BROWN v. LOUISIANA
The Audubon Regional library operated three branches and two bookmobiles. Blacks were not allowed to enter any of the branch libraries. The bookmobiles were segregated: a red one served only whites and a blue one served blacks. Brown was a black man who entered a library branch with four other blacks and requested a book, The Story of the Negro. The librarian informed Brown that the book was not available, but that she would request it through the state library, and he could pick it up or have it mailed to him. After the conversation, the men sat down (making no noise or disturbance) and refused to leave. They were arrested "for not leaving a public building when asked to do so by an officer."
Did the actions of the arresting officer infringe upon Brown's (and his companions') freedom of speech, assembly, and freedom to petition the Government for redress of grievances as protected by the First and Fourteenth Amendments?
Legal provision: Due Process
The divided Court found that the actions of the police violated the Constitution. Justice Fortas argued that states may only regulate the use of public facilities in a "reasonably nondiscriminatory manner, equally applicable to all." Maintaining separate library facilities clearly violated this principle. Fortas also reasoned that the demonstration did not disturb the peace of other library patrons or disrupt the library's activities; the time and method of the sit-in were carefully chosen and executed. Justice Black dissented, joined by three other justices. He argued that the First Amendment "does not guarantee to any person the right to use someone else's property, even that owned by government and dedicated to other purposes, as a stage to express dissident ideas."
Argument of Carl Rachlin
Chief Justice Earl Warren: – petitioners versus Louisiana.
Mr. Carl Rachlin: Mr. Chief Justice, and may it please the Court.
After trial, petitioners were convicted by a judge sitting without a jury of violating La. Rev. Stat. 14-103.1, which states in substance that whoever with intend to provoke a breach of the peace or under circumstances such that a breach of the peace maybe occasioned thereby and subdivision (1) provides in substance crowds or congregates with others in or upon in a variety of different places both inside and outside public and private, including a public building and who fails to move on when ordered to do so by a police officer or any authorized person shall be guilty thereof.
The oral opinion of the court is filed on -- is referred to on pages 139 and 140 of the transcript herein.
Under normal Louisiana procedure, petitioners had applied for writs of mandamus certiorari in prohibition which writs were denied without opinion as referred to in the record below.
Justice John M. Harlan: What were the sentences in this case Mr. Rachlin?
Mr. Carl Rachlin: The sentence is Brown received a $150 or 90 days.
The other four petitioners received, I think it was $35 and 15 days.
Justice Hugo L. Black: Did you say $150 or 90 or $150 and 90?
Mr. Carl Rachlin: Or -- and -- I thought it was $150 or 90.
Justice Hugo L. Black: That's what I thought you have said.
Mr. Carl Rachlin: This Court granted certiorari on May 3, 1965 and they brought all appropriate proceedings in the court below.
The various constitutional and federal questions were raised which I hope to refer to during the course of my presentation.
On Saturday, March 7, 1964, shortly before noon, the Parish sheriff in Clinton, Louisiana, Mr. Doughty saw the petitioners, all Negroes, go past his place of office of business.
The sheriff testified that he had been expecting them all morning.
He further testified that he had heard that they, as members of the Congress of Racial Equality, were going to integrate the public library in Clinton, Louisiana.
As soon as he saw them on the street go past his place of private business and enter the library which is just a short distance from his place of business, he called the jail and directed his deputies to proceed to the library, and he himself shortly thereafter within a matter of moments went himself.
The sheriff had testified below that up until that moment, he had never observed any Negroes enter the -- this library which is part of a three Parish system involving three buildings and two bookmobiles.
Justice John M. Harlan: Two what?
Mr. Carl Rachlin: Two bookmobiles, mobile library systems which I will refer to in a moment.
The three branches, the Clint -- the one and which we are concerned with here was the administrative office of the three Parish library system known as the Audubon Library.
And there was a -- in addition to the administrative office, there was a library there as well as in two other communities and two bookmobiles, a red one for White persons and a blue one for Negro persons and the blue bookmobile as the testimony in the record has been -- has indicated serves and has registered all the Negroes in the parishes, the three parishes with which we are concerned.
The testimony also indicated that if a White person had come to the blue -- blue bookmobile, that is the one for Negroes, such a person was refer either to the red bookmobile, that is for Whites or to one of the branches.
The Negroes weren't, according to the testimony, were never known up to this moment to have used any of the branch libraries.
In any event, Brown and the other petitioners herein entered the library and when met and I quote from the record by just giving the testimony of the librarian, “between the tables by Mrs. Reeves, the librarian” and this was in what was term by the administrative official of the library as the adult reading room which has sometimes been in the record below, been called the lobby.
Justice Potter Stewart: Mrs. Reeves was alone in the room when he's (Voice Overlap)
Mr. Carl Rachlin: At the moment she was alone, sir, yes.
Justice Potter Stewart: And these there were five of these people who entered the room.
Mr. Carl Rachlin: Five persons entered the library, all Negro.
She was -- her testimony was that she was alone.
However, at one point, the sheriff indicated that he wasn't certain -- he may have -- may or may not have seen another person enter but then the testimony was vague and that the hard testimony was precise, there was no one else in the library at that time.
Justice Potter Stewart: Was she behind the desk of some kind or --?
Mr. Carl Rachlin: She was -- no she wasn't.
She was moving around the library and as I indicated, apparently, she met them between the reading room -- reading table of some eight by four and her desk in that room.
In any event, Brown asked her for a book.
Mrs. Reeves testified that she went to the index system and was not able to find the book and indicated that she would have the book sent to Brown after she ascertained that he had been a registered member of the library.
Justice John M. Harlan: What was the book?
Mr. Carl Rachlin: The book was a book by a well known Negro writer; Arna Bontemps entitled “The Story of the Negro.”
There is a little conflict of testimony as to what took place thereafter.
Justice Abe Fortas: Mr. Rachlin, excuse me, doesn't the State say that there was no such book in existence?
Mr. Carl Rachlin: Yes, Your Honor.
The State indic -- the librarian indicated that that there was some confusion about the name but I think if you permit me, sir, the record shows that the library actually obtained the book from one of the state institution either Louisiana State University or Tulane and in fact as the record -- as it was admitted into evidence in the record, the book was mailed to Mr. Brown with a card saying that he could either return it by a mail or he could return it to the blue bookmobile.
That is part of the record of this (Voice Overlap)
Justice Byron R. White: But this -- this was a book by another name, by another author.
Mr. Carl Rachlin: They're very close but not identical, sir.
There's no question.
It was not the same --
Justice Byron R. White: But wasn't the -- wasn't the author that was given the library.
Mr. Carl Rachlin: Well, I -- it is hard to explain that.
I think the only answer is that the stenographer below did not correctly get the name of the author.
The author's name, if -- if you look at the -- there is a -- a certain overlapping of the names between the name that -- wrote down and the name of the book in fact and I think that was more --do more.
Justice Byron R. White: Does the -- didn't the communication sending it out say that this is not the book you asked for but --
Mr. Carl Rachlin: It's very close to --
Justice Byron R. White: -- by another author but it's perhaps what you want.
Mr. Carl Rachlin: But -- I think the examination shows certain and probably was in fact the same book that was merely a stenographic error in the court below.
But I -- that is of no significance because there's no question that we don't and we don't question whether the book was or was not there.
We think that is highly irrelevant to the proceeding and we're not disputing that Mrs. Reeves -- I don't -- we don't claim for a moment that Mrs. Reeves attempted to in some way prevaricate the truth.
Justice Tom C. Clark: Was the title the same?
Mr. Carl Rachlin: The title is very similar and I think it was a similar subject matter.
Justice William J. Brennan: [Inaudible]
Mr. Carl Rachlin: Well one was the -- the story of a Negro by Arna Bontemps, I can give you the correct title of the -- I have that here.
After she met them between the tables, they asked her for a book and what -- the -- the way it reads in the record on page 97, question, what is the name of the book that one of the accused asked for?
Answer, I copied it from the paper he handed me, Wendall Arna, the Story of the Negro: Bontems.
Now the reason I suggest without actually knowing so they did not participate in the trial is that Arna Bontemps is a well known Negro author and I think the whole thing was just a stenographic confusion with the name that was not at that time known to the -- the -- to the – to the actual stenographer.
Justice William J. Brennan: Now where does it appeal when the book (Voice Overlap)
Mr. Carl Rachlin: Now the actual book --
Justice Byron R. White: 112?
Mr. Carl Rachlin: I -- just for a moment, sir.
Yes, on 112 when -- on cross-examination of the administrative head of the library, Mrs. Perkins, the question was, I asked her in form of a statement.
I'll show you what purports to be a postcard of the United States postal service addressed -- I'll skip a few words to Henry Brown, Jackson, Louisiana which reads “Memo to Henry Brown from the Audubon Regional Library, bookmobile number two.
We are mailing to you on the separate cover the copy of Arna Bontemps: The Story of the Negro.
And then, neither the Audubon nor the state library could verify such a title by Wendall.
You -- you may return the book either by mail or to the book -- the blue bookmobile whichever way is most convenient.”
I suggest though, I don't think it's significant that this was just a confusion over the correct name of the author.
In any event as I've indicated and as the record shows, the choice of return was not in person to the library but either to the blue -- blue bookmobile, the Negro bookmobile or to the -- through the mails.
In any event, at this point, Mrs. Reeves wasn't certain whether Brown asked to see the United States constitution.
She asked Brown and the others to leave and they indicated that they would not.
They indicated that she testified quite clearly that all during this time, they maintained absolute quiet.
There was no unusual conduct or any disorderly conduct -- conduct of any kind.
No boisterous talk.
No noise talks because these all comes from the testimony of Mrs. Reeves by the way as well as the other witnesses who testified in behalf of the state.
She called her superior and he --
Justice Potter Stewart: Before -- I want to get one thing clear.
She asked them to leave before calling her superior.
Mr. Carl Rachlin: She asked them to leave.
Justice Potter Stewart: Well is it correct or not that she did not ask them to leave until after she had taken the order herself trying to find the book there, failed to find it, and then told them that she would send the book and let him know.
Mr. Carl Rachlin: That is correct.
She did not ask him to leave prior to --
Justice Potter Stewart: So there was no -- maybe I'm -- am I fairly stating the factual conclusion when I say there was no refusal of service by her to these people.
Mr. Carl Rachlin: There was no refusal to take the order, certainly that was true.
Justice Potter Stewart: Or of any other requested service?
Mr. Carl Rachlin: Well, there was some question as to whether they have – they had asked to see the United States constitution because the sheriff later testified that when he, at the time he asked them to leave, Brown and one of the others who was not identified by the sheriff said they wanted service and the sheriff refers specifically to the fact that there was a request discussion about the United States Constitution and as a matter of fact, the librarian herself when she -- that is the administrative head of the library, when she testified after Mrs. Reeves, she also testified there was discussion about the United States Constitution.
So that when I answered your question, it was not meant to be a base of it but merely that there was further discussion unquestionably and -- but there wasn't -- sir, I can't honestly say that she refused to permit them to see the United States Constitution.
She did however agree to take the order.
And that order, as I -- as the record shows was in fact filled by mail.
Justice Potter Stewart: Yes.
Of hand can you tell us where in the record this testimony about the constitution appearance?
Mr. Carl Rachlin: Yes.
Please bear with me for a moment.
I had it in my notes.
Justice Potter Stewart: Don't take the time, we will find it on our own.
Mr. Carl Rachlin: Well in any event, Mrs. -- Mrs. -- Mrs. Perkins, the administrative head of the library, indicated that there were couple of tables in this room variously referred to as the adult reading room, but I think Mr. Kilbourne at the trial as the lobby and the record on 101 indicates that they were both talking about the same room when he was questioning Mrs. Perkins.
And that, from time to time the public did sit in the reading room and -- and do whatever people customarily do in libraries.
As Mrs. Perkins came out, there was this talk about the Constitution.
I think that is referred to, Your Honor, on page 104, I think is where -- let me see -- well that's where -- I'm sorry, that is not -- that is not accurate.
Justice Potter Stewart: [Inaudible] testimony begins apparently in page 116.
I'm looking at (Voice Overlap)
Mr. Carl Rachlin: Well Mrs. -- well Mrs. Perkins also referred to the Constitution -- oh yes -- yes, on 108, Your Honor, near at the top of the page, question, of course a question by Mr. Bell here, isn't a fact that the defendant, Mr. Brown -- Henry Brown asked you for a book on the Constitution of the United States?
He didn't answer.
He did not ask me for a book on the Constitution of the United States.
Question - Didn't you previously testify about the Constitution?
He said to me, what about the Constitution which your reply was that we owned it -- that we owned the copy that we owned several copies.
In any event, Mrs. Perkins then shortly thereafter asked them to leave.
And again, in -- in --
Justice John M. Harlan: Well this episode about the Constitution or whatever it was, was this before or after they were asked to leave.
Mr. Carl Rachlin: This was -- this was after they were asked to leave by Mrs. Reeves.
Mrs. Perkins came out after they refused to leave when Mrs. Reeves -- after Mrs. Reeves' conversation.
In any event, Mrs. Perkins asked them to leave and again, as I say, there was this little conversation about the Constitution.
They did not leave, but again, there was no question they were orderly and not noisy.
At this moment, I refer back to what took place at the very opening of my presentation when the sheriff now comes in.
He had meanwhile assembled his deputies but this was only a matter of minutes at most, perhaps 10 minutes the whole incident took and the sheriff comes in.
The deputies came in separately.
No one had -- by the way, the record is very clear as to the sheriff had testified that -- that on record 107, that no one had asked the sheriff to come to the library certainly not at this moment.
Mrs. Perkins said, in her testimony that she was planning to ask the sheriff, but the sheriff proceeded on his own motion and arrived in about -- about 10 minutes after -- so after the incident had started.
Sheriff indicated -- asked to -- apparently ask Mrs. Perkins whether she'd asked them to leave.
She indicated she had asked them to leave and they had not.
He then asked them to leave.
At this point, Brown said, it was a public library and they wished a service.
And they -- this is on records 116 through 118 and they also said, according to the sheriff's testimony that they wanted to check out books and wanted, according to sheriff's testimony, at some point to integrate the library.
At record 120, the sheriff said as follows - I arrested them because the occupants of the building had asked them to leave and so had I.
It was a public building and they refused to leave.
On next -- the next question, probably succeeding question --
Justice John M. Harlan: Is it a fair – is it a fair assumption that the record shows that there really -- they are demonstrating at the library.
Mr. Carl Rachlin: Your Honor, I would not wish to draw that conclusion because they apparently wanted to use the library -- use the library.
Justice John M. Harlan: Why?
Mr. Carl Rachlin: Demonstration I suppose in a sense of I sat on a library where I was not.
Justice John M. Harlan: What do you mean they got to the -- they asked you the book they wanted after Mrs. Reeves has said, they couldn't find the book and asked them to leave, they didn't ask for any other books and just Constitution [Inaudible] --
Mr. Carl Rachlin: Well there is also this testimony that the sheriff himself said that they indicated to him that they wanted to -- to list on record 120, I think -- one second -- 118. The sheriff's testimony is that they said to him that they wanted to check out books and wanted to -- but they also wanted to [Inaudible] the library.
There's no question about that.
Justice William J. Brennan: Well is it a fair assumption that they would not have been there that morning?
Had they not have been viewed that the library is not open?
Mr. Carl Rachlin: I think that's a fair assumption, yes.
Justice Potter Stewart: You think what?
Mr. Carl Rachlin: I think that's a fair assumption that they -- there's a good chance they would not have been there on that day except for the fact that this library -- I think if I might add at this point that Mr. Kilbourne can bear me out shortly after the trial in this case, the library was closed and it's closed as stated.
Now that [Inaudible] and has been closed ever since as recently as Saturday of this week, I suppose permanently.
Justice Potter Stewart: The opinion of this testimony on page 118 of these people, the petitioners were from East Louisiana and West Louisiana.
Mr. Carl Rachlin: Yes, sir.
Justice Potter Stewart: How far away is that from this library?
Mr. Carl Rachlin: About 40 miles, they're all part of that one -- a three part type Parish library system.
Now this was -- they were all part of the library who administers it at Clinton which was the administrative head of the three Parish system.
Justice Potter Stewart: But East and West Louisiana were included in the library despite of the law.
Mr. Carl Rachlin: East Louisiana, West Louisiana and St. Helena Parish, I believe are the three Parish system.
Justice Hugo L. Black: Did the evidence of the policy directly against the policy of the library?
Mr. Carl Rachlin: Yes.
It was -- there was a substantial testimony given by a Mrs. Spears who until shortly before this proceeding, a Negro lady, had been a librarian there on the blue bookmobile.
Her testimony begins at 136 of the record.
And she, for example, in the middle of 137, questioned, what procedure is adopted in registering a person for books?
Well we issued a card to a person who filled the required information out and the card stamp with the word “Negro” and the date.
Now little further on, do you ever register any White persons to borrow books?
Her answer to that question was no.
And little -- at the end of the page, have you ever registered any White persons?
On the top of the next page, why is it that you haven't?
Answer - On 138, well the only persons who use the blue bookmobile is Negroes and the blue bookmobile serves the three parishes for all Negroes.
And occasionally if a White person would come to the blue bookmobile, I would give them a schedule telling them when the red bookmobile would come or the nearest branch to that.
That Negroes customarily used the branch library located in City of Clinton.
In addition, Mrs. Perkins had testified that to the best of her knowledge as administrative head of the library, every Negro who was registered in the library system, the three parishes was registered only in the blue bookmobile.
Chief Justice Earl Warren: Did they have any -- any library -- branch libraries specifically for Negroes?
Mr. Carl Rachlin: None at all.
The only sort the Negroes could use was the blue bookmobile or the mails there.
And as -- as indicated in this -- in the book in this very case, the one which was so mixed up about the title, the card that came to Brown indicated to return it either to the blue bookmobile or return it by mail.
And that was specifically as I say is part of this record.
And now the -- I think a significant question that was asked on page -- on the record 121 of the sheriff, so the disturbance of the peace if any in this case consisted of refusing to leave when order to do so by you, is that right?
Answer by Sheriff Doughty, that's right.
They were convicted as indicated and the judge in his opinion, I think also makes very clear in the middle of page 140 and I would like to briefly refer to that because I think it indicates what we consider the constitutional violation.
In the middle of the page, clearly this is the judge's all opinion.
Justice William O. Douglas: What were you reading?
Mr. Carl Rachlin: 140, sir, record 140, the middle of the page, this is the judgment -- judge's opinion.
Clearly the evidence shows that these parties did not congregate when they came to the town of Clinton to the Audubon Parish Library, merely for the purpose of seeking service that they had a specific motive and a specific intent.
And that was, as was shown beyond any reasonable doubt, to refuse to leave the library even after they had been served and after they had been requested three times.
Now the statute however in the -- is somewhat different.
And we -- this Court has had occasion to look into the statute and make well known in the case of Cox against Louisiana.
The statute says, whoever with intend to provoke or under circumstances such that a breach maybe occasion, crowds or congregates with others in any public place or building and who fails or refuses to move on when ordered to do so.
The sheriff arrested them as we've indicated solely because they refused to leave the public building in his mind at least as his testimony shows that would consisted nub of disturbance of a peace.
And as the judge indicated nub for disturbance of the peace, again, with the same thing to refuse to leave the library after they had been served and after they had been requested to do so.
Justice Abe Fortas: Well Mr. Rachlin, do you dispute a finding or a statement of the Court on page 140, the one that you just read.
Mr. Carl Rachlin: No, I -- I will concede that they refused to leave the library.
Justice Abe Fortas: And your point is that that statement is an indication that the arrest and conviction here were not authorized by the statute.
Mr. Carl Rachlin: But not authorized by the -- even -- well -- I think Your Honor, I have to say they were authorized by the statute because the Supreme Court of Louisiana affirmed without opinion the – the judge's ruling and therefore that is the -- the necess -- that is the interpretation of the statute Louisiana has.
And accordingly, we urge that the statute is unconstitutional for being as broad as to involve an illegal unconstitutional arrest upon people who committed no possible afterwards they could be arrested.
Justice Abe Fortas: Does it make any difference in your theory of this case whether Mr. Brown and his companions entered the library and asked for a book on the one hand or whether on the other hand, they just stand on the library and sat there.
Mr. Carl Rachlin: Frankly, Your Honor, that I -- we think that the library is a public building and the people have a right to be in a public building providing they are orderly and providing that they are not breaking any of the reasonable rules.
We certainly would recognize that the position that this Court has taken in Edwards and some of the other cases that the State has a right to set reasonable limitations and reasonable regulations for the use of public property.
And -- but that, they would in no way were they violating any regulation or rule that isn't -- was known to any of the parties of the record of this case.
They were there in the proper time of the library.
They behaved quietly.
The only question was whether the sheriff had the right under those circumstances to order them to leave and arrest –
Justice Potter Stewart: This question -- isn't the first question whether the lady in charge terms; has the right to ask them to leave.
Mr. Carl Rachlin: I think that -- I think that is a product in question.
Justice Potter Stewart: And wouldn't that -- this argue be perfectly reasonable regulation and the person in charge of the library decide when it was getting too crowded and after people had been served to ask them to leave?
Mr. Carl Rachlin: I would say Your Honor that would depend upon the circumstances.
There is certainly -- there was no such rule prior to the – their opinion.
Justice Potter Stewart: Well I know, you don't know.
And I don't know either whether there was any such rule but generally, a person in charge of a public place has some duties.
Mr. Carl Rachlin: Yes.
There's no question about that that the person on the place have some duties.
Justice Byron R. White: Well let's assume the -- assume the sheriff asked them to leave and they said no and then he attempted to eject them by force and they resisted by force.
Would this make any difference to you?
Mr. Carl Rachlin: If the sheriff had to use force first and they had resisted --
Justice Byron R. White: Oh no, they -- he asked them and they say “No, we're going to stay.”
And this is, “well, I'll have to remove you.”
So he uses force to remove them and they resisted by force.
Is this a different situation for you or would you just say, well they had the right to be there and whether they -- they could stay there if they wanted to.
Mr. Carl Rachlin: Well I would say that they were not substantially different situation even though there are a lot of facts in this case unfortunately.
Justice Byron R. White: That's -- that's
Mr. Carl Rachlin: Let's say a harder situation but I think the sheriff has the right to use force illegally then I have the right to use force illegally.
Justice Byron R. White: So you -- so you really do rely on the fact they have the right to stay in the public building in the library and just remain there as long as they're peaceful.
Mr. Carl Rachlin: And so long as the library is open.
I mean, I will -- I'm not raising the question whether I have the right to stay after hours.
Justice William J. Brennan: Well does your argument, Mr. Rachlin, that whatever maybe the regulation, that this statute should only read to non-peaceful conduct--
Mr. Carl Rachlin: That's right.
Justice William J. Brennan: And that on this sum total of facts, even though they didn't go when they were asked to leave, and even if that were legitimate regulation that they're not convicted, at least those proofs don't' add up to a violation of this statute.
Mr. Carl Rachlin: That's right and -- and if the statute is so interpret as to make this an illegal act and we --
Justice William J. Brennan: And this was the statute we had in Cox, isn't it?
Mr. Carl Rachlin: It's the same statute Your Honor.
They are the statutes of very long --
Justice William J. Brennan: What's left to that statute after our decision in Cox?
Mr. Carl Rachlin: Well the Cox part of the statute related to activities out in the open air.
Justice William J. Brennan: This is -- this is part --
Mr. Carl Rachlin: This is -- this is the same -- the same paragraph in the book but it hasn't.
It includes outside-inside public-private, all in subdivision one of --
Justice William J. Brennan: You don't argue that that there's nothing left to the statute after our decision of the Cox, is that it?
Mr. Carl Rachlin: I would say that Louisiana would be bound by the interpretation of this decision of-- of the Court -- of this Court in Cox and I think there probably is something left of the statute if interpreted probably for example in -- in the case that is so often cited by many of the courts, particularly in southern courts but northern as well as in New York, we, in New York has called People against Galert which -- which cited the proposition that you have an automatic obligation to obey an order of a police officer no matter how -- no matter -- under what circumstances made.
Well, in the case really, it does not stand on this proposition.
All I would hope that this Court would lay that proposition to rest particularly in light of its decision in Shuttlesworth which is not identical with this case.
It has many overlapping observations.
For example in Galbert the opening indication was that there was an actual obstruction of the street unhappy that there had been many people congregating on the street.
In other words, the presupposition of facts in Galprin was that the speed was obstructed and the police officer therefore asked everybody to move on.
And in fact Judge Lehman there made it very clear when he said the police officers are not the final arbiters of the rights of citizens.
So that for reasons that we have set forth specifically in our brief, we urge that this is -- the connection must be reversed that the interpretation of the statute by Louisiana is an unconstitutional interpretation, it is hopefully broad.
It does advice citizens of how to perform under this Act any event the Act was -- as Judge Harlan was suggesting was perhaps that the First Amendment right that we think ought to be protected.
And lastly our argument -- next, our argument is that the -- that the -- there was a -- we think there is any statement here under the Title 3 of the Civil Rights Act because the Title III was passed several months -- and that the Act was passed several months after the arrest here and Title III made it very clear that these -- that such -- we think that such kind of this was legal conduct.
And therefore any statute which made it illegal was improper.
Justice Potter Stewart: The difficulty with that argument and it was much of what you said this morning for me is that this -- there was no refusal of service to these people.
They were served and I've just look through the record again.
As far as I find every request that they made was responded to with courtesy and with service.
That -- that is the ultimate basic crucial fact that for me makes much of your argument irrelevant.
I mean because it's -- it's -- this is unlikely of these other cases that you've been citing to me.
Mr. Carl Rachlin: Well Your Honor, I think that in a sense and if it's known, this is a common not library.
People will have to -- I don't think the person has an obligation to explain his presence in a public place and I would hope that -- that this Court would recognize that there were times and occasions where you don't have to tell why you're at some place.
You may have a right to stay there providing your behaving in an orderly and proper manner.
The record is clear that these people are behaving in a properly orderly manner.
And to me, at least if you permit me, sir, it is highly irrelevant whether they were or they would not served.
They were in publicly owned building doing nothing to disturb anybody.
The only reason they were rejected is because they were the first Negroes to enter that building and the record is clear on that and the sheriff himself said he hadn't seen any Negroes in there before.
Justice Potter Stewart: But he said he'd only been to the library twice and it's all a lot.
Mr. Carl Rachlin: His office is just down the block and he said he saw.
Maybe it's a -- I trust it's not a perfect commentary on life in Clinton and I'm sure Mr. Kilbourne could indicate that there are many more people who use the library more often than twice.
I would think that to me, sir, the nub of the case is the right not to have to explain yourself when you're behaving yourself properly in a public place.
Chief Justice Earl Warren: Mr. Rachlin, I didn't quite understand your answer to Mr. Justice Fortas about this finding on -- on page 140.
I -- I -- I thought you said that you did not contest that finding. Do you -- do you agree that the evidence shows that -- and I quote “That they had a specific motive and a specific intent” and that was as shown beyond any reasonable doubt to refuse to leave the library even after they had been served and after they had been requested three times.
Mr. Carl Rachlin: I would be prepared --
Chief Justice Earl Warren: No, I'm not asking what you'd be prepared for.
Do you --
Mr. Carl Rachlin: No, I mis -- I misunderstood it.
Chief Justice Earl Warren: -- does the record sustain that?
Mr. Carl Rachlin: No, the record does not sustain that completely.
Chief Justice Earl Warren: Well isn't that what we're bound by, the record?
Mr. Carl Rachlin: Yes, I would -- we are only bound -- this Court is only bound by the record.
Chief Justice Earl Warren: Yes.
Mr. Carl Rachlin: Now that is -- but I would say even if that were the fact as the judge so states --
Chief Justice Earl Warren: Well I think you have been over at that, the isn't what I asked you.
Justice Hugo L. Black: I'd like to ask you one question about that --
Mr. Carl Rachlin: Yes sir.
Justice Hugo L. Black: -- to see if I understand your position clearly.
As I understand you, you take the position, the library or the public place, people can go in and sit down, stay there, who want no service, who do not wish to read but who simply wish to sit there and that the state is constitutionally without power, you say they can't do that, that's what I understand to be your argument.
Mr. Carl Rachlin: No, I didn't say that.
I said there might -- for example the state had had a reasonable regulation well known to people in advance, they might be able to do that.
Justice Hugo L. Black: Now then you're -- then you're not going on that basis.
You're going on the basis that there was no regulation, no law which authorized the custodian to do what she did.
Mr. Carl Rachlin: That's the -- that's part of our argument, yes, sir.
Justice Hugo L. Black: Suppose there was a law which authorized you had to do what she did.
These people came in there not to get a book or came to get a book and found they couldn't get it and they decided they were just going to stay there.
What is your position as to what authority it was?
Mr. Carl Rachlin: I would say, if there was a regulation known and it said, people -- only people actually using library can remain beyond X minutes or whatever the time is, such a regulation would not be unreasonable providing with -- it was enforced in an equal manner because you -- yes.
Justice Hugo L. Black: That you are not arguing that a person can go into a public building, because it is a public building and defy the custodian of that building and stay there against the desire of the custodian which desires responsive to a trust which has been impost in the custodian by the -- by the government.
Mr. Carl Rachlin: Well providing that the government imposed a custo -- a custodial authority which in itself was not a violation of the Constitution.
That is -- if --
Justice Hugo L. Black: Do you say it would violate the Constitution for instance for the Congress as the law to the effect, people couldn't come in and sit down on the outside here in the lobby that is beyond here, stay there, when the custodian comes and tells them that unless they have presented through the motion to get out.
Do you see a law that could be beyond constitutional to that effect?
Mr. Carl Rachlin: No, I don't -- I don't say a law to that effect would be necessarily unconstitutional.
Justice Hugo L. Black: And it would -- it would be on imperative so far as the responsibility of the library and say, would it not?
Mr. Carl Rachlin: That is right, yes sir.
Subject to any comments, I might make to how the law was enforced in any given moment but the law itself, I do not -- reasonable regulation.
Justice Hugo L. Black: Well of course, if it was discriminatory.
Well that's a different thing.
Mr. Carl Rachlin: That's a different thing, yes, sir.
Chief Justice Earl Warren: Mr. Kilbourne.
Argument of Richard Kilbourne
Mr. Richard Kilbourne: Mr. Chief Justice and may it please the Court, Your Honors.
I would -- I would say at the outset, that had the petitioners in this case been refused all the services that they requested at the library at the time they went in and they've been just arbitrarily refused any recognition or any service and asked to leave, I can assure you that this case will not be here today.
In fact, there wouldn't have been a case.
If they hold the state, the State of Louisiana's entire case is based on the fact that the petitioners went in to the library and requested service.
They requested a book and it was later ascertained that the book by that specific title did not exist, but a similar book did exist which was -- was sent to them and its position of the state of course is that was all that they had asked for.
They had no further business there and when they just -- just sat there and looked, vacant stares into space, the librarian testified that she repeated statement that they didn't have the book and that she would try to get it -- get it for them.
And when she repeated -- repeated it the second time, and they did nothing.
They just sat there.
That is when she asked them to leave.
Chief Justice Earl Warren: Is there -- is there anything in the record to indicate that it is a common practice in that library for the librarian to -- the person asked for a book and the book is not there to ask them to leave immediately?
Mr. Richard Kilbourne: No, there is nothing at all in the record and that -- that is not in the record.
Chief Justice Earl Warren: That's what happened here, isn't it?
Mr. Richard Kilbourne: Well substantially, I believe that would be correct, Mr. Justice --
Chief Justice Earl Warren: Yes.
Mr. Richard Kilbourne: -- Mr. Chief Justice, I think it would be substantially correct that she said that she assumed when she took the order for the book that they would leave and when they did not, she asked them to leave.
Now, of course, this is --
Justice Hugo L. Black: MWhat kind of library?
I haven't fully understood from the statements up to date, what is that library?
Mr. Richard Kilbourne: Well at that time, it was a kind of arrangement by three parishes to -- to have this library, they voted a tax to maintain it.
They call it the Audubon Regional Library.
Justice Hugo L. Black: Was it a reading library?
Mr. Richard Kilbourne: No, sir, it was essentially, it's just to supply books and that is just about all it did to -- to serve the -- they did have branches of -- branches, small branch of library in St. Francis Building in West Louisiana Parish.
Justice William O. Douglas: Was there a table in it, chairs?
Mr. Richard Kilbourne: It was a -- I believe there was one table and two chairs, I believe in there.
I believe they said there were two chairs in it.
Justice Tom C. Clark: How large was it [Inaudible]
Mr. Richard Kilbourne: Well they sir, it must have been about, -- about 15 by 20.
It's rather a small room, it would be for a law office.
Justice Tom C. Clark: Just one room?
Mr. Richard Kilbourne: One room there, yes sir, where the -- where the -- in the -- the lady, Mrs. Reeves who was there, I mean that's what she did.
She sat there at her desk, and when people came in, she took their orders.
Justice Hugo L. Black: Is she the only one?
Mr. Richard Kilbourne: Excuse me.
Justice Hugo L. Black: Is she the only one there?
Mr. Richard Kilbourne: She was the only one there at that time.
The head librarian was in the back room.
There were several rooms to the building, all small rooms, I think maybe -- maybe four rooms all together that they get there --
Justice Hugo L. Black: Do they have any other rooms where they have places for people to read?
Mr. Richard Kilbourne: No sir, there was no other room, that was the only room where they took the orders for the books.
Chief Justice Earl Warren: But there were several rooms there that were used for the library.
Mr. Richard Kilbourne: Well they were used for the library, I mean, where they had the early employees working and where they had kept their records and the administrative (Voice Overlap)
Justice Potter Stewart: Well they had to keep the books somewhere.
It was a library.
Mr. Richard Kilbourne: Yes, they -- they had to keep the books on (Voice Overlap)
Justice Potter Stewart: Where were they kept?
Mr. Richard Kilbourne: They had books --
Justice Potter Stewart: In this main room or back in these other rooms.
Mr. Richard Kilbourne: They had books in the main room alright and they had them in the back rooms too and which would not open to anyone.
And the books that they didn't have well they order them and as they said, they even put them on one of the -- the order from the state library.
They -- they have many other kind of – they have a photograph records, tape recordings, all that is supplied at the public by mail.
Chief Justice Earl Warren: How many employees were there in the -- in these other rooms?
Mr. Richard Kilbourne: There were only two people in the whole establishment that day.
Mrs. Reeves, the lady there, she's on duty there.
It was on a Saturday morning.
They close at 12 o'clock and I believe this thing took place by 11:30 in the morning.
And then the other lady, Mrs. Perkins who was at that time, the head librarian was in one of the back rooms.
And that was the only -- those were the only two people in the building.
Chief Justice Earl Warren: Does the record show [Inaudible] aspects --
Mr. Richard Kilbourne: I believe the record -- I believe the record does show that that was a -- that was one of the programs instituted by the Congress of Racial Equality.
Chief Justice Earl Warren: Where do we -- where do we find that in the record?
Mr. Richard Kilbourne: Well, --
Justice Potter Stewart: At page 117.
Mr. Richard Kilbourne: It's not going to be --
Chief Justice Earl Warren: I asked the counsel.
Mr. Richard Kilbourne: Well, it's not going to [Attempt to Laughter] -- I -- I really don't believe it's going to be one specific page and one sentence.
Now one of the – was called as a witness by the State and I spent -- if I was of course prosecuting the case and I spent a great long time, many question -- great many questions trying to develop this and it was in the record.
I don't know if it's in this record but the piece from the next day paper where this witness had stated by Sunday morning that newspaper had stated that this was a program of the Congress of Racial Equality.
It was a demonstration planned by them and that was introduced in the record in the lower court.
Now this particular witness who would give the statement to the paper, she wasn't a friendly witness and I don't know -- I asked her so many questions, I lost -- lost count myself.
But that was -- but I believe that the record is --
Justice Potter Stewart: Which witness are you talking about?
Mr. Richard Kilbourne: Miriam Finegold.
Justice Potter Stewart: Thank you.
Mr. Richard Kilbourne: I believe –
Justice Tom C. Clark: I can get that in 117, the deputy [Inaudible]
Mr. Richard Kilbourne: Well yes, I believe the sheriff -- now what the sheriff testified to as the best of my recollection and I reviewed this several times, was that he had received a telephone call if there was going to be -- something was going to happen at the library.
And he didn't, if I remember right, he didn't -- he wasn't told what it was.
He wasn't told it -- it was going to attempt to integrate the library or anything of that kind.
He just told him something was going to happen.
But I may say so and I believe this is in the record too.
The sheriff testified -- I remember that he testified that on previous occasion when they have had the demonstrations of any kind by the Congress of Racial Equality that he was advised in advance because obviously there was always a possibility of something that might get out at hand and that was to enable him to take precautions to preserve the peace.
And I believe the -- the people themselves, members of the Congress of Racial Equality often called him and told him that they were going to have pickets on the street, something or whatever they're going to do and want police protection and I don't mind saying they called me too.
Well often not.
That wasn't so -- that is one of the reasons I -- I think if the record would demonstrate that it was or one of the --
Justice William O. Douglas: Well this -- does not make it -- to help make it an ingredient of an offense, doesn't it?
Mr. Richard Kilbourne: No, sir, except in this way, the question of whether it was a preconceived plan to conduct himself in such a manner as would forcibly disturb the peace and which is what I believe was charged in here.
Justice Abe Fortas: Mr. Kilbourne, as I read your brief and as I listen to you here, I -- a question occurs to me is the State of Louisiana telling us that in this parish library facilities are not segregated.
That is to say that a Negro can get service from any library facility, any public library facility in this Parish.
Mr. Richard Kilbourne: I would -- yes, I believe that they can.
Justice Abe Fortas: Is that the representation of the State of Louisiana?
Mr. Richard Kilbourne: Well that's a representation of the State of Louisiana which I make and which I certainly stand by it.
Of course they only have the (Voice Overlap)
Justice Abe Fortas: Now these cards -- this library of cards.
As I remember the record, there is a testimony to the effect that the library current issued to a Negro is stamped Negro.
Mr. Richard Kilbourne: That's in the record.
Justice Abe Fortas: Is there any dispute about that?
Mr. Richard Kilbourne: No sir, there's no dispute about that.
Justice Abe Fortas: Does that practice continue?
Mr. Richard Kilbourne: I really -- I just couldn't answer that --
Justice William O. Douglas: Well if there is a blue bookmobile for the Negroes and the red ones for the Whites, isn't it?
Mr. Richard Kilbourne: In other words, it works --
Justice William O. Douglas: How can you say it's not segregated?
Mr. Richard Kilbourne: Well it's in the -- well I say it's not segregated because if a White person wants to use that blue bookmobile, they would let him use it.
If a colored person want to use the red bookmobile, I know color is wrong there but I believe that's right, they would certainly wouldn't be able to refuse them service.
Justice Abe Fortas: Well the record says quite the contrary, doesn't it?
Is there any testimony in the record to support what you have just said?
Mr. Richard Kilbourne: I believe -- it is.
Justice Abe Fortas: (Voice Overlap) testimony of the record with the precise (Voice Overlap).
Mr. Richard Kilbourne: I believe it is.
Now you have to -- you see this certainly would come up actually before.
Justice Abe Fortas: You're experiencing now.
Mr. Richard Kilbourne: Sir?
Justice Abe Fortas: I say it's happening now and I want to ask you about the last statement that you made.
Is there anything in the record to the effect that a Negro who wants to get a book from the red bookmobile can't do something?
There is a testimony of some woman that used to work with the library I've forgotten her name, to the precise officer.
Mr. Richard Kilbourne: Well I -- I do not believe that that would be --
Justice William O. Douglas: I think that -- I think Justice Fortas is referring to the testimony of Mrs. Laura Spears on page 136, 137 of the record.
Mr. Richard Kilbourne: Yes.
I believe –
Justice William O. Douglas: To 138
Mr. Richard Kilbourne: I think she -- I believe she did testify that --
Justice William O. Douglas: Well she said, the only person who will use the blue bookmobile is Negroes and the blue bookmobile serves the three parishes for all Negroes and occasionally if a White person would come to the blue bookmobile, I've give him the schedule when the red bookmobile would come.
Mr. Richard Kilbourne: Well, that -- I believe that would be the only testimony that's in the record.
Justice William O. Douglas: That looks like a segregated library system.
Mr. Richard Kilbourne: Well I -- I often get confused when you -- when you segregated system or integrated system because in Louisiana -- I always feel like we had more integration in the place and then probably any place in the United States, I mean, just when the way people live.
I don't -- segregation and integration seems to mean different things and different policy on contrary.
Chief Justice Earl Warren: Prior to this -- prior to this incident, had Negroes ever gone into that library?
Mr. Richard Kilbourne: You mean to get a book?
Chief Justice Earl Warren: Because they have gone in there for --
Mr. Richard Kilbourne: They all went in there because --
Chief Justice Earl Warren: Gone in there for a service to the library as a White person went?
Mr. Richard Kilbourne: I don't believe I had, no sir.
Chief Justice Earl Warren: Now will you explain to us why that would be if you didn't have segregation?
Mr. Richard Kilbourne: No, I really can't -- I can't explain why that could be accepted.
As I see it was – there's no doubt it was a custom that they did not go in there at the library at that time.
Justice Tom C. Clark: People still run the bookmobile?
Mr. Richard Kilbourne: Yes it is.
The bookmobile still operates.
They close the -- they closed this facility, they closed ones in West Louisiana and St. Helena Parish principally for the reason that they couldn't get anyone to work there.
The -- the only people that work in these facilities or were working in them were women and they weren't paid much and --
Chief Justice Earl Warren: White women.
Mr. Richard Kilbourne: They were White women, yes sir.
Well they have colored women working in there too.
Not in the branches but in the -- in the Clinton -- to where Clinton is.
Chief Justice Earl Warren: But then these -- in these branches and White women wouldn't work.
Mr. Richard Kilbourne: Only one woman then, I think it is time they were White.
Chief Justice Earl Warren: And they couldn't get any White women to work in there if they allowed Negroes to -- to use the library, is that the fact?
Mr. Richard Kilbourne: That's not what I'm saying.
I'm saying they wouldn't work in that because they anticipated that it would be trouble and they didn't want to have any part of it and that was the reason.
They were just scared to work in there either.
Justice John M. Harlan: We're way outside the record.
Mr. Richard Kilbourne: Yes, I guess we are.
Justice Hugo L. Black: Is there any evidence in the record that this library ever been to serve colored person at anytime during its past history?
Mr. Richard Kilbourne: I didn't quite understand all your questions.
Justice Hugo L. Black: Was there any evidence in this record, did they offer any evidence or is there any evidence that there has ever been any person refused service in this library who has the books, any question, White or Black?
Mr. Richard Kilbourne: No sir.
Chief Justice Earl Warren: Is there any record about the availability of this service other than this testimony that -- that Justice Douglas read it on the page 136 and 137, Mrs. Spears that you had this double system, one for Negroes and one for -- one for Whites.
Mr. Richard Kilbourne: Well I don't think there's any -- any other testimony to that effect.
It was I think -- if I remember the record will show you the number of questions along those lines that was objected to and the objection was sustained.
I objected to them because --
Chief Justice Earl Warren: Who objected?
Mr. Richard Kilbourne: I did.
Chief Justice Earl Warren: You did.
Mr. Richard Kilbourne: Yes sir because I didn't feel like -- I didn't feel like I was trying to raise a case or anything to that kind.
I thought it was irrelevant because actually all -- we -- my theory of the case was that anybody that went into the library conducted themselves in the manner that the petitioners did in this case would be violating the statute.
Well Ku Klux Klan when they've come in and say I'm a man conducted themselves that way, I believe you would have the same kind of case.
Chief Justice Earl Warren: Well Mr. Kilbourne, I -- I -- I thought that it was tried on the basis of being a racial case because the -- the sheriff testified the reason he put them under arrest was that these people had come there for a different purpose.
And that was to establish racial equality in your -- and your court in this finding on 140 -- page 140 says clearly the evidence shows that these parties did not congregate when they came to the town of Clinton, to the Audubon Parish Library merely for the purpose of seeking service and that they had a specific motive and a specific intent, and that was as were shown beyond any reasonable doubt to refuse to leave the library even after they had -- had been served and after they'd been requested to leave.
Now doesn't that -- doesn't that make the case turn on a racial question?
Mr. Richard Kilbourne: Not in my judgment, Your Honor.
I believe anybody who'd acted that way would -- would receive the same thing.
That's why I -- I maintain that the question of the color of the petitioners was irrelevant and the question of segregation and integration not only -- only testimony that I remember about the question of the integration came up and it shares the testimony when he said that one of the petitioners had told them that they came over there to integrate the library and that was what he said one of them told him.
And that -- wasn't all that took place on his questioning of the petitioners after -- after the arrest I believe is an abuse of them. I think one of them told them he couldn't read and so that's why I really didn't --
Justice Abe Fortas: Now what about this testimony of your witness that you call, Miriam Fienberg – Finegold.
You called her on page 69 of the record, unless I missed something in here she is still on the stand on page 86 and 87 and you're asking a lot of questions about the court.
You asked her on page 87, you know if some colored person who's been accused service at the library.
The answer, I know five such persons and then it says that if she means defendants and so on.
And that make it appear to me that you have some awareness, Mr. Kilbourne that the trial with racial issues is not far.
Mr. Richard Kilbourne: Well I -- I certainly had the -- actually, I certainly knew what the situation was if you permit me to say so as far as the racial situation was but in trying the case, I maintain that the race of the petitioners had nothing to with because I had the -- anyone who had conducted themselves in a similar manner [Inaudible] five strange men or four of them go in in and lady there them in the library by set and walk in and -- and just sit down and refused to leave.
Well of course, she was afraid and anyone would be and my theory was and it still is, if anyone who conducted themselves in that manner would certainly be conducting in a manner that would conceivably provoke a disturbance of the peace and at all times, I was trying to prove if they -- it would be absolutely there with the intent to which I charge to provoke a disturbance of the peace.
Now I did want to mention about the -- what I said about the --
Justice Hugo L. Black: Suppose that -- suppose they had declined service then what would your position be?
Mr. Richard Kilbourne: As I said in the opening --
Justice Hugo L. Black: On account of the fact that you raise?
Mr. Richard Kilbourne: As I said in my opening statement, the case would not be here today, there would not had been a case.
Now that's exactly what the situation would have been.
Now the talk -- the order -- there was some discussions here affecting about the Constitution.
This man mentioned the Constitution.
Now there's some confusion about just what he meant.
You see only one of them the -- Brown was the only who spoke to us and the others and the other petitioners don't said anything at all.
And when they asked him to leave, the librarian asked them to leave, he said what about the Constitution.
Now just what he meant, he never knew because none of them -- none of the petitioners ever testified but my theory was that he was trying to convey to her the -- the -- his idea that the Constitution gave him a right to -- to conduct himself in a manner that he was doing and she -- and her answer was, we have -- we have it here.
Now that was his [Inaudible]
Justice John M. Harlan: How big a town is Clinton?
Mr. Richard Kilbourne: About 1500 people.
Justice John M. Harlan: Does the record show how old Mrs. Reeves was?
Mr. Richard Kilbourne: Sir?
Justice John M. Harlan: Does the record show the age of Mrs. Reeves?
Mr. Richard Kilbourne: I believe it does.
She's a middle aged lady.
Justice John M. Harlan: Where did these defendants come from?
Mr. Richard Kilbourne: One of them -- one of them lived in Clinton and the others – they were all strangers.
They came from West Louisiana of Parish.
I might say they all -- all of them were young men, young fellows and they were all around 18 to 19 years old except Mr. Brown and he was I think around 29.
He was the leader in this group and I think --
Chief Justice Earl Warren: But these people -- these people and the -- in one of the three parishes that this --
Mr. Richard Kilbourne: Yes sir.
Chief Justice Earl Warren: -- this library served.
Mr. Richard Kilbourne: That's right.
The West -- all of them in West Louisiana which was in the library service.
Chief Justice Earl Warren: Yes.
Mr. Richard Kilbourne: Thank you.
Chief Justice Earl Warren: Thank you, Mr. Kilbourne.