UNITED STATES v. JOHNSON
Legal provision: Civil Rights Act of 1964, Title II
Argument of Mr. Chief Justice Warren
Mr. Chief Justice Warren: Number 482, United States, Appellant, versus Horace Johnson et al.
Argument of Ralph S. Spritzer
Mr. Ralph S. Spritzer: Mr. Chief Justice, Your Honors.
This case comes here by direct appeal under the Criminal Appeals Act seeking reinstatement of an indictment which was brought under Section 241 of the criminal code.
That Section which as Your Honors know was inspired originally by the activities of the Ku Klux Klan and it dates back to 1870, punishes any conspiracy to injure, intimidate or oppress a citizen because of his exercise of any right or privilege secured to him by the constitution or by the laws of the United States.
The indictment here charged that the four appellees had conspired to injure and intimidate three Negro citizens because the latter had exercised their rights guaranteed by the public accommodations title of the Civil Rights Act of 1964 to patronize a roadside restaurant.
The District Court for the Northern District of Georgia concluded that the provisions for injunctive relief which appear in that 1964 Act constitute the exclusive means of dealing with a violation of the public accommodations law, and that those provisions preclude a federal criminal prosecution.
It accordingly dismissed the indictment.
Since this case has not gone to trial, the facts have not been fully developed.
I think it suffices to say that the basis of the prosecution is that the appellees, persons wholly unconnected with the restaurant or truck stop where this incident occurred severely attacked and beat the Negro travelers in question.
After those travelers had sought and obtained service and were returning from the restaurant to their parked automobile.
Justice William J. Brennan: Mr. Spritzer, would the bill that just passed the Senate, without question, cover this?
Mr. Ralph S. Spritzer: Yes.
It would cover much more of course --
Justice William J. Brennan: Yes but it would reach --
Mr. Ralph S. Spritzer: -- but it would cover an injury by a single person as well as a conspiracy and many other types of interference of course.
Justice William J. Brennan: But there's no question it does reach this instance?
Mr. Ralph S. Spritzer: None whatever, no question, whatever.
The indictment alleges that the plan and purpose of the conspiracy of the appellees were to dissuade these travelers and other Negroes from seeking service at the establishment on the same basis as white citizens.
The District Court recognized as indeed this Court's decisions require that Section 241 protects all federal rights derived directly from the constitution or created by Acts of Congress.
And that the instant prosecution has a clear statutory basis, unless the public accommodations law itself manifests an unmistakable purpose to exclude the rights created by that law from the protection of the criminal law.
The District Court concluded that the public accommodations law does gives in to that purpose.
Although we recognize full well that the matter of accommodating the statutes is one not free from difficulty.
We urge that Section 241 has not been excluded from its historic role in the circumstances of this case for reasons which I shall develop in analyzing the public accommodations law.
The principle circumstance which I have in mind is that this case does not involve a charge that a proprietor denied service which he was under a duty to accord, but rather a charge that a group of outsiders committed a punitive assault upon persons who had asserted their federal right to seek and obtain such service.
Now Title 2 of the Public Accommodations Act, Section 201 begins with the declaration that all persons shall be entitled to the full and equal enjoyment of places defined in the Act as places of public accommodation without discrimination or segregation.
There's no question as this case comes here that the facilities involved constituted a covered establishment.
It is also settled of course, notably by this Court's Atlanta Motel decision that Title 2 is a valid implementation of the commerce power.
As I mentioned earlier, the only real question is whether the public accommodations law itself shows a design to confine federal proceedings involving an assault upon the right to public accommodations to actions for injunctive relief.
And that of course requires a further examination of the act scheme.
Section 203 goes on to provide that no person shall withhold the privileges or interfere with the rights declared by Section 201.
Section 204 then provides for preventive relief as against any person who engages in conduct prohibited by Section 203.
A civil action may be instituted by the party aggrieved and the court may permit intervention by the Attorney General upon his certification that the matter is of general public importance.
I note parenthetically that another Section of the Act, Section 206 permits the Attorney General to institute a suit in his own right a prevent -- an injunctive suit in his own right.
If he has reasonable cause to believe that the denial of statutory rights is part of a pattern or practice.
Returning to Section 204, it carries the qualification that the action for injunctive relief may not be instituted without prior notice to state or local authority in the event that there is a state or a local law prohibiting the same type of discriminatory conduct.
30 days after the giving of such notice however, the federal proceeding may be filed.
Section 204 also authorizes the District Court even where there is no overlapping state or local law to differ the injunctive suit for not more than 60 days in order to utilize the offices of the community relations service which was created also by the 1964 Act.
Against that background, I'd like to refer Your Honors to Section 207.
That Section after conferring jurisdiction upon the United States District Courts to consider actions for injunctive relief, contains the critical language appearing in paragraph B which is set forth at page 2 at the Government's brief and begins with the words, “The remedies provided in this Title shall be the exclusive means of enforcing the rights based on this Title”, and then goes on with other language with which I shall also deal in a few moments.
Turning initially to that first exclusive remedy language, I would like to suggest that the word remedies ordinarily connotes civil relief.
Similarly, it seems to us that the concept of enforcement of rights connotes a suit by the person aggrieved directed against those person who have the correlative duty, here, the duty to provide the facilities or to render the service.
Thus, we have no hesitancy in arguing, we think numerous cases support the general proposition.
That as a general rule, a provision describing a civil remedy here, the remedy of injunction as exclusive, need not be construed to preclude the application of the relevant criminal law.
Justice Byron R. White: Doesn't the the Act also present the appearance to the --
Mr. Ralph S. Spritzer: It authorizes injunctions against any person who violates the Act or interferes.
Justice Byron R. White: So people besides those who own the establishments have a duty not to interfere with this race?
Mr. Ralph S. Spritzer: Yes, a duty which may --
Justice Byron R. White: Created by the (Voice Overlap) --
Mr. Ralph S. Spritzer: -- be dealt with --
Justice Byron R. White: Created by this Act?
Mr. Ralph S. Spritzer: -- by a civil remedy, yes.
Justice Byron R. White: Created by this Act?
Mr. Ralph S. Spritzer: Yes, that is right.
The injunctive remedy is not restricted to proprietors but is available as against to any person who --
Justice Byron R. White: So these --
Mr. Ralph S. Spritzer: -- violates the rights or duties conferred.
Justice Byron R. White: -- these people were owed a duty by the people who attacked them not to attack them under such --
Mr. Ralph S. Spritzer: Oh, yes, yes, I don't question that for a moment and I would add that the facts of this case rather sharply illustrate however in our view the reason for the rule of construction which says that ordinarily a provision for the exclusivity of a civil remedy does not preclude a criminal proceeding in vindication of the public interest that may be involved.
And I say that because an injunctive proceeding may well be effective against a proprietor to ensure future service.
It may have some utility in injunctive proceeding if there is a continuing course of interference to bring that interference to a halt.
In the case of episodic attacks by different persons or different groups of persons upon those who seek service or have sought service, an injunction is in utterly inefficacious method because it can hardly deter groups who are engaged in these episodic attacks, if those same groups are not continually engaging in that course of conduct.
Justice Byron R. White: (Inaudible) the question against them?
Mr. Ralph S. Spritzer: Yes, the court found no occasion to reach it because --
Justice Byron R. White: And the decision (Inaudible)?
Mr. Ralph S. Spritzer: No, it isn't reached and guessed because the court agreed with the district -- that the District Court there had construed the indictment as defective and the statutory issue of coverage on that aspect of the case was never reached.
Justice Potter Stewart: Because of the doctrine of, what was it, Borden?
Mr. Ralph S. Spritzer: Yes, you said the appeal on that aspect of the case did not properly --
Justice Potter Stewart: So if --
Mr. Ralph S. Spritzer: -- (Inaudible) of this Court.
Justice Potter Stewart: -- the question was expressly reserved --
Mr. Ralph S. Spritzer: Expressly left open in Your Honors' opinion for the court.
Justice Potter Stewart: Right.
Justice Byron R. White: It was the only right that was exerted in the (Inaudible) conspired against the rights of the (Inaudible) --
Mr. Ralph S. Spritzer: The right is the right to the equal enjoyment to the free exercise of the right to enjoyment of public accommodations and that alone.
Justice Byron R. White: Question isn't opened here as to whether the right that was involved was a constitutional right?
Mr. Ralph S. Spritzer: The indictment which is at page 2 of the record is predicated directly upon Title 2 as Your Honor --
Justice Byron R. White: I see.
Mr. Ralph S. Spritzer: -- will see about two-thirds all the way down, Title 2 of --
Justice Byron R. White: Thank you.
Mr. Ralph S. Spritzer: -- the public accommodations law.
Now if the general proposition I have stated is sound, namely that the provision of an exclusive civil remedy does not necessarily preclude the application of criminal law, it brings me perhaps part of the distance but not the full way.
First I think I have to face the matter of the remaining language in Section 207 (b), which also requires interpretation.
And secondly, it becomes necessary I think to consider the legislative history of Title 2 which I shall concede, places some loss upon Section 207 and does require the conclusion that at least in some circumstances, namely where the criminal proceeding is -- might be brought against the proprietor, that Congress meant to rely exclusively upon injunctive remedy.
Let me first address myself to the language of Section --
Justice John M. Harlan: May I ask you about the -- just what you said?
If the proprietor sought (Inaudible) considered and prosecuted by a jury under state law?
Mr. Ralph S. Spritzer: I was only referring to the availability of a federal criminal prosecution.
Justice John M. Harlan: About the federal --
Mr. Ralph S. Spritzer: And that brings me directly to the latter half of Section 207 (b) which contains the proviso after saying that the remedies provided by this Act shall be exclusive.
But nothing in this Title shall preclude any individual or any state or local agency from asserting rights based on federal or state law not inconsistent with this Title.
And then you will note goes on to save the pursuit of any remedy, civil or criminal which may be available for the vindication or enforcement of such right.
Now appellees point out that this explicitly preserves the availability of a state criminal proceeding and argue that the inference to be drawn from the writing of this limited exception is that Congress did not intend to preserve the availability of a federal criminal prosecution.
Seems plain to us however that there is another reason for the writing of this exception and the form in which it is written.
Namely that in the absence of an explicit provision preserving such state remedies as might exist in such state criminal laws as might appertain.
It might well be concluded that federal law had preempted the field.
Now that interpretation is not idle speculation.
The relevant report of the House of Judiciary Committee, and that's House Report 915 of the 88th Congress to which we cite in our brief states after summarizing the language of the exclusive remedy provision, and I'll quote it exactly, “Thus state anti-discrimination laws not inconsistent with Title 2 would not be preempted.”
Justice Byron R. White: And that would go for a suit that would go for remedies against the owner?
Mr. Ralph S. Spritzer: That's true.
Justice Byron R. White: Yes.
Mr. Ralph S. Spritzer: I'd like to turn now to the more serious question of Congress' understanding here.
In the course of the legislative debate, a number of Senators and Your Honors may recall that the 1964 Act did not go through a committee in the Senate that was brought directly onto the Senate calendar.
A number of Senators expressed the view during the debate that the Act was a moderate one.
They said it was moderate because it provided for efforts at conciliation in the first instance.
Moderate because it preserved procedures afforded by state law where state law provided such procedures.
And moderate finally because it authorized federal injunctive actions rather than federal suits for damages or federal criminal prosecutions.
These Senators, most of them advocates of the legislation, gave assurance that proprietors of restaurants and of other places of public accommodation would not be prosecuted or subjected to damage suits as a result of the proposed enactment of this Title.
Justice Potter Stewart: The -- for simply discriminating, I suppose you would -- I don't know what the -- I don't know if this was made explicit in the legislative history, but I suppose you would not concede that a proprietor couldn't be criminally prosecuted under this very statute we have here if he --
Mr. Ralph S. Spritzer: If he joined with outsiders --
Justice Potter Stewart: Joined (Voice Overlap) --
Mr. Ralph S. Spritzer: -- so he'd have a conspiracy.
Justice Potter Stewart: Yes.
Mr. Ralph S. Spritzer: I would say that he lost any field also.
And you're quite right, the legislative history in referring to the -- in giving this assurance that proprietors would not be prosecuted did not refer to assaults, they refer to denials of service.
In addition the solicitude I emphasize was expressed solely on behalf of proprietors.
Thus Senator Humphrey who I think spoke more fully to this matter than any of the other sponsors of the legislation, explained that a proprietor who failed to give service.Perhaps he said because of heavy community pressures.
Perhaps because he might have a bona fide doubt as to whether his place of business was a covered establishment under the Act.
Such a proprietor, said Senator Humphrey, would not be prosecuted by the Attorney General and he noted the Attorney General's agreement on this point.
I repeat however, at no point was it suggested by anyone that if the clan or some gang of outsiders were to engage in a punitive assault upon those who have sought or had obtained service that such person would gain immunity or persons would gain immunity and that the historic office of Section 241 would in such circumstances go unfilled.
I shan't labor further here the details of this history which we have cited in our brief but would like to proceed for the moment upon the assumption that the court upon its independent examination of that history will agree with what I have described as the sense of Congress.
Now on this assumption, I'd like to go back for a moment and deal with the question how we think this statute is to be read.
And I would like to attempt to restate if I may our textual analysis in summary form.
Our first proposition is that the language of Section 207 (b) does not operate of its own force to exclude the possibility in all circumstances of a federal criminal proceeding.
Secondly, we concede that Congress did not contemplate that proprietors would be prosecuted under federal law for a mere denial of services.
And I'd say that one can readily accommodate tis congressional intention within the language of Section 207 (b).
One can properly say, I think in other words, that Congress apparently regarded a prosecution of a proprietor for a mere denial of service as coming within the concept of a remedy for enforcing the rights created by Title 2 and that it elected to foreclose that remedy in favor of injunctive action.
Our third and final proposition is that this does not require, does not require a similar holding in the case of a conspiracy by outsiders which is what is involved here to engage in a punitive assault upon those who have exercised or have thought to exercise their rights under Title 2.
I've observed that we think there's no persuasive evidence to suggest that Congress meant to preclude such prosecution, and as a matter of textual construction we believe that the court may properly hold that a prosecution of persons who engage in such a punitive expedition is not a remedy or means of enforcing Title 2 rights.
Justice Potter Stewart: You'd rest yourself yet Mr. Spritzer to the language beginning with, but after the comma?
Mr. Ralph S. Spritzer: Yes, I -- my comment on that Your Honor was that the House Committee report explained that its purpose was to make clear that state law was not preempted.
Getting back to our construction of 207 (b), we urge that a right to the enjoyment of public accommodations and enforcement of that right runs against those who have the correlative duty to provide the facilities or service.
And that a prosecution of those who have engaged in a punitive assault because other persons have exercised their rights is not a proceeding to enforce the right to service as such.
Rather, it is a prosecution to deal with the kind of conspiratorial injury which is embraced by Section 241.
In other words, we distinguish between proceedings to enforce the substantive right to the enjoinment of equal accommodations and proceedings to vindicate the public interest in deterring concerted assaults upon those who have exercised their civil rights, because we think that distinction is an important one and that it is in -- it is consistent with the text and certainly in keeping with the essential statutory purposes.
We urge that this indictment states in offense under Section 241 and that it should be permitted to go to trial.
Justice John M. Harlan: I take it that you don't draw any distinction, didn't you -- your arguments being so close sporadically conspiracies about this.
(Inaudible) by the established groups --
Mr. Ralph S. Spritzer: I would think whether sporadic or continuing, they would be the attackers or assaulters would be subject to Section 241.
The reference to a sporadic attack which I made before was by way of emphasizing the ineffectiveness, the inadequacy in that circumstance of a purely injunctive remedy.
Thank Your Honor.
Rebuttal of Mr. Chief Justice Warren
Mr. Chief Justice Warren: Mr. Thompson.
Argument of Robert B. Thompson
Mr. Robert B. Thompson: Mr. Chief Justice, members of the Court, if it please the Court.
We have presented in our brief substantially all that we can say in support of the dismissal of the indictment here and we think we've covered it rather fairly.
We shall not attempt here to do more than emphasize the points we think most pertinent.
First of all, we emphasize an argument we have made in our brief, unless the statute here in question, that is Section 207 (b) means exactly what it says and exactly what we have contended -- do contend that it says then it has no meaning at all, and we would have to attribute to Congress the enactment of the statute having no meaning which I think this Court would not do.
So we have to look for some meaning in the statute.
We submit that the United States has given us none, except to say that under the terms of that statute sometimes a person can be prosecuted and sometimes a person can not be prosecuted.
We submit that either it excludes all prosecutions or it excludes none we refer to the Act.
First of all and I don't really significance it is, I've turned over in my mind, perhaps the court can find some significance to it.
We find that the Act relates to all persons whereas such in 18 U.S.C. 241 relates only to citizens of the United States.
But the first section of the Act creates the rights that we have under discussion here.
Mr. Justice White inquired as to whether or not we have some constitutional claim of these rights.
It has not been made in the brief and under the indictment, the rights that are claimed to have been violated or infringed are those created by the Act.
In the second place, the statute as we quote on page 2, I believe it is of our brief provides certain prohibitions.
These prohibitions include what the United States here were would divide, but it includes first of all the denial of any -- of these accommodations to any person.
And secondly it provides that there shall be no intimidation or coercion with -- or threats with respect to those who utilize these rights, avail themselves of them.
And third, it provides that no one shall attempt to punish one for having availed himself of these rights.
This is one single provision of the statute.
There is no indication here that a proprietor and outsider shall be separated in any way.
This is followed by the civil sanctions which have been discussed at some length by the United States and with which this Court is familiar from its discussion -- of the -- in the Heart of Atlanta Motel decision.
We do not contend that the Heart of Atlanta Motel decision is determinative of this case, but we do point out to the court that on a reading of the statute and on a undoubted deep study of the statute, the court there reached the conclusion that the civil remedies are the only remedies available and that criminal prosecution cannot be pursued.
The statute 207 which the Section which we specifically have in mind and which is really the (Inaudible) of this litigation, provides it and I would with the permission of the court read the statute and its entirety without breaking it up by interrupting.
The remedies provided in this title shall be the exclusive means of enforcing the rights based on this title, but nothing in this title shall preclude any individual or any state or local agency from asserting any right based on any other federal or state law not inconsistent with this title, including any statute or ordinance requiring nondiscrimination of public establishments -- in public establishments or accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such rights.
As we have argued in our brief, this Section says twice that the United States may not prosecute a violator under Section 241 or under Section 242.
First it says, “The remedy shall be exclusive.”
The United States has argued the term remedies must refer to civil remedies.
However, in the same statute we have the word used the second time where it expressly states from pursuing any other remedy, civil or criminal.
I don't think we can attribute in a proper construction or a proper reading of this statute, the use of the word to have two different meanings without any further explanation in that.
Certainly we'd be asking for a lot to be implied.
So in the first instance, the statute provides that the remedy shall be exclusive.
That is the civil remedy.
In the second instance, referring to any individual in a state or any local agency but it's notably excluding the United States.
It says that any other remedy whether state or federal may be pursued and whether criminal or civil.
We submit that these points out determinatively that Congress intended exactly what we have contended here.
As a matter of fact without dissecting the Section, without emasculating it, we submit that there is no other fair construction that the statute can be given just attributing to it the words that are found therein and placing it in the context of the Act.
Now with reference to the argument and we will discuss very briefly the legislative history which has been very well covered by Mr. Spritzer, but with reference to the entire law in which this Section was enacted, we find first of all an attempt to -- in the argument here at least, to state that this Section was meant merely to exclude prosecution in the case of a good faith proprietor who denied service.
First of all, we would answer that by saying that Section 241 could not be utilized for that purpose any way.
A proprietor who only is own (Inaudible) and without conspiring with someone else and without being two or more persons could not be prosecuted for denying rights.
We know of no other federal statute under which he could be prosecuted.
So we submit that the argument of the Government there fails.
Secondly the argument is made that this is to eliminate the prosecution again of a good faith proprietor who wants to test the law.
This could not be the meaning of the statute, because we have already learned from this Court in -- first of all Spruce v. United States some 25 years ago, and more recently in Guest v. United States that his specific intent to violate the law is intended any way.
The only reasonable construction that could be given the statute giving the words the clear meaning which they have would be that contended for here, and that found to be the construction given it by the District Court below.
With reference to the legislative history, it is true and the Government points rather heavily to the example that Senator Humphrey used.
Senator -- then Senator Humphrey stated that the -- this provision was placed in the statute in part because people would think that otherwise contend rather that Sections 18 245 -- 241 and 242 could be utilized to prosecute one who had violated the terms of the Act.
Justice Byron R. White: Well that absent the exclusivity provision, there wouldn't be really any question about that, would there?
Mr. Robert B. Thompson: That is correct sir.
We do not -- we would not contend to the contrary.
Justice Byron R. White: And so the question is whether Congress by putting in the exclusivity provision ex -- intended to preclude what otherwise would be a right to resort to 241?
Mr. Robert B. Thompson: That is our interpretation, our understanding and our contention here if it please the Court.
Now Senator Humphrey stated that the provisions and referring specifically to the criminal statutes that we have referred to --
Justice Byron R. White: And by the way, absent the provision for an injunction on this Act, would there be any other way of enforcing the right created by the Act?
Mr. Robert B. Thompson: None other that what --
Justice Byron R. White: There's no other civil remedy that a party would have except the one that is provided by this Act.
Mr. Robert B. Thompson: There is none -- no other that I could refer the court to.
I know of no other sir, except --
Justice Byron R. White: Except for the state law maybe?
Mr. Robert B. Thompson: Perhaps under state law.
We have pointed out in our brief that Senator Humphrey and he stated in to the congressional record that he had the aid of the Justice Department in making his summary of the statute, his interpretation and application of the statute here, did not -- what he affirmatively did not state that these Sections would not be available to prosecute conspirators under this Act.
He did affirmatively state that this position was placed in the Act to prevent any misapprehension that they might be prosecuted under it and then gave an example.
The example related to a good faith proprietor whom we have shown I think by our argument could not have been prosecuted anyway.
But there was a time and a place in this statement of Senator Humphrey in the record there that if there were any other meaning to be given the statute then that which it reads on its face it could have been given at that time.
We've also pointed out in our brief that the only other reference we have been referred to concerning 18 U.S.C. 241 and 242 is found in the testimony of the Attorney General, the then Attorney General before a congressional committee in which inquiry was made as to whether or not the violations of the Public Accommodations Act as been drawn might be prosecutable under the criminal statutes.
The Attorney General's opinion at that time was that they were prosecutable under the statutes.
Thereafter, Section 207 was added to that.
We think this rather persuasive as to the congressional intent.
We have also pointed out as did the district judge in his opinion that an amendment to the Act was offered to eliminate this Section and substitute in lieu thereof a provision for criminal punishment.
It would have been misdemeanor punishment granted, but this was soundly defeated.
The argument there made was that we should not have enforcement by injunction that we should just go and have criminal sanctions and not the civil sanctions.
We submit that the Civil Rights Act and the Public Accommodations Act arose from, as stated by the Government in its brief, considerable debate, considerable contents and considerable opposition that the Act was perhaps not as strong as the advocates of it would want it to be.
Perhaps some of them would have wanted the sanc -- criminal sanctions that are sought here to be imposed.
This Act ultimately was a compromise as we understand the congressional record and as we recall the history of the Act, and perhaps this explains why no more severe sanctions are imposed under the Act than we find any.
As we have stated, a reading of the Act does not permit the construction that's offered by the Government here.
We submit that either all violations to the Act are prosecutable under 241 and 242 are none or that there is nothing in the Act to indicate any intention to the contrary.
We would have nothing further to offer in the way of argument other than what we have in our brief if the -- any members of the Court have any question that we could answer, we're going to take -- answering them.
Rebuttal of Mr. Chief Justice Warren
Mr. Chief Justice Warren: Mr. Thompson, you are good enough at the request to this Court to represent one of these defendants or one of these respondents who was not represented by counsel and I want you to know that we appreciate that.
That we consider it a real public service for lawyers to do that and that it aids us greatly in the administration of justice.
Rebuttal of Robert B. Thompson
Mr. Robert B. Thompson: Thank you.
Rebuttal of Mr. Chief Justice Warren
Mr. Chief Justice Warren: Thank you very much.
Thank you Mr. Spritzer for the representation of the Government, but could you have a -- you have a moment or two if you wish to say anything.
Rebuttal of Ralph S. Spritzer
Mr. Ralph S. Spritzer: I had -- don't wish to attempt to go over any of the same ground.
I did wonder for -- very briefly to two points which were suggested by counsel.
One was the suggestion that under our view of the exclusive remedy provision, no function would be really served by that provision.
Mr. Thompson suggested that in no event could the Government have prosecuted a proprietor for the denial of service.
And now it's true that Section 241 requires the participation of more than one person, because it is a conspiracy statute, but Section 241 does not require that the conduct be violent or that it be an assault.
A passive denial of rights guaranteed by the constitution or laws of the United States if participated in by two or more persons would subject that person to a prosecution under that Section.
So that consequently in the absence of some provision by Congress immunizing a proprietor, a proprietorship which consisted of a partnership could be prosecuted for denying service.
I would suppose a proprietor and the waitress could be prosecuted if they denied service to a costumer.
Now we agree that Congress didn't want that and that the language of Section 207 (b) may properly be read to exclude it.
What we're arguing is that that language does not have to be read to exclude every kind of conspiracy or attack upon the exercise of federal rights which might be covered by Section 241.
One final word as to the point that Congress rejected, a proposal for an explicit criminal sanction in this Act, the proposal for a criminal sanction was made by Senator Thurman and various other opponents of the legislation.
They proposed to write out all of the injunctive provisions of the Act and to substitute a misdemeanor provision.
This was objected to by the sponsors of the legislation on the ground that it would make the Act ineffective.
Congress feared that the juries would be quite reluctant to convict in cases of this kind in some communities, and Congress felt it important to have an injunctive remedy available.
So that the only criminal provision which was explicitly proposed was proposed only by opponents of the legislation who were criticized by the sponsors of the legislation on the ground that they were seeking to make the Act inefficacious.
Rebuttal of Mr. Chief Justice Warren
Mr. Chief Justice Warren: We'll adjourn.