A. Snyder, Jr.: The manager testified to that.

Chief Justice Earl Warren: -- that he did that?

Mr. Theodore A. Snyder, Jr.: That he asked one of his subordinates to telephone the police to come to the premises.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Theodore A. Snyder, Jr.

Chief Justice Earl Warren: James Richard Peterson et al., Petitioner, versus City of Greenville.

Mr. Snyder you may continue your argument.

Mr. Theodore A. Snyder, Jr.: May it please the Court.

One of the chief issues in this case as well as the other cases which is in the brief before you gentlemen is the question of freedom of speech whether or not these petitioners were exercising any right of freedom of speech when they staged this “sit-in” demonstration.

We submit that they were not.

First, of all in considering the question of freedom of speech, you have to consider where the traditional area for speech in public speaking has taken place in this country and we found on looking at cases that the traditional area of speech where you have people who -- to begin with or not (Inaudible) to speak in detail, as between the associates or friends in a private discussion, is that they have to meet in the public places for that discussion, that is on the streets, in the park, in the places where ordinary people would come together who had something that they wished to talk about.

Then we think it's proper that people should have the freedom to speak to each other and try to convince others of their views when they meet on public places, in a place like that, and we think they have a right go there to try to convince others of their thoughts, of their ideas.

You go a step further, however, when you have a person who wishes to try to convince someone else of his ideas and thoughts when he goes onto that man's private property to do so, and that's what you have in this case.

The petitioners who claimed they were exercising the right of speech had left the traditional area of speech which is out in the public and out in the open and they have gone inside the store where they now seek to speak not to the other public in general, not to someone who may be by chance coming down the street, but where they had seek to speak to the owner or the manager or the operator of these particular premises.

So they have narrowed down in two ways from first, they have moved away from the traditional area of speech.

And second, they have moved in and they have narrowed their desire to speak to a particular person and not to speak to anyone in general or to anyone who may be happened to be present.

Now, they might have that right and we don't deny that they have a right to go to the store, to attempt to speak to the manager, or to anyone that may be there.

They have at least the right to make an attempt to go there and begin a conversation.

But we submit that they do not have a right to stay there and force the person they found there whether he might be the manager or someone else to stay and listen to their ideas.

They have no right to force him to listen to them on his own property when he does not desire to listen to them.

If he does, he takes away from that person his right of speaking himself.

He has no chance to do anything else.

The law even in the public places has, as it's concerning freedom of speech here before, has given the right of the person that he has spoken to either to refuse to listen or to require the person who would speak to move away.

For example, in Cantwell against Connecticut, you had a speech problem with the persons that -- where they would be listeners after they had heard all that they desired to hear, require the speaker to move on.

They moved on themselves to -- because they didn't want to hear anymore and they have that right.

You have the same question in the Doorbell cases where on the grounds of freedom of religion, a person has the right to ring a doorbell to someone, the householder, but the householder is not required to stand there and listen to whatever the speaker may have to say.

He has a right if he does not agree with the person to require him to move on.

He is not required by any measure for freedom of speech to engage in a conversation with that person if he does not desire to and that's what you have in this case, where the manager after he had heard the side of the argument presented to him by the petitioners, didn't desire to negotiate with them, didn't desire to discuss the question with them any further, and he asked them to proceed about their own business somewhere else.

That was his right.

He didn't have to sit there and listen to their demands hour after hour.

When he had told them that, their duty was then to proceed and take their conversation somewhere else.

Justice Arthur J. Goldberg: Mr. Snyder, would you mind at this point if it doesn't disturb the course of your argument, saying a word about whether -- in connection with whether the manager was operating under his own esteem as were in this area about the propriety of the trial judge's action in refusing to permit Mr. Perry to inquire into the question of whether or not there had been prearrangement with the police to take action in connection with the “sit-in”?

Mr. Theodore A. Snyder, Jr.: I think in that connection Your Honor that the petitioners would have had a right to prove if they could have.

The fact that there was a prearrangement with the police in which the police had directed the store manager or the storeowners to take the course of action that he did.

Justice Arthur J. Goldberg: Do you think it was foreclosed by this ruling of the trial judge?

Mr. Theodore A. Snyder, Jr.: They're not, sir, for several reasons.

First of all, after the first objection was made and sustained, the witness Mr. West's manager was asked for what reason did he then exclude the petitioners and his answer was not because of some prearrangement but because of the custom and the ordinance which had been discussed which was the ordinance to prove -- which we submit prohibiting trespass after notice.

Justice Arthur J. Goldberg: Now, wouldn't the -- would it not have been appropriate in connection with that answer to pursue the question of whether the police had in effect asserted the ordinance with him, because as I read the record and I am starting on page 22 where that offer was made, Mr. Perry was foreclosed by the judge unless he would persist after a judge's ruling which he could not very well --

Mr. Theodore A. Snyder, Jr.: But we were --

Justice Arthur J. Goldberg: -- pursuing that line of inquiry.

Mr. Theodore A. Snyder, Jr.: We would not require him to persist after his objection has been overruled, but on our procedure, Your Honor that man, who has been foreclosed in this manner, may if he desires and if he wishes to protect and sustain his objection there, should've made an offer of proof into the record which he had a right to do.

In other words, he could have stated for the record at that point about the waiver of proof what the testimony of the manager was anticipated to be on that point.

And he could have done that if he so desired, but he did not.

The fact that he did not shows to us the fact that the manager could not be expected to have testified as to any such an arrangement.

Justice Arthur J. Goldberg: Well, would you not read his comment after the objection was sustained as being equivalent to an offer of proof when he stated what he purported to bring out in this line of questioning?

Mr. Theodore A. Snyder, Jr.: No, sir.

I don't read it that way.

I understand what he was stating that his objection was that he desired to attempt to show by cross-examination but he did not state that he expected the manager to testify to that effect, which he would have had gone if he wanted to make a proof -- an offer of proof in the case.

In conclusion, just let me say that we have here under the Fourteen Amendment the question of whether or not you're going to -- you're going to have to balance two things really.

You have a property right on the one hand, in the hands of the property owner here.

On the other hand, you have the asserted right of these petitioners to a portion of their liberty.

This Court, is absolutely -- this has got to draw the line between those two rights which are both equally protected and as I read the amendment in the decisions of coequal rights.

The Court has got to decide whether or not one right would give way to the other in these circumstances.

We submit that in this -- in the case that is presented here and under its facts that the Court should decide that the property right of the owner of this property is paramount to the right of the petitioners to have their liberty there, on these premises, for the purposes for which they were present.

Thank you.

Chief Justice Earl Warren: Mr. Perry.

Argument of Matthew J. Perry

Mr. Matthew J. Perry: Mr. Chief Justice, may it please the Court.

Mr. Snyder in his remarks on yesterday referred to the innkeeper doctrine and stated that the innkeeper doctrine was not applicable in this situation.

We respectfully call to the attention of the Court that in the City of Greenville, South Carolina, a Negro traveling through the City of Greenville or in the City of Greenville on business or for whatever his purpose might be cannot obtain a meal on Main Street in the City of Greenville.

And this policy or custom is generated by state law and most especially by the ordinance which the store manager in this case testified he was acting upon.

Justice Arthur J. Goldberg: Are there any restaurants in Greenville where a Negro can be -- can get meals, do you know of, Mr. Perry?

Mr. Matthew J. Perry: There are a few restaurants which cater only to Negroes.

Justice Arthur J. Goldberg: Have not in the main section of town.

Is that what you're telling us?

Mr. Matthew J. Perry: That is correct, sir.

Justice John M. Harlan: Under your statute or under your law, the ordinance is properly in this record, is it not?

Mr. Matthew J. Perry: We contend that it is Mr. Justice Harlan and as I understood the remarks of Mr. Snyder on yesterday, the City of Greenville concede that it is properly before this Court.

Justice John M. Harlan: And the Supreme Court or Court of Appeals declined to consider the effect of the ordinance as I read it to claim.

Mr. Matthew J. Perry: That is correct, sir.

Justice Tom C. Clark: If a Whiteman went into a Negro restaurant would he be arrested?

Mr. Matthew J. Perry: There have been many contentions in this particular regard that a Whiteman would be so arrested.

But a --

Justice Tom C. Clark: Had there been any incidents of that kind?

Mr. Matthew J. Perry: Not to my knowledge.

Not in -- not in the whole State of South Carolina.

I believe of course as these cases will demonstrate, the demonstrations in some of the other cases involved interracial groups.

But none of the demonstrations in South Carolina which involved, I believe, more than 1200 young people involved interracial groups.

Justice Tom C. Clark: How many cases are awaiting trial of this kind?

Mr. Matthew J. Perry: A number of them are still awaiting trial, I would not have a guess as to the exact number, but I think that I can answer your question sir by stating that more than 1200 young people were arrested.

And this case of course was set down for hearing.

There are a number of other the cases in which petitions for writ of certiorari are now pending and a number of cases are still to be argued before the South Carolina Supreme Court.

I believe on next week, we have some nine cases set down for argument in the South Carolina Supreme Court.

Some of them have not yet been tried.

They seemed to be awaiting the outcome of this class of litigation before this Court.

Justice Hugo L. Black: I don't quite understand -- do I understand you to say that you believe that this ordinance would not be enforced against white people who went into the restaurants set apart for Negroes?

Mr. Matthew J. Perry: No, sir.

I did not say that.

Justice Hugo L. Black: I didn't think you were --

Mr. Matthew J. Perry: Thank you sir.

Mr. Snyder says here that the ordinance in this case did not punish the petitioners but was -- would punish the manager had the manager sought to serve both whites and Negroes?

Unknown Speaker: Is it for (Inaudible)

Mr. Matthew J. Perry: May we answer that by pointing out that the ordinance in this case was not a mere (Inaudible) abstract exhortation to the manager but was obligatory in its terms.

And the manager was left without a choice and acted in asking these petitioners to leave his premises according to his testimony pursuant to the mandate of the ordinance.

Mr. Snyder said on yesterday that textile mills are not acting in accordance with the state's statute which prohibits the employment of whites and Negroes in the same room at the same time.

In answer to that, may we point out that the statute is still in effect on the books in South Carolina and where we permitted to go outside the record in this case, we can prove that the statute is still followed although with the State of South Carolina.

We understand however, that I may not make such a comment.

Mr. Snyder pointed out in his remarks on yesterday that the Greenville Airport in Greenville, South Carolina is desegregated.

May we comment on that in the following manner?

The Fourth Circuit Court of Appeals required the Greenville Airport Commission to desegregate that airport and the same counsel in this case before this Court today were counsel in that case.

Mr. Snyder has alluded to what he believes to be the primary issue in this case, namely, whether the proprietor of a business establishment has the right to select his customers on the ground of race.

We respectfully say that whatever right of personal choice a proprietor has to make personal distinctions, the limits of that privilege certainly seems to be reached when the person exercising it turns to the state for assistance.

This seems to be what happened in this case.

The store manager acting not upon his personal choice but upon the mandate or pursuant to the mandate of the City of Greenville and of the State of South Carolina and following its broad plan of keeping the races separated in every area of life in South Carolina chose to tell this man to segregate white and Negroes seeking to eat in the premises of his business.

In Shelley against Kraemer, this Court said, the Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals.

We respectfully say to this Court that this is what has happened in this case.

That whatever right of personal choice the manager of Kress' had in this case, he did not use it.

He turned to the State to enforce it's -- the state's policy of racial segregation.

Justice Hugo L. Black: Does your argument -- that particular argument go -- would it require the guest, that the man goes into another man's property, store, anything, and the man doesn't want him there and he had a perfect legal right to tell him so that the State couldn't protect him in that right, (Inaudible) by the police officers?

Mr. Matthew J. Perry: Well, Mr. Justice Black, may I suggest respectfully that the record in this case does not show that the --

Justice Hugo L. Black: Well, I know --

Mr. Matthew J. Perry: -- manager didn't want them there.

Justice Hugo L. Black: I'm asking about the argument you have just made.

Mr. Matthew J. Perry: I believe that sir the Constitution would not confer upon him the right to – to demand that the State action which would --

Justice Hugo L. Black: It could mean -- the idea of the law under -- the right of the courts to have laws, to keep all personal difficulties and keep things from being settled by force and violence, is that if the citizen has a right under the law, first, a valid right to do something, that if the State can come in and protect that right with its officials, that usually been the case, are you saying that that is not the case?

Mr. Matthew J. Perry: I certainly would not go that far sir.

But in a case like this one where the manager of Kress', the Kress Company has opened its entire premises to the public and has said to the public, “Come one, come all.

We have for sale here more than 10,000 items, hue, white, black, red, and yellow are invited to come here and purchase”.

Justice Hugo L. Black: Then you're --

Mr. Matthew J. Perry: But --

Justice Hugo L. Black: -- denying it to have a legal right, I understand that argument and I understand the other one, I think.

I thought I did, but that -- I just wanted to know if that was your position, the State is without power through its police force and its officials to protect people, people's right on the assumption that they have the right.

Mr. Matthew J. Perry: I would not go that far sir.

Thank you very much.