CAMERON v. JOHNSON

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Argument of Arthur Kinoy

Chief Justice Earl Warren: John Earl Cameron et al., appellant, versus Paul Johnson and so forth et al.

Mr. Kinoy, you may continue your argument.

Mr. Arthur Kinoy: Mr. Chief Justice, yesterday afternoon, we were discussing the constitutional implications of the opened concession of Mississippi that the statute here under consideration has been selectively enforced in the area of free expression.

Here, Mississippi has openly acknowledged that if a parade which completely obstructs a street has general community approval, the statute will not be enforced.

But if it has a different purpose, perhaps one in sharp opposition to what this Court has called in Button, the opinions of the politically dominant White community, the statute will be enforced.

Justice Hugo L. Black: Where is that concession?

Mr. Arthur Kinoy: That concession is directly in the record, Mr. Justice Black at page -- it's set forth in full on page 74 in our brief.

The excerpts from the transcript are on page 74 of our brief.

Justice Hugo L. Black: Showing the concession?

Mr. Arthur Kinoy: Yes, open complete concession.

Now, what Mississippi attempts to do here is precisely what Louisiana attempted to do before this Court in Cox and that is the effort to say that a parade is not a mass demonstration but as this Court there pointed out, a parade as the dictionary itself had -- a mass demonstration as the dictionary itself points out is a public manifestation of feeling.

Now, if this public manifestation of feeling expresses safe, dominant community views, then it's permissible.

If it expresses unpopular views such as opposition to the dominant majorities, disenfranchisement of Negroes, then it is semantically a mass demonstration prohibited by the statute, but this is precisely what this Court time and time again has said that the Constitution prohibits.

And as we pointed out yesterday, there has been striking unanimity in this Court on the vice of discriminatory enforcement because as Mr. Justice Black said in his concurring opinion in Cox that discriminatory enforcement represents censorship in its most odious form unconstitutional under the First and Fourteenth Amendment.

Justice Hugo L. Black: Now, Mr. Kinoy, is it also that they could not get the cases tried fairly in the courts of Mississippi?

Mr. Arthur Kinoy: Did they concede that?

Justice Hugo L. Black: Yeah.

Mr. Arthur Kinoy: No, they did not concede that, sir.

They conceded that the statute was selectively enforced, completely selectively enforced and the -- yes, Mr. Justice.

Justice Abe Fortas: Was there any statement comparable to the statement on page 74 of your brief with respect to the blocking of access to courthouses?

It's the first part of the statute here under which these people are prosecuted relates to blocking courthouses and public buildings.

The second part of it relates to free use of the streets.

The -- what you have referred to as a concession as it appears on page 74 as I read it relates only to blocking the streets.

Now, is there anything like that with respect to blocking access to public buildings or courthouses?

Mr. Arthur Kinoy: Yes, Your Honor.

On page 236 of the transcript on the examination of Mr. Dukes and solicitor in respect to the homecoming parade for Mississippi Southern, the question was asked, “Did the parade pass in front of the courthouse?”

It did.

The question, “was it during daylight hours?”

Answer, “During the daylight hours.”

Question, “When the courthouse was normally open for business?”

A, “normally open for business.”

Question, “Did it keep people from being able to cross the street from the Sears Roebuck to the courthouse?

Answer, “It did,” so that there is equal concession, Mr. Justice Fortas, in respect to blocking the courthouse.

Now, I suggest to the Court that the only possible conclusion from these open record concessions is that concededly Mississippi is not engaging in the evenhanded enforcement of the statute which the utterly majority of this Court required as a constitutional minimal protection.

And that if federal judicial protection is not available where admittedly there is no evenhanded enforcement of a state statute, then I suggest to the Court the somber warning of the dissent in utterly must be carefully reconsidered.

This is one of the most classic examples which a transcript has ever brought before this Court of planned prosecutorial misuse of a statute regulating freedom of expression.

This is one of the two types of challenges to a state criminal statute which Mr. Justice White pointed out in his dissenting opinion in the original Cameron case warrants extraordinary federal intervention in a state criminal proceeding.

Now, I would suggest to the Court that this pattern of selective enforcement raises a second consideration which emerged sharply at the remand hearing which likewise invokes the criteria of Dombrowski.

Now, this Court has taught us in a numerable opinion that the danger of selective enforcement often flows from statutes overly broad or vague in the area of the First Amendment such a statute is now clearly before this Court.

At the remand hearing, the appellees introduced an amended statute and it's there exhibit at 104 of the appendix House Bill 114 which is now before this Court for consideration for the first time.

This is a wholly different statute now than the statute which was before the Court on the original Cameron consideration and the difference is dramatically summarized in the new title of the statute which is an act to prohibit unreasonable interference with free ingress to and from any public buildings, premises, courthouses, public streets and sidewalks, and the word as the Court will notice unreasonably is now inserted into the text of the statute so that it prohibits picketing or mass demonstrations which unreasonably obstruct or interfere.

Now, I would like to point out to the Court that while this statute was approved on July 9, 1964 by a legislature, it was not called to the attention of the original three-judge court or to the appellants or to this Court on the original review so that the opinions dissenting in Cameron of both Mr. Justice Black and Mr. Justice White deal only with the original text of this statute.

Only on the remand hearing was the amended statute called to the attention of the three-judge court and the appellants, plaintiff below, and --

Justice William J. Brennan: Now, what's the significance of the amendment?

I didn't catch that.

Mr. Arthur Kinoy: The significance of the amendment, Mr. Justice Brennan, is that on the face of the statute, what is prohibited now is not obstruction or interference but unreasonable obstruction or interference and I would suggest --

Justice William J. Brennan: You say that's vague, is that --

Mr. Arthur Kinoy: Yes, Your Honor.

Now, this raises -- yes.

Justice Potter Stewart: That's the exact -- precise word that's used in the Fourth Amendment of the Constitution itself.

Mr. Arthur Kinoy: Exactly right, Your Honor.

And Judge Coleman raised that question in the majority opinion below.

Justice Potter Stewart: That's not a question; that's a fact.

Mr. Arthur Kinoy: That's right, and I would suggest that that illustrates sharply why the vice of unconstitutional vagueness is here present because as Your Honor pointed out for this Court in the recent search and seizure opinion in this term, the word unreasonable in the Fourth Amendment except as Your Honor pointed out, with certain few well-defined exceptions meant that you could not give to a police officer the right to determine what was an unreasonable search or seizure but quite to the contrary, it was a duty of an independent magistrate to rule in advance on an application for a warrant as the Katz case.

The word unreasonable in the --

Justice Potter Stewart: Well, that's because of other provisions in the Fourth Amendment which states that no warrant shall issue except upon probable cause.

Mr. Arthur Kinoy: I would -- I would suggest You Honor that we have the precise problem here.

What's the word unreasonable introduced into the face of the statute does?

It does what Mr. Justice Black suggests in his concurring opinion in Cox.

It gives to the policemen on the beat the power to decide to make the decision on the basis of what he believes subjectively is reasonable or unreasonable whether or not given picketing or whether or not given demonstrating is prohibited by the statute.

This is --

Justice Potter Stewart: I'm not quite sure I understand the chronology here, Mr. Kinoy.

At the time of these arrests, did the statute read as it now does or as it formally did.

Mr. Arthur Kinoy: As it formally did.

It was amended on July 4th.

Justice Potter Stewart: Well then --

Mr. Arthur Kinoy: July 9th, I believe it was.

Justice Potter Stewart: Under -- under what statute would these people be prosecuted?

Mr. Arthur Kinoy: These particular prosecutions are under the original statute.

The relief we seek is injunctive and declaratory judgment relief against the original and now amended statute.

Justice Potter Stewart: Well, I guess --

Mr. Arthur Kinoy: The court below, Mr. Justice Stewart, took judicial notice of the amended statute and the amended statute was the statute before the Court on remand below.

So that statute I would suggest is of course properly here.

Justice Potter Stewart: These prosecutions however of your present clients would be under the original statute.

Mr. Arthur Kinoy: That's right, Mr. Justice Stewart.

Justice Potter Stewart: But your injunction asks what?

Not only the -- that these prosecutions be enjoined but that all future prosecutions of any kind under the statute be --

Mr. Arthur Kinoy: That's right.

That this statute under Dombrowski -- that this statute now as written -- see, we acknowledge, Mr. Justice Stewart, that there is a sharp division in the Court and below on the facial constitutional issue as to the original statute.

That was perfectly clear in the dissenting opinion on the remand and the difference of opinion expressed by Judge Rives below and the opinions of Mr. Justice Black and Mr. Justice White.

We suggest that no such difference of opinion can exist today as to the amended statute, that whatever differences existed before now totally vague and why?

Because --

Justice Abe Fortas: Well, I suppose -- excuse me, Mr. Kinoy, but I suppose it's at least arguable that the insertion of the word “unreasonably” in the 1964 Amendment can really make any substantial difference because there is an element of judgment in the other statutory word whether a particular activity constitutes obstructing or interfering with free ingress or regress.

Mr. Arthur Kinoy: Precisely, Mr. Justice Stewart.

Our position is, and the record bears it out, that Mississippi interpreted the original statute as if it gave the arresting officer the huge undefined leeway which the word “unreasonable” now clearly gives it.

Justice Abe Fortas: Sir, you don't really make much point of the existence or the non-existence of the word “unreasonably” in the statute.

Mr. Arthur Kinoy: The only point, Mr. Justice Fortas, is that we say now that Mississippi has made it very clear what their intention was.

Their intention was to write a sweeping overbroad and vague statute.

They made it perfectly clear in their amendment.

And as a matter of fact, the transcript which we had set out for the Court's convenience on page 86 and 87 of our brief points out this extraordinary discussion between the county solicitor and the examining attorney where the county solicitor Mr. Dukess in discussing how he would enforce, the statute says the question -- and these are his words -- the question of what is reasonable I believe, Mr. Smith, is one that people differ on.

But this is the heart of the problem of vagueness in the First Amendment area because such a statute as Mr. Justice Black said in Cox does not provide for government by clearly defined laws but rather for Government by the moment to moment opinions --

Justice Abe Fortas: Is it possible in your judgment to have a statute that prohibits blocking ingress or regress to public buildings or to streets that were not the subject to that infirmity?

Mr. Arthur Kinoy: I think it might be possible, Mr. Justice Fortas.

I think it would have to be a very carefully drawn -- I think it would have to be very, very carefully drawn with very, very careful limitations.

Justice Abe Fortas: How would you phrase it?

Mr. Arthur Kinoy: Well, that would be a little difficult at this moment for me to phrase fully, Mr. Justice Fortas.

I'd want to write it out --

Justice Abe Fortas: Phrase -- phrase it partly for me.

Mr. Arthur Kinoy: Well, I -- I would put it in its negative, if I may, Justice Fortas.

I would say that I would make sure that this statute guaranteed the opportunity for full expression of First Amendment rights under reasonable conditions but that conditions were spelled out so that a policeman doesn't make the determination.

Justice Abe Fortas: You don't really mean that word, do you?

Reasonable, would you let that go in --

Mr. Arthur Kinoy: Oh, I wouldn't put it in my statute.

I would spell out the criteria precisely, and that's what I would suggest that this Court in the Edwards case in Mr. Justice Stewart's opinion warrants so sharply against, that if such a statute is to be written, it must be precise.

Justice Abe Fortas: I know, but would you or would you not agree that merely because people are exercising the right of free speech, they do not have a total immunity to block what goes on in the public buildings or even the block access to public buildings?

Mr. Arthur Kinoy: I would --

Justice Abe Fortas: Would you or would you not agree?

Mr. Arthur Kinoy: I would agree with that, Mr. Justice Fortas, and that problem is not here presented in this case.

As this case quite clearly shows the precise -- precisely reversed situation, precisely reversed.

Justice Hugo L. Black: I understand you do agree if the federal government somehow -- or the states somehow protected that public building like this one, like the Court is being held from having people come up and block access to it.

Mr. Arthur Kinoy: I agree with that, Mr. Justice Black.

I also agree as you have pointed out --

Justice Hugo L. Black: So you agree to that?

Mr. Arthur Kinoy: I agree to that.

I also agree that the fundamental values of the First Amendment must always be fully protected and that on a record as this where people in the first place where a statute is not being evenhandedly enforced, it must fall that secondly whereas Judge Rives points out in his opinion below and has the record so clearly indicates and as Mississippi concedes, these peaceful demonstrators, Negro and white citizens calling for the vindication of their most fundamental constitutional federal rights are walking in the very spot in which law enforcement officers for two months have told them it was proper to walk that under those conditions --

Justice Hugo L. Black: That you want to say that the officer has the right to decide for himself where there's a problem for them to walk there.

Mr. Arthur Kinoy: I would say, Your Honor, that when county officials have for two months blocked of a certain -- if you would look at the diagram which Judge Rives of course has attached to his dissenting opinion which is in the record, a diagram of the Forrest County courthouse, if for two months county officials have said that this is the area in which if you walk here it does not obstruct the main entrance to the courthouse that yes, under Cox and every other opinion of this Court, it would be as this Court has said indefensible entrapment in the area of the First Amendment to say that after that pattern of time, it's permissible to enforce a criminal sanction against people peacefully expressing their views.

Justice Potter Stewart: Mr. Kinoy, excuse me.

Justice Hugo L. Black: And you would hold that -- you would say that officers, deputy chairs or policemen and so forth cannot decide for himself whether it's reasonable for them to do it, cannot make any law by telling them they can come in, but he can -- to bar it, but he can make it a law to say you can come in.

Mr. Arthur Kinoy: Oh no, he can't make it a law.

That law was made when the Bill of Rights, Your Honor, was adopted.

The law which sanctioned the demonstrations was the First Amendment to the Constitution of the United States.

That's the law that says that people have the right to peacefully assemble, express themselves, and petition their government for regress of grievances.

Justice Hugo L. Black: But it doesn't say that they have the right to -- which the state cannot prevent to march up and down the streets that are dedicated to travelers.

Mr. Arthur Kinoy: No, but it does say that the state may not say some people can do it and other people may not.

Justice Hugo L. Black: That's a different issue.

Mr. Arthur Kinoy: That's -- and that's the issue, Mr. Justice Black.

This case presents --

Justice Potter Stewart: I didn't -- perhaps I misunderstand, Mr. Kinoy, but this conduct at the entrance or near the entrance to the courthouse had been going on for several weeks with the, at least implicit if not explicit permission of the --

Mr. Arthur Kinoy: Two months, Your Honor.

Justice Potter Stewart: -- local authorities for two months.

Then, what caused the change, as I understand it, was the enactment of this statute by the legislature of Mississippi.

Mr. Arthur Kinoy: Exactly right.

Justice Potter Stewart: And this statute was then read to these people after it was enacted.

A copy was sent down to this place and they copied, and this law was read to these people.

They were told about it and they were told, “Now, this is illegal.

Now, disperse.”

Isn't that it?

This wasn't something just a change of mind by the police as you replied, was it?

Mr. Arthur Kinoy: No, and we're all precisely --

Justice Potter Stewart: This was the enactment of a law by the legislature of Mississippi, wasn't it?

Mr. Arthur Kinoy: And Mr. Justice Stewart, that's precisely our point because the enactment of the law was designed as the Court said in Brown against Louisiana was designed and had the actual effect of stopping and cutting off otherwise peaceful --

Justice Potter Stewart: Of making it illegal --

Mr. Arthur Kinoy: Making it illegal to engage --

Justice Potter Stewart: -- to block ingress into the courthouse.

Until then it had not been illegal.

Until then, the police would have been taking the law in their own hands of they had arrested these people for blocking it presumably.

After the legislator -- the legislature passed the law, the police told these people about the passage of the law, said it's now illegal, now disperse.

Isn't that it?

Mr. Arthur Kinoy: Ah!

But what --

Justice Potter Stewart: These -- these are just the offset of police action.

This is legislative action --

Mr. Arthur Kinoy: Which I would suggest --

Justice Potter Stewart: -- of which the enforcement officers told these people, isn't that correct?

Mr. Arthur Kinoy: Which I would suggest, Mr. Justice Stewart, makes this situation doubly serious because it's extremely interesting.

Judge Coleman in his findings of fact said that up until April 10th when the first arrest took place, the picketing was peaceful and protected activities.

On examination, Mr. Dukes said that if the law had been in effect prior to April 10, the demonstrators would have been guilty of violating the law.

In other words, the law itself was designed to cut off peaceful, protected activities.

Justice Potter Stewart: I can't find that in the language of the Section 1 of the law that was passed.

It simply it's illegal to -- among other things to block egress or ingress in a public building, including a courthouse.

Mr. Arthur Kinoy: But what the transcript below shows, Mr. Justice Stewart, is what this Court pointed out in Button was so important in considering the operation of a statute, its setting and the way it operated.

Let me make this suggestion, Mr. Justice Stewart.

I would suggest that it's rather amazing that the majority below and the appellees do not discuss the arrests which took place on the afternoon of April 10 and the morning of April 11 and the morning of May 18.

They simply do not discuss them.

Why?

Because these arrests were of seven people, seven people with not a single bit of evidence in the record.

They didn't even attempt to show obstruction of anything whatsoever.

And as Judge Rives points out below, he uses the word “fantastic”.

He says it's incredibly fantastic to believe that the arrests of seven people carrying signs saying “Mississippians are Americans, too” and “We demand the right to vote” could conceivably be the violation of any state law.

Now, we suggest that this is highly significant because this shows the way in which the Mississippi authorities utilized the statute, assuming Mr. Justice Stewart, which we do not because the Court is aware of our position of challenging the facial unconstitutionality of the statute, both originally and as amended, particularly as amended.

But assuming a valid statute here, under the second branch of Dombrowkski, I would suggest that nothing is clearer as Judge Rives points out a pattern of utilization of a conceivably valid state statute to harass the exercise of Civil rights and First Amendment activities.

Justice Abe Fortas: Mr. Kinoy, wasn't there some statute in Mississippi prior to the indictment of this one that would have made blocking access to courthouses unlawful?

Mr. Arthur Kinoy: Yes, Your Honor.

There were probably ten statutes --

Justice Abe Fortas: Do you have those cited in your brief?

You can just tell me yes or no.

I don't want to --

Mr. Arthur Kinoy: Yes, they are in the brief, Mr. Justice Fortas and they're also cited in the Court's opinion in Peacock.

There are a whole host of statutes which were available to the Mississippi authorities, which if these individuals were really blocking the ingress to that courthouse before the enactment of this statute, could have been invoked by the Mississippi authorities.

Justice Potter Stewart: Which court's opinion at Peacock or which Peacock --

Mr. Arthur Kinoy: I think yours, Mr. Justice Stewart.

I think the charges which the Peacock --

Justice Potter Stewart: Oh, I cited all those charges, yes.

Mr. Arthur Kinoy: The plaintiffs who are being removed on, yes.

You cited them sir, I believe, in your opinion.

Now, what we would suggest is that the record shows in light now that Mississippi has in fact interpreted the statute as if it had an overbroad sweep bringing into its orbit protected First Amendment and civil rights activities, that the full criteria of Dombrowski under both the first branch and the second branch are met.

The only point I would like to make to the Court in conclusion is that what is most serious here is the final suggestion of the majority below that federal relief should be denied because picketing in Mississippi to obtain a vote and to encourage others to do so is a thing of the past.

And I would suggest to the Court that as the coroner commission report pointed out just two days ago, country stands at a crossroads, that at this moment in Mississippi and throughout the nation, a strengthening of federal power to protect the peaceful utilization of First Amendment liberties in the solution of fundamental problems which rift this nation is the highest duty and obligation of this Court.

That to deny relief today in this case would be to advocate the higher responsibility of the federal national judiciary.

Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Wells.

Argument of Will S. Wells

Mr. Will S. Wells: Mr. Chief Justice, may it please the Court.

Please pardon me but I've got -- I'm just getting over a pretty bad cold and I've got a little laryngitis.

I'll try not to let it interfere too much.

I regret that Mr. Smith yesterday in all most of the beginning of his argument saw fit to go outside the record and take a verbal salvo at the south and Mississippi particularly.

He said to this Court conditions are still bad in the south and particularly in Mississippi and we need every vehicle to protect people's federal rights.

He added just last night that there was a shooting in Mississippi at Mr. Charles' evidence.

That statement, if the Court please, was unwarranted and untrue.

I would be less than frank and honest with this Court if I did not say, and I'm not at all proud of it that in the past, Mississippi has been grossly discriminate or discriminatory particularly in the field of registering and voting rights for Negroes, and I say I'm not proud of it.

But I can say to this Court that within the past or for the past two years at least, we've done a lot to get our house in order and we need and I think now deserve all the help we can get.

I've been an Assistant Attorney General of Mississippi since June of '62 and for the last three years, I've been more or less the liaison between the Attorney General's office, the Governor's Office, and the Department of Justice.

Since the fall of 1965, there has been no problem whatsoever in Negroes registering and voting in Mississippi, none whatsoever.

Over 200,000 of them are registered there to date.

In last summer's general primary -- I mean primary and general elections, more than 75 Negroes were candidates for public office.

Between 25 and 30 of them were elected, elected to members of board to supervisors, justices of the peace, constable, clerks to the chancery court, members of school boards, one elected to the legislature.

Just last month in a special election to fill the unexpired term of Governor Williams as congressman, there were certain candidates.

Candidates in the race, one was Charles Edwards, a Negro.

He led the ticket and he's in the runoff in the second primary for the next Tuesday.

I know what the situation is there with reference to voting and registering, and there is no problem.

In all of the elections last summer, and I worked -- I have pushed all knowledge of this.

I worked with the Justice Department.

Those elections were observed by federal observers, members of the Justice Department and there was no criticism of any of them, no charges of unfairness in any of them.

So I say we've gone a long ways to get our house in order and we need all the help and encouragement we can get.

Now, to put this case in perspective, if the Court would please, and I don't know whether Mr. Kinoy sought to confuse everybody but he certainly did me about some of the issues in this matter.

In the first place, there is no concession by the State of Mississippi whatsoever that can be found anywhere of selective enforcement of the statute.

Here's what counsel is overlooking. Parades on the public streets of Hattiesburg are under the jurisdiction of the Mayor and Commissioners and Police Department of the City of Hattiesburg.

The State of Mississippi has no control over those public streets.

They are streets that belong to the city, maintained and paved by the city.

The sheriff has no supervision over who can use them and who can't.

The City has nothing to do with the enforcement of this statute.

This statute has to do with protecting publicly owned buildings such as in this instance, courthouses, which are under the jurisdiction of state authorities or county authorities.

We are talking about --

Justice Potter Stewart: Is there a parade ordinance in Hattiesburg?

Mr. Will S. Wells: No, sir.

There's no parade ordinance in Hattiesburg that I know of at all, but the Court has -- the sheriff would have nothing in the world to do with it.

They go to parade there in the public streets, Mr. Justice Stewart, and they are not on the courthouse grounds.

They are not on the sidewalks adjoining the courthouse.

They are on a public street that just happens to run in front of the courthouse.

That --

Chief Justice Earl Warren: Can anyone parade at anytime he wants, sir?

Mr. Will S. Wells: I think, if the Court please, that they make some arrangement with the city for the purpose of the police helping direct traffic and so forth and let them know it, and I know of no problem in the parades.

They have school band parades for the schools and if these people want to parade, they could parade.

But they go to the city.

It got nothing to do with the courthouse.

Chief Justice Earl Warren: But if civil rights workers want to parade through the streets and have signs such as they had in this situation, are they free to do it?

Mr. Will S. Wells: Yes!

There would be absolutely no problem with that as far as the city is concerned.

Chief Justice Earl Warren: The authorities wouldn't interfere in any way?

Mr. Will S. Wells: No, sir.

Chief Justice Earl Warren: Any time of the day?

Mr. Will S. Wells: No, sir.

We're dealing with a situation --

Chief Justice Earl Warren: Is that -- is any of this in the record?

Mr. Will S. Wells: Not in the record if the Court please.

That didn't come up because it's not a part of it but I happen to know that is the situation.

Chief Justice Earl Warren: Well, you are rather objecting to Mr. Smith's speaking of the record.

I was just wondering if all of this you've told us is in the record.

Mr. Will S. Wells: No, sir.

And whether it was an answer to Your Honor's question.

Chief Justice Earl Warren: No, before.

I mean what you were saying before about the conditions and --

Mr. Will S. Wells: I was not objecting to -- I was going over --

Chief Justice Earl Warren: -- how they are free to parade and so forth at any place.

Mr. Will S. Wells: That is not in the record.

I was -- I was responding when you asked the question, Mr. Chief Justice.

But let's go back if the Court please and get the history of this lawsuit and put it in perspective.

Several days prior to January 22nd, and this is all in record, 22nd 1964, leaflets were distributed all throughout Hattiesburg by the COFO Organization, Council of Federate Organizations which was then at that time, calling on Negroes and sympathizers to meet at the courthouse on the 22nd and called it Freedom Day, recommending that the parents take their children out of school and come to the courthouse and about 200 of them assembled and they marched all up and around the courthouse.

They were not bothered, they were not molested.

The authorities did what they did to keep down any instance and were able to do it.

And then from January 22nd on until April 10th, practically every weekday, there was picketing sometimes in small groups, sometimes in larger around the courthouse.

Justice Abe Fortas: Is there any evidence that -- of anybody who was blocked from ingress or regress who could not go in to the courthouse or who could not come out of it without being interfered with?

Mr. Will S. Wells: After this statute was passed?

Justice Abe Fortas: At any time.

Mr. Will S. Wells: Yes.

On the day of the arrest, there's evidence here of an attempt of the demonstration agent to come out of the hall.

She had to come out to use that and she couldn't.

She had to actually fall in to the picket line and march with the picket line all to get out -- get around --

Justice Abe Fortas: I remember that testimony and perhaps one may regard it as impressive or not impressive.

I also remember -- seem to remember that it said that that is the only evidence in the record.

Mr. Will S. Wells: If the Court would please, we get --

Justice Abe Fortas: Is that so?

Mr. Will S. Wells: That's the only evidence of any particular person, yes sir.

But we did not take the position in the trial of this case that we were obligated before the Court on the question of proving that these people were guilty or innocent trying out the facts of whether or not they were guilty of a violation of a statute.

That's a matter to be tried before a jury as each one of them I don't know.

They would have to be judged from separate affidavits, be proven beyond -- guilty beyond reasonable doubt.

They're entitled to a jury trial and we did not take it that that Court of Equity was there to try the facts as to whether each individual was guilty or not but the question of whether or not that this was a good faith prosecution and not something to harass.

Now, coming on back to the parade or to the demonstration, as Mr. Dukes testified, this was on tax collecting time and this was being done in such a way that people just couldn't even get in to the front of the courthouse to pay the taxes, so the city and the county guard --

Justice Abe Fortas: Well, that's what I was asking.

Is anything like that in the record?

Mr. Will S. Wells: That was Mr. Dukes' testimony that that was a situation at the beginning back in --

Justice Abe Fortas: That people could not get in to the front of the courthouse.

Mr. Will S. Wells: Yes, sir.

You said that they were blocking the front entrances of this courthouse.

Justice Abe Fortas: There is testimony to that effect?

Mr. Will S. Wells: Yes, sir.

In this opinion.

Chief Justice Earl Warren: Where is it?

Where do we find it?

Mr. Will S. Wells: As to the matter, if the Court please, I suggest that you will find on page 245 and 246 of the appendix and Mr. Dukes, the county attorney's testimony on 246.

I asked him this question, “Well, after these big marches and his great group, was there any effort made to set up some barricades and outline a place where they could picket?”

“It was absolutely necessary, Mr. Wells because the manner in which they are raising to picket completely blocked the front entrance of the courthouse.

And being in January and the tax paying time, we had to make some arrangements for our people to get to the courthouse or barricades were set up on north and south of the main street and so forth, and asked them to picket there.”

Justice Abe Fortas: And after -- but after the barricades were set up and at the time of the arrest, there's no such testimony, is there?

Mr. Will S. Wells: Then after the barricades were set up and they were asked to picket in this one area, Mr. Justice Fortas, there is no testimony other than some testimony stating that during that time, Mr. Dukes testified that --

Chief Justice Earl Warren: Where -- where is this testimony?

Can you find this testimony of the Court?

Mr. Will S. Wells: The question asked Mr. Dukes by Judge Rives, I believe, just a minute please.

On page 267 of appendix, Mr. Chief Justice, Judge Rives says, “Mr. Dukes, may I ask you, did any persons complain to you as a prosecuting officer, the county prosecuting attorney of the county that they had undertaken to gain access to the courthouse and access have been brought by the witness?”

“Judge Rives, we had complaints since January 21st constantly.”

Chief Justice Earl Warren: Well, is that a part of the evidentiary record?

Mr. Will S. Wells: Yes, sir.

This is in the appendix.

Page 267, it is part of the -- the transcript of the testimony of the full three-judge court.

Chief Justice Earl Warren: I wonder if this question and answer isn't more column heading.

On page 246, I guess it's Mr. Dukes who is testifying and Mr. Wells was asking a question yourself.

Mr. Will S. Wells: Yes, sir.

Chief Justice Earl Warren: “Now, starting about around April 1st, Mr. Dukes, I believe they were picketing their free will everyday.”

Answer, “I believe that's correct.”

“Were they in any great large numbers at that time?”

Answer, “It would vary, Mr. Wells.

They were not in these large numbers, of course.

This came on January 22nd, which was several hundred.

But it would vary anywhere from 7, 8, 13, 14, 15, and so forth, some grown, some young.”

Now, is that the -- was that the extent of the picketing after -- after the police blocked off the way, 6 or 7 or 8 or up to 13, 14, 15, some young and some --

Mr. Will S. Wells: That's right.

Chief Justice Earl Warren: -- someone else.

Mr. Will S. Wells: That was the extent right on -- up until.

Chief Justice Earl Warren: Now, while that was being done in that -- in that degree, was there any effort on the part of these people to block anyone from the entry or exit from the courthouse, or was there anything done by them that had that effect?

Mr. Will S. Wells: No, sir.

Chief Justice Earl Warren: So the last two months or so, there was no interference of any kind with anybody going into that courthouse.

Mr. Will S. Wells: At those small numbers, not as far as the record is concerned and we knew.

No, sir.

Chief Justice Earl Warren: Well, that's what we're dealing with --

Mr. Will S. Wells: That's right.

Now, if the Court would please, following that.

Chief Justice Earl Warren: I beg your pardon?

Mr. Will S. Wells: Now following this in April when this statute was passed, and it wasn't passed just for Hattiesburg.

We had the situation in various parts of the state.

When this statute was passed, it became the law.

On the 9th of April, the county attorney, the district attorney, the sheriff and his deputies came out about four o'clock and the sheriff asked these people to stop -- I want to read you something, is that the state of Mississippi has passed this statute and I want you to hear it read.

And they read the statute to them in detail and he said, “Now, I do not want to have to arrest you people but you cannot picket in such ways as to obstruct or interfere with the entrances and exits of this courthouse.”

Justice Thurgood Marshall: How many people were there at that time?

Mr. Will S. Wells: At that time, the record is not clear but there were some 15 or 20, Mr. Justice Marshall.

Justice Thurgood Marshall: Is there anything in the record that they were obstructing?

Mr. Will S. Wells: On that occasion?

Justice Thurgood Marshall: Yes, sir.

Mr. Will S. Wells: No, sir.

There's nothing in the record that --

Justice Thurgood Marshall: Then what was the necessity of reading the statute to them?

Mr. Will S. Wells: He wanted to advice them that as he explained to them, the way at times you have been doing it, you have been blocking these entrances and I want you to know it and ask you to -- I'm not saying you can't picket but do it in such a way and space yourself in such a way as you won't do it.

Justice Thurgood Marshall: Did he tell them that?

Mr. Will S. Wells: Yes, sir.

The record shows that he told them.

Justice Thurgood Marshall: And then, how many --

Mr. Will S. Wells: Now that night, Mr. Justice Marshall, that night they had a meeting.

They discussed the statute with a lawyer.

They came to the conclusion that it was unconstitutional.

They prepared the written statement for the press and the next morning, they came not in these numbers but some 40 of them came.

Justice Thurgood Marshall: Did they obstruct any entrances?

Mr. Will S. Wells: Yes, sir.

Justice Thurgood Marshall: Where is that in the record?

Chief Justice Earl Warren: Where is that in the record?

Mr. Will S. Wells: This one later that tried to get out and then the sheriff and the county attorney himself went out and tried to see if they could move against it and the pictures themselves, if the Court please, in here show it became -- it could be a picket line and became a picket fence and it shows right at their entrances that they were --

Chief Justice Earl Warren: What is the testimony on it?

Mr. Will S. Wells: The testimony from Mrs. -- testimony of Mrs. Bricket beginning on page 268 of the appendix.

Now, on the bottom of page 269, “Now, Mrs. Bricket, in connection with the duties of your since she was home demonstration aid, do you frequently have occasion to go to the can agent so?”

“Yes, sir.”

“Generally by how?”

“Sometimes four, five times a day.

It varies from day to day.”

And she goes on and explains her situation and the condition that existed there, that day.

She testified that there were some 35 or 40 who were walking there very close together.

“Did you have on occasion, during the time that that line was being picketed, to go to the courthouse?”

“Yes, sir.

To pick up some materials.”

“Would you tell the court just what happened and how you got there?”

“I started the regular route and they were so close together that I had to wait for just a moment to get in line and I fell in line with them and started weaving back and forth until I reached until the front steps and then dropped out of the line and got in the courthouse.”

Chief Justice Earl Warren: How long would you say the walkway was, were prescribed by the authorities for these people to walk around?

Mr. Will S. Wells: From beginning of -- start all the way around -- if the Court would please, they would walk -- as this picture shows, part of this walkway was in the courthouse ground.

Justice Hugo L. Black: Where are the pictures?

Mr. Will S. Wells: The pictures are in the appendix.

All these exhibits are in the appendix, Mr. Justice Black, beginning at page -- on page 93 of the -- well, just a minute.

The pictures -- 95 of the appendix and run through 102.

Justice Abe Fortas: Well, perhaps you can help me on this.

I find -- I may misunderstand this but I find Mrs. Bricket's testimony very unimpressive that I get the picture correctly or maybe I don't.

She said she came out of her office and she had to go on a walk, which was why it's enough for only person at the walk so that you couldn't have two people walking abreast.

And there was a picket line there and in order to get to where she was going, she had to fall in line -- fall in behind some of the pickets.

Am I wrong about that picture so I read it on 270?

Mr. Will S. Wells: If I can illustrate this by these pictures, which she was --

Justice Abe Fortas: Well, that would get to the --

Mr. Will S. Wells: If the Court would please, this sketch at page 86 -- let's see, there's one on 86, see if I've got --

Justice William J. Brennan: Well, that's at 71.

Mr. Will S. Wells: 71.

If the Court please, the way that drawing came about is this way.

After this hearing involuntary, Judge Rives who was there with his law clerk and his law clerk's wife decided to go back to Montgomery by way of Hattiesburg, and he went by and made an inspection of the situation as existed then, which was some good long private practice the same.

And I understand he's -- and this -- I got this information alone.

I got from him, so he's not --

Chief Justice Earl Warren: Well, let's take what's in the records, if you please.

Mr. Will S. Wells: Mr. Chief Justice, I have -- I think how this got into the record.

This was prepared by Judge Rives himself personally on his law clerk --

Justice William J. Brennan: But that's not my question, whether it would help us understand where this lady was, where the walk is so to help us understand what the layout was.

Mr. Will S. Wells: Yes, sir.

Justice William J. Brennan: Well, I mean the -- the several entrances --

Mr. Will S. Wells: Alright sir, the line of march, Mr. Justice Brennan, to the lower part of this drawing and to the left is the sidewalk on the public street coming on around to Eaton Street.

Then, you'll notice this little -- as he's got it .31 walk at least from the street running north, runs on up by here.

It curves a little bit to the left, the line march, it comes back out, and that's the circle they were making.

Justice William J. Brennan: Well, at that point, it says 3.8.

Is that a building?

I notice north of the line --

Mr. Will S. Wells: 3.8?

Justice William J. Brennan: Yes, that's the width of the walk.

Mr. Will S. Wells: That's the width of the walk.

Justice William J. Brennan: So what -- I forgot to say it in.

What building was she leaving?

Mr. Will S. Wells: Mrs. Bricket's office -- the courthouse is here to the right of this drawing.

Justice William J. Brennan: Yes.

Mr. Will S. Wells: In other words, this is a courthouse steps right here, in front of them.

And this is the courthouse --

Justice William J. Brennan: And what's the entrance she was leaving?

That's all.

Mr. Will S. Wells: She was leaving -- her office is where this entrance to Home Demonstration Office here you see there, that's her office.

Justice William J. Brennan: And she was coming out of that --

Mr. Will S. Wells: She comes out of there and comes around to her right as she comes out --

Justice William J. Brennan: And that is where it says 6.7 --

Mr. Will S. Wells: Yes, sir.

And then comes out into this area and follows this line in here to go up into the courthouse.

Justice William J. Brennan: Where was the picket line?

Mr. Will S. Wells: The picket line was right across here.

Yes, sir.

Justice William J. Brennan: Has she stepped into the line --

Mr. Will S. Wells: She had to come in, couldn't get through.

She had to step in the line and weave her way until she could get out.

Justice William J. Brennan: Walked right along that walk 6.7 feet wide?

Mr. Will S. Wells: Yes, sir.

Justice William J. Brennan: The line where the march passed that's a point where it says 3.8 --

Mr. Will S. Wells: Yes, sir.

Justice William J. Brennan: -- and she stepped into the line?

Mr. Will S. Wells: Yes, sir.

Justice William J. Brennan: Well, I gather that's only wide enough for one person at 3.8.

Mr. Will S. Wells: Just about.

Justice William J. Brennan: Yeah.

Justice John M. Harlan: I want you to understand the issues basically for --

Mr. Will S. Wells: Mr. Justice Harlan, here's where -- what I see the issue to be in this case, is our position that this statute is about as narrowly drawn as it could be.

Justice John M. Harlan: Which one, the last one?

Mr. Will S. Wells: Yes, both of them or the last one and the way this came about as there is one that statute was first passed, the word “unreasonable” was not in there preceding the word “interfere”.

It was to obstruct or interfere.

To be quite frank, it was my thinking that even at court where you talk about interfering, any little thing can be interfering and I felt and I still feel and it was at my suggestion that the legislature amended that statute and to put the word “unreasonable” before interfere because it would be my opinion that any court would interpret it to be an unreasonable interference rather than just some little interference.

I think unreasonable interference narrows it rather than broadens it and it was actually at my suggestion to legislature did that.

Justice John M. Harlan: Well, I could just wish you could do that to deal with one square 2283 did this junction.

Mr. Will S. Wells: Yes, sir.

Justice John M. Harlan: And if it doesn't or if it does that whether or not on the Dombrowski federal court notwithstanding as a jurisdictional injunction, either on the theory of the vagueness of the statute on its face or because there's evidence in the record (Inaudible) for enforcement of the statute.

Mr. Will S. Wells: That's just exactly if the Court please --

Justice John M. Harlan: Maybe we can spend all the time and the lower courts can spend all the time trying the issue of guilt or innocence in Federal Court of Equity to determine whether or not any of those legal questions are to justifies on each of this injunction.

Mr. Will S. Wells: Yes.

Now, Mr. Justice Harlan, let me --

Chief Justice Earl Warren: Before we get to that, is there -- isn't there also the question as to whether -- whether these people did demonstrate in such a manner as to obstruct or interfere with free ingress or egress to or from any public premises?

Now, isn't -- isn't that an issue in the case?

Mr. Will S. Wells: If the Court please, the factual issue as to whether anyone of them did, I don't think it's for Court of Equity to determine.

I think that the question -- the view to determine here is this, is this a good faith, honest good faith prosecution that's not just done to harass somebody?

Can they get a fair trial in the courts of Mississippi?

Chief Justice Earl Warren: Well, but you -- you have put in this record all of these diagrams and you put all these pictures in here for the purpose of showing that there was an unreasonable demonstration.

Now, isn't it an issue in this case whether -- whether they did obstruct or in such a manner the ingress or egress tour from -- do you want us to forget about those now?

Mr. Will S. Wells: But these pictures were put in there for this purpose, to show that at least they have probable cause here to justify some judge.

Now --

Justice Hugo L. Black: You take the position as I understand it the natural and normal way to try to defend it in this country is where he is in a court charged with the offense and can get a trial by jury that he is entitled to.

Mr. Will S. Wells: Yes, sir.

Justice Hugo L. Black: And that you -- we are not here to pass on that question at this time after the guilt or innocence of either one of them.

Mr. Will S. Wells: That's exactly my position, if the Court would please.

That's exactly the position I took with the lower court and as Judge Coleman said, we are not trying to try these people as to whether they are guilty --

Justice John M. Harlan: Can I ask you another question?

Mr. Will S. Wells: Yes, sir.

Justice John M. Harlan: How do you know that there's an alleged offense committed?

Mr. Will S. Wells: The alleged offense was committed, Mr. Justice Harlan, on April 10, 1964.

Justice John M. Harlan: And what are the tradition of your state court in Mississippi with respect to the trial of this case whether you've taken four years to have this case to approve the state courts and then to come up here?

Mr. Will S. Wells: If the Court please, this cases could be tried in -- that in the county court, they could be tried in short order.

I mean that I do not grant at all.

They then could be appealed to the Circuit Court on the record, that's made there and then the Supreme Court of Mississippi and then here.

Chief Justice Earl Warren: How long would it take between the trial court and the Circuit Court?

Mr. Will S. Wells: I'll say probably 60 days.

Chief Justice Earl Warren: And how long would it -- would it take the Supreme Court of Mississippi to decide this case normally?

Now, I'm -- I'm talking about this kind of cases normally.

Mr. Will S. Wells: If court is up with its docket for the full, Mr. Chief Justice, I would say four months outside.

Chief Justice Earl Warren: Four months outside, four months from the time of --

Mr. Will S. Wells: From the Circuit Court to Supreme Court, yes sir.

Justice Hugo L. Black: Is there a law in Mississippi that forbids the defendants to raise the constitutionality of this statute?

Mr. Will S. Wells: They have actually raised it in this case, in its inception before they were removed.

Justice Hugo L. Black: In Mississippi courts?

Mr. Will S. Wells: Yes.

Justice John M. Harlan: Now we've been four years -- four years decided whether or not the federal courts have the right to enjoin the prosecution.

Mr. Will S. Wells: And --

Justice John M. Harlan: And in the meantime, the state prosecution will handle the state's stay.

Mr. Will S. Wells: Yes, sir.

And may I say even this, Mr. Justice Harlan, that even if you would determine whether you had the right to do it, it's the question of whether they're entitled any relief in the criteria of Dombrowski in this case.

The theory on which they ask for these injunctions to start with was this, and they admitted though for us that the purpose of these demonstrations was voting registration.

And in their motion for preliminary injunction all the way through, that unless they were enjoined, there would discourage Negroes from registering to vote and correct they're moot.

The facts in this record show that after the last arrests were made, the ones that they say that if you stop us from doing this it's going to cut down the registration, the record shows that from the time of the arrest and when there's picketing as much as was seized that more Negroes registered after that until the time of this trial than had registered prior to it.

Justice Thurgood Marshall: Does the record also show the part that federal government had in that?

Mr. Will S. Wells: This -- there was one witness who testified in connection with suit against Mr. Lien, yes sir, the registrar.

Justice Thurgood Marshall: We don't know whether this helped or hurt, do we?

Mr. Will S. Wells: As far as the record is concerned, Mr. Justice Marshall, the record has put in strong that it did not hurt.

Justice Thurgood Marshall: Well, did the record show that they continued to picket?

Mr. Will S. Wells: After these arrests on April 10th and 11th, they continued to picket there in smaller numbers not blocking the entrance for 38 days.

Justice Thurgood Marshall: And there wasn't an arrest?

Mr. Will S. Wells: And there was no arrest.

Justice Thurgood Marshall: What about Mr. Kinoy said some seven people were arrested?

Mr. Will S. Wells: In just a minute, I'll come to that if I may.

Here's what happened.

On the 10th that morning, these 38 or 40 people were arrested.

That afternoon, there were nine more arrested.

Justice Thurgood Marshall: For doing what?

Mr. Will S. Wells: They were there --

Justice Thurgood Marshall: Obstructing?

Mr. Will S. Wells: Just a minute now, please sir.

As soon as the county attorney found out about the nine arrests that afternoon, all but one were juveniles.

They were immediately released to their parents and no charges were made against them and have made on against them.

And the one made against the one grown person that was there leading them, if it ever gets back to state court, it's going to be dismissed, so they don't have a problem with adjoining those.

Chief Justice Earl Warren: Why is that going to be dismissed?

Mr. Will S. Wells: Because she would be there alone, Mr. Chief Justice.

They were with these children.

These arrests were made by the deputy sheriff and after checking into it by the county attorney, he felt these were juveniles in the first place and he felt that it would not warrant to go ahead and charge them with it.

They were released to their parents and kept in a short time.

In other words, Mr. Chief Justice, sometimes an officer can make a mistake in arresting somebody.

When somebody finds out, they'll say, “Well, I'm not going to prosecute.”

Those things can happen, not necessarily in these areas but in other areas, and he felt it was not enough sufficient evidence to justify a prosecution.

Chief Justice Earl Warren: How young were they?

As young as one of the little children shown in these pictures --

Mr. Will S. Wells: No, sir.

Chief Justice Earl Warren: -- that you have?

Mr. Will S. Wells: They were --

Chief Justice Earl Warren: There -- there's a little child in --

Mr. Will S. Wells: No, sir.

Chief Justice Earl Warren: -- they were align and --

Mr. Will S. Wells: No, sir.

They were -- 14, 15, 16, and 17 years old.

I beg your pardon?

Justice Hugo L. Black: I suppose Mississippi is not responsible for having the little child in line.

Mr. Will S. Wells: No, sir.

No, sir.

No, sir.

We feel we take this position, if Your Honor would please, this statute is certainly as narrowly drawn as I think it could be and we feel that the state has certainly got a right to go no further than they have.

Justice Hugo L. Black: May I ask you a question?

Are you familiar with ex parte Young?

Mr. Will S. Wells: Ex parte --

Justice Hugo L. Black: The case -- our case of ex parte Young where prosecutions were enjoined and this Court sustained them?

Mr. Will S. Wells: Mr. Justice Black, I have read the case but I frankly am not --

Justice Hugo L. Black: Well, it showed that unless an injunction was issued, there would be various harassments such as constantly arresting, increasing the fine from day to day so that it might be within a few weeks, a fine of a million dollars would be imposed, and various things like where the state was about to harass these people to death.

And under those circumstances, it was still -- and those circumstances will require -- was held that the state could be enjoined from doing it under they could get it tested in way which did not take all their money away from them and send them to jail for life.

Has there been any threat like that in Mississippi in these cases?

Mr. Will S. Wells: No, sir.

None whatsoever.

Justice Hugo L. Black: I would take that case is more relevant than Dombrowski.

Mr. Will S. Wells: But proof that this thing shows, if Your Honor would please, the very thing happened from April 11th until May 18th, they continued to picket in the same area but in small enough numbers not to block anything and they were not molested.

On the 18th of May or the 28th of May -- back in May, another large group came and there were some arrests made there when they came in large numbers again and it blocked.

Chief Justice Earl Warren: Is that were the seven that Mr. Kinoy spoke about?

Mr. Will S. Wells: No, sir.

He's talking about that afternoon on --

Chief Justice Earl Warren: I beg your pardon?

Mr. Will S. Wells: No, sir.

The seven that he was talking about, they actually were nine and not seven, the ones I was talking about by the juveniles.

In May --

Chief Justice Earl Warren: What was that seven he told?

Mr. Will S. Wells: In -- in May --

Chief Justice Earl Warren: I beg your pardon?

Mr. Will S. Wells: In May, there has -- there were some 15 or 20 arrested in May as I recall.

Chief Justice Earl Warren: Is that on the record?

Mr. Will S. Wells: I think Mr. Dukes has testified.

He was asked about it.

He said he did not remember how many but there was a large group.

Mr. Dukes has accounted to it.

Chief Justice Earl Warren: Did they obstruct anybody's ability to enter or leave the courthouse in the following occasions?

Mr. Will S. Wells: If the Court please, that I do not know if the record is saying on that.

They were -- that's what they were charged with having done in that large group on that day.

We feel, if the Court please, that this statute without regard to whether or not 2283 is a law, we feel first that the statute is not unconstitutional on its face.

We feel that there's no showing here that it's being constitutionally applied to these people.

The -- the argument about the selective enforcement is covered in Judge Coleman's opinion in dealing with parades in the city and the public street on the one hand, that it had nothing to with the sidewalks adjoining the courthouse and walkways going in to the courthouse.

They're not synonymous at all because the statute doesn't come into place.

Even Judge Rives at some of his questions, he said the Court would be interested in what he would -- what he asked -- Judge Rives asked Mr. Dukes on -- on page 265 of the appendix.

And Mr. Dukes, he was the prosecuting attorney.

Judge Rives, when there was a colloquy between Mr. Smith and me about the difference between parades and the kind he was talking about in demonstrations.

This kind Judge Rives thinks, said, “I think we'd get into an argument on the law.”

“I would like to ask the witness however can a plaintiff be granted to parade in such a manner in your opinion as to block the entrance to the courthouse?”

By the witness, “No, sir; I do not think so.”

Judge Rives, “In other words, could the city ground appointment to violate that statute?”

The witness, “Did the city grant appointment to march around the courtyard to violate statute?

No, sir; I don't think so,” Judge Rives, “Permits and the statute are two separate things?”

“Yes.”

It's definitely my opinion that the city certainly could bring in information to violate the state statute.

Then Judge Coleman, “Let me ask you this, the parading that you've been talking about, was that in the streets or was that on the courthouse grounds and adjacent to the entrances to the courthouse?”

“It was in the streets, Your Honor.”

Chief Justice Earl Warren: I was wondering a few moments ago when you said you thought this statute was drawn as tightly as it could be done, I was wondering why it couldn't have said that any -- any group of people who mass with the intention of blocking off the ingress and egress from the -- from the courthouse.

I'm wondering why -- that couldn't have been said in there.

Mr. Will S. Wells: Mr. Chief Justice, the statute is not against somebody who gets together with the intention or with a conspiracy or with a purpose.

It posed to set down to this, that you actually do it.

That you actually do it, that's why this is prohibited.

There's no prohibition against picketing.

There's not prohibition against anything else.

You just says this, you can't do it in such a way as to obstruct or unreasonably interfere with ingress and egress to the entrance of this building.

That's all --

Chief Justice Earl Warren: Well, as I understand it, your record shows that they have parades that blocked the whole street so that people cannot -- cannot get in or out of the -- out of the courthouse and that the sanction that is permitted under this statute --

Mr. Will S. Wells: No --

Chief Justice Earl Warren: -- but those are -- some people go with some signs saying that people in Mississippi are citizens also, that it's selectively enforced.

Mr. Will S. Wells: No, sir.

Mr. Chief Justice, for a group of people to parade down the public street of Hattiesburg and pass in front of the courthouse is a matter to be controlled by the City of Hattiesburg.

Now, that's a different situation from -- that would keep you from going across the street, to get across that street over here.

That's all for a short length of time, just to parade there should not keep them and this statute has nothing to do with that one way or the other.

But this statute says this, you can't --

Chief Justice Earl Warren: But you said -- you told us that there was no regulation on -- on whatsoever, on parades and on anybody and then in numbers that they wanted or for any purpose if they wanted, could parade -- parade throughout the streets of Hattiesburg and this record shows that they do not enforce that even though the streets are blocked so people can't get across to the courthouse.

Mr. Will S. Wells: The only question is that the record said this, does that parade pass in front of the courthouse?

Yes.

Could people get from across over the Beacon Street while the parade is passing by?

He said, no.

For a minute, they could.

Just five minutes the parade goes by and they can come across the street.

But that's not the -- that's not all on the courthouse.

This courthouse sits sort of in the middle of the square.

Streets come in and out of its way from this one.

I think he's been the streets in Hattiesburg with stalls and so forth on it outside and the only thing this thing would prohibit there is this, don't demonstrate in such ways as to block or to obstruct or interfere with these entrances.

Justice Hugo L. Black: Suppose the parade that had started up and down the streets would have stopped in front of the courthouse and blocked the entrances, would it be barred?

Mr. Will S. Wells: I think the sheriff would have the right to go out there, yes sir, and enforce the statute on them.

They would have the right.

Justice Thurgood Marshall: And arrest them?

Mr. Will S. Wells: If they insisted on staying right there and would prevent them from getting there, I think he would have that right to charge them, yes.

This is, as Mr. Justice Black said, just stop there.

Justice Thurgood Marshall: What exactly --

Mr. Will S. Wells: There had to be some rule of reason.

Justice Thurgood Marshall: If the marchers leaves and stop there, he'd arrest them?

Mr. Will S. Wells: I don't think he would.

No, sir.

And I think if a civil rights group stopped there, he would not arrest them either at the streets.

Justice Thurgood Marshall: You're not in complete agreement on that.

Mr. Will S. Wells: Mr. Justice Marshall, situations have changed dramatically in Mississippi, sir, since you were last there, I am happy to say.

Justice Thurgood Marshall: It was a month or so when I was last there.

Mr. Will S. Wells: Well, they changed then -- they had changed even then, if you were there a month or so ago since you were a long time ago sir, considerably so.

And I'd like to say that I have done what I can as the assistant attorney general to help change -- I've done my best to have -- even Judge Rives complimented me when I before the Fifth Circuit recently but in fact, he said you all had done a good job in Mississippi a whole lot better than we are in Alabama and I think some of the -- some of it -- you were entitled to create some of it.

Mr. Wells and I rather appreciate it even though he wrote the dissent in this case.