GRIFFIN v. BRECKENRIDGE
A group of black Mississippi citizens filed for damages against two white Mississippi citizens pursuant to 42 U.S.C Section 1985 subsection 3 which protects against conspirators interfering with the civil rights of others. R.G. Grady, a citizen of Tennessee, was driving the plaintiffs in the suit along a public highway, when the defendants, acting under the misconception that Grady worked for the organization Civil Rights for Negroes, allegedly pulled their truck into the path of Grady’s car, causing him to stop. The defendants were accused of forcing Grady and his passengers to step out of the car and preventing their escape. According to the plaintiffs, the defendant James Calvin Breckenridge proceeded to beat Grady and the plaintiffs in the head with a club, injuring them. The defendants also threatened the plaintiffs verbally and pointed firearms at them. The United States District Court for the Southern District of Mississippi dismissed the plaintiffs’ complaint, basing their decision on a previous case, Collins v. Hardyman. This case limited section 1985 subsection 3 to apply only to conspiracies somehow related to state laws or state officials, to avoid possible conflict with the U.S. Constitution. The Court of Appeals agreed.
1) What is the scope and constitutionality, primarily with respect to section 2 of the Thirteenth Amendment in relation to section 1985 subsection 3? 2) Did the defendants of the civil suit disobey the statute?
Legal provision: Reconstruction Civil Rights Acts (42 USC 1985)
In a unanimous opinion authored by Justice Potter Stewart, the Court concluded that section 1985 subsection 3 covers conspiracy among private parties, uninvolved in official government business because three indicators pointed to that conclusion: the actual text of the law, the law in relation to the parent law upon which it was based, and the way in which the law had been interpreted in the past. The Court found that the conspirators must intend to deprive someone from a particular demographic group of equal rights to be in violation of section 1985 subsection 3. When these requirements are met, Congress can punish conspirators while acting in compliance with section 2 of the Thirteenth Amendment without the limitations of Collins v. Hardyman. Finally, the Court ruled that, in the civil suit, the defendants did conspire to commit the assault with the purpose of infringing on the plaintiffs’ legal rights because of their race. And, the plaintiffs suffered personal injuries as a result. Thus, the previous judgment is reversed.
Argument of Lawrence G. Wallace
Chief Justice Warren E. Burger: Mr. Wallace?
Mr. Lawrence G. Wallace: Thank you Mr. Chief Justice.
If it please the Court, I would like to take a somewhat indirect approach now to the statutory issue that I began to discuss yesterday.
And while this may seem a bit roundabout, I believe it will serve to help to clarify our position in this case.
And I'd like to start by reminding the Court of the terms of the statutory provision of the 1866 Act that was before it two terms ago, in Jones against Mayer & Company, it's now Section 1982 of Title 42 which reads "all citizens of the United States shall have the same right in every state and territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell hold and convey real and personal property" and a similar provision of the 1866 Act with respect entering into contracts and to suing and beast in being sued is now in Section 1981.
There is in the complaint to the present case, an allegation that's rather similar in its terms, at least in what we deem to be a crucial term and that is on page 6 of the appendix in paragraph 12, where there's an allegation that by this conspiracy, the defendants have willfully and maliciously intimidated and prevented the plaintiffs from enjoying and exercising, going down to the bottom of this paragraph, their rights to travel the public highways without restrained in the same terms as white citizens in Kemper County, Mississippi.
And I believe this similarity has some relevance because of the threat of continuity that runs through the adoption of all three of these amendments to the Constitution and through the whole serious of legislations through the 1866, 1870, and 1871 Acts and even the 1875 Act which is not involved here.
The overriding purpose behind all of these provisions and it colors the way they should be read and interpreted as this Court has said many times, was to achieve a meaningful emancipation for the former slaves in various aspects of community life.
This was certainly a purpose to be achieved in 1870 legislation and when Congress was made aware that the activities of the Ku Klux Klan and other private conspirators were interfering with the achievements of this objective, Congress went on in 1871 to enact the legislation that’s now before us and that this Court is to asked to interpret in this case.
The first section of that legislation is now Section 1983 of Title 42 and that is quoted on page 10 of our brief, our grey covered brief in this case.
That provided that every person who under color of any statute or ordinance, regulation, customer usage of any state or territory, under color of law, subjects or causes to be subjected, any citizens of the United States or other person within the jurisdiction thereof to deprivation of any rights, privileges or immunities secured by the Constitution and laws is liable to a suit for damages.
Now that covered liability by public officials who acting under color of law have deprived complainants of rights including -- of rights under fourth -- under the Constitution including Fourteenth Amendment rights.
This Court has several times held that the statues applies to Fourteenth Amendment rights, as well to other rights in Screws against United States, Monroe against Pape, and so forth.
That was not, as this Court noted last term in its opinion in Hedequist against Crest Co, that was not the most controversial provision of 1871 legislation.
It was Section 2 in which Congress went on to reach at least in terms, actions that are not taken under color of law that provoked the controversy.
And before proceeding to Section 2, I want to say one other thing about the Section 1983.
Not only did it reach actions by public officials and make them subject to suit for damages, it also extended, it has been held a number of times to actions by private persons taken in concert with public officials.
Those two are actions taken under color of law as this Court held with respect to the comparable criminal provision in the United States against Price, and a number of Court Of Appeals cases have held the same thing with respect to 1983 and a footnote in the Price opinion indicates that this is an accurate analysis.
So, with this in mind as what was accomplished in Section 1 of the legislation, I think we can turn to an analysis of what did Section 2 of the same law add.
Now, Section 2 is insofar as we're concern with it, the civil part of Section 2 is now the provision before us, Section 1985 (3) of Title 42, it's set forth in full on page 2 of our brief, but I think for purposes of our discussion, it will be more convenient to refer to the page 7 of our brief in which we have quoted from the Collins opinion.
This Court's adumbration of the various provisions with numbering added to it that are covered in 1985 (3) and here is where the Congress gave attention to activities of private conspirators and attempted to provide redress in order to, as I said the outset, achieve the meaningful emancipation that was the overriding objective.
One of the things that the Congress provided redress for where conspiracies by two or more persons in the part number 2 here on page 7 to prevent or hinder the constituted authorities from giving or securing to all persons, the equal protection of the laws.
Interference with public officials, even though it not be conspiratorial, not be taken on concert, that is conspiratorial with the public officials, even though it not be taken in concert with the public officials, interference with there providing of equal protection is covered by that part of 1985 (3).
Interference in concert is already covered in Section 1 of the Act as I said and then the part numbered 3 and 4 provides specific protections against conspiracies, to interfere with voting in federal elections and campaigning in federal elections.
Now, the question remaining and the key question in this case is what does the first part add to these provisions?
What further meaning is there in the first part of 1985 (3) are approach to any statue as that each part must mean something and not be merely redundant of what is enacted right along with it?
How can two or more private persons conspire without in someway acting under the color of law or in concert with public officials so as to deprive any person or class persons of equal protection of the laws or of equal privileges and immunities under the laws?
They don't have the authority to do that.
That is the conceptual difficulty with trying to attribute a meaning to this part of the statute that goes beyond what Congress had already done.
In some ways, it's very similar to the difficulty that three justices of the court in Screws against the United States and Mr. Justice Frankfurter in Monroe against Pape had with the question of how can a state officials, acting contrary to state law, be depriving an individual of rights that the states guarantees him?
It's a rather similar conceptual difficulty, and indeed, the answer which this Court gave in the Collins opinion is very similar to the answer to that other question which was given in the dissenting opinion in Screws against United States and in the dissenting opinion Monroe against Pape.
The answer, the key language of the answer can be found on page 8 of our brief, the very next page.
In the middle of the page in the paragraph set forth on the middle page, the second sentence of that paragraph points out that the negative answer of the Collins opinion said that unless the law or it's agencies were to give sanction or sanctuary to private conduct, the victims rights, this is quoting from Collins, the victims rights under the laws and to protection of the laws remain untouched and equal to the rights of every other person within the state.
And that is why the Collins opinion in effect reads this part of 1985 (3) as merely redundant of 1983, is really accomplishing the same thing.
But if we look back at the language of the statute again, the statute doesn't say that the wrong as to deprive someone as Collins said of the rights to equal protection under the laws, that's not what the statute says.
The statutes says “Conspiracy to deprive them of equal protection of the reality; not the right.”
As Mr. Justice Brennan pointed out in his opinion in Hedequist , the only way to deprive someone of the right to equal protection of the laws will be to repeal the Fourteenth Amendment.
That couldn't be what Congress had in my mind.
No private persons could accomplish that.
So the question in our mind becomes what it that private persons conspiring together can do that would deprive someone of the meaningful enjoyment of these guarantees that the Constitution had added as against the states, besides interfering with the conduct of public officials which covered in the second part here.
What is it besides that that private persons can do that would interfere with the enjoyment of these rights?
Well, one fairly obvious thing to refer to a problem that is again before this Court is term would be, if there were a school desegregation order and private persons conspire together to prevent children because of their race from attending a particular school, intercepted them and prevented them from getting there.
That would not be action taken under color of law, it would not be action taken in concert with public officials, and it seems to us that it would be a deprivation of enjoyment of the right to equal protection of the laws.
Chief Justice Warren E. Burger: There are many ways of getting it back, aren’t there?
Any other ways than relying on a statute of this kind to reach the hypothetical you just suggested?
Mr. Lawrence G. Wallace: There undoubtedly are, but Congress was concerned in enacting this very statute that other ways that might be available, other legal remedies such as remedies in the states might not prove effective to protect the rights that they were trying to confer.
Chief Justice Warren E. Burger: Well, I'm speaking federal.
Aren't there many other federal remedies for the hypothetical?
Mr. Lawrence G. Wallace: Well, there would be remedies connected with the court order if the desegregation were being accomplished under a court order.
Chief Justice Warren E. Burger: [Voice Overlap] federal statue about obstructing justice?
Mr. Lawrence G. Wallace: There would be the possibility of a federal statue.
I am not sure however that if all that were involved were a plan voluntary adopted by the school board to comply with the law of the land, school board not under court order, that any federal statute about obstructing justice would be applicable.
Chief Justice Warren E. Burger: When your hypothetical is altered a little bit now?
Mr. Lawrence G. Wallace: Well, in response to your question, but it seems to me, it would still be within the coverage of this provision.
The concern of Congress was with the possibility that the rights would not be enjoyed because private persons would prevent their enjoyment.
As matter of fact, there is very specific referenced to this in a legislative history of the amendment adding the word equal which Mr. Pollak spoke about yesterday.
I'd like to refer the Court to that history.
These are the remarks by Representative Garfield, later, the President of the United States in support of this amendment and in support of the provision that then was enacted as a consequence of this amendment.
And this appears -- this is not quoted in a briefs unfortunately, it appears on page 153 of the congressional globe for the 42nd Congress, first session.
These remarks incidentally were cited, although this particular one’s were not quoted in Mr. Justice Brennan's opinion in Hedequist.
Mr. Garfield, Representative Garfield said there in support of the amendment and I quote now, "to state the case is the most moderate terms, it appears that some of the southern states, there exists a wide spread secret organization whose members are bound together by solemn oath to prevent certain classes of citizens, certain classes of citizens of the United States from enjoying their new rights.
These new rights conferred upon them by the Constitution and laws and they are putting into execution their design of preventing such citizens from enjoying the free right of the ballot box and other privileges and immunities of citizens and from enjoying the equal protection of the laws."
Justice John M. Harlan: Is that immunity statutory?
Do you take -- what do you conceive to be the additional source of power to stand on that statute?
Mr. Lawrence G. Wallace: Well, we argue in our brief that as applied here, the Thirteenth Amendment is applicable to this application, and that the Fourteenth Amendment, the enforcement provision of both of those amendments, it would be the relevant provisions.
If I may Mr. Justice, I'd like get to that in just moment after I finish this statutory analysis and it's applicability to this case as we see it.
Given that much meaning of the statue, we say that even that applies here because the allegation is of a terroristic, coercive interference with the use of public highways, that is exactly what happened here.
In fact, it's not terribly different from some of the activities of the Klan during the period in which Congress was enacting this legislation.
We think really that the right should probably be formulated in more basic terms than that.
We don't think it would really make a difference in this case if the interception had occurred on a private driveway rather than on the public road.
As this Court noted Jones against Mayer Co., one of the rights that Congress was concerned to accomplished through the adoption of the Thirteenth Amendment in 1866 legislation and we say there is threat of continuity running through here was to see to it that the newly emancipated Negroes would have, in Senator Trumble's words that were – and they are quoted, "freedom to go and come at pleasure."
And certainly, the kind of freedom to go and come for this class of persons that would be upheld for white persons, for the ordinary persons in the community is of the essence of a accomplishing a meaningful emancipation, changing people's status from a subjugated status to a free status.
And this why it seems to us that what Congress was trying to do was to protect persons from private conspiracies directed against them because of their membership in a class, because of their race or other comparable membership in a class directed toward keeping them in an inferior status, preventing them from enjoying these rights in the public sectors, as we say in our brief, that others in the community have the right under the Thirteenth and Fourteenth Amendments against the state to enjoy.
Now, it seems to us that the Court’s opinion in Jones, practically points the way to the application of the Thirteenth Amendment to sustain the statute to get back to Mr. Justice Harlan’s question.
Justice Potter Stewart: As a source of congressional power?
Mr. Lawrence G. Wallace: As a source of congressional power.
Justice Potter Stewart: Of course, the difference is that in Jones, there was a explicit language about buying and selling property real in person?
Mr. Lawrence G. Wallace: Now, that's why I thought our problem -- real problem here was --
Justice Potter Stewart: Was with the statute?
Mr. Lawrence G. Wallace: Was with the statute and I think this is what statute must have meant, and then, this kind of application seems to us is sustained there by the constitutional analysis in Jones.
And we see no problems with upholding this application without reaching the question of other possible applications.
After all, this is not criminal statute where we need worry as much about notice from a restricted reading of it and it seems to me that the principles of the United States against Raines applies sort of a fortiori with civil statute of this kind.
Justice Potter Stewart: My only difficulty because I have many in this case, with the statutory language.
It's certain difficult for me at first blush at least to see how it covers this case where the facts were that two brothers who were in the wild race crashed their car into another car and beat up the five occupants of the other car.
Now, without mistaken -- mistaken belief that one of the five was the civil --
Mr. Lawrence G. Wallace: But with purposes alleged here, with purposes alleged, it's not an allegation of a mere assault.
It's allegation of the assault was to prevent these persons because of their race from enjoying the same right to use public highways, to go and come as they please as white citizens of this county.
That was the reason for the assault, that coercion has being applied to them, to keep them in [Voice Overlap] subjugated status.
That, it seems to us --
Justice Potter Stewart: Whenever two white men beat up a Negro man a suit under the statute could be brought, if they beat them up because were Negroes, is that right?
Mr. Lawrence G. Wallace: Well, we do say in our brief that this purpose to keep in an inferior status probably can be inferred in most such instances where that's the intent, but here where there is no more intent than that shown, but here there is more intent than that shown.
Justice Potter Stewart: Alleged, alleged?
Mr. Lawrence G. Wallace: Alleged, yes.
Well that's the allegation after the acceptance.
Justice Potter Stewart: And now, what is the more, what's the more?
Mr. Lawrence G. Wallace: The more is they were not to have the rights that white person have to --
Justice Potter Stewart: Well, this is true --
Mr. Lawrence G. Wallace: To go and come.
Justice Potter Stewart: Well, this is true when two or more white men beat up one or more Negro men because they are Negroes?
Mr. Lawrence G. Wallace: If there's no -- if there's no personal reason --
Justice Potter Stewart: -- and obviously, they're not going to be able to walk down the street?
Mr. Lawrence G. Wallace: If there's no personal reason for what is done, if it's done only --
Justice Potter Stewart: Because they are Negroes --
Mr. Lawrence G. Wallace: -- because they are fair game, because they are inferior human beings, well, then it seems to me that that is what Congress was trying to --
Justice Potter Stewart: Do you think that's covered by language of the statute, do you?
You obviously do or you --
Mr. Lawrence G. Wallace: We do.
It's difficult for us to see what else this language means in the context as I built it.
Justice Potter Stewart: You gave us one good example of what it might mean and that is keeping Negro children away from desegregated public school.
Mr. Lawrence G. Wallace: Well, that would be a possibility, but there is a use of the state facilities here.
They have the right the equal use of the states highways; it's not on these facts a really different case in our view.
Justice Potter Stewart: Well, that's this vis-a-vis the state under the Fourteenth Amendment.
The Fourteenth Amendment --
Mr. Lawrence G. Wallace: So ended in the school.
Justice Potter Stewart: -- only upon the state, you would agree with that, wouldn't you?
Mr. Lawrence G. Wallace: That's the right to attend the public schools.
Justice Potter Stewart: Well, that's against the state?
Mr. Lawrence G. Wallace: That's right.
To us, it's -- it really is the same case.
Justice Potter Stewart: Well, except that when you have a court order which you hypothesized?
Mr. Lawrence G. Wallace: Well -- but I would hypothesize the case where there is no court order.
The school board has voluntary adopted a desegregation plan, and conspirators keep the Negro children from attending --
Justice Potter Stewart: Well, I should agree that might be covered by the statute, but we're talking what's your case?
Mr. Lawrence G. Wallace: Well, I don't see the distinction.
The rights are against the state in both cases.
In both cases, the use of the state facilities are being interfered with by conspiracy and it is because of the class discrimination.
It is because of a desire to keep a former slave race in a subjugated state.
Chief Justice Warren E. Burger: Let me suggest a hypothetical that takes us away from immediate context for a minute and see if sheds any light for me on problem.
Suppose in some community, a new church was started, a church that was found offensive to great many of people living there and they -- in one way or another by picketing, by threats, intimidation banded together, more than three of them to prevent the worshipers of that group, I mean, nothing to do with Negro and White problems, to prevent the worshipers of that new unpopular sect from exercising their right to free exercise of religion.
Would you think that would be covered by the statute?
Mr. Lawrence G. Wallace: That hypothetical Mr. Chief Justice is to me indistinguishable from the facts of Collins against Hardyman, which also involved a First Amendment right assembly in order to oppose the marshal plan, a political group and there, I think the statutory language as we read it would be applicable, but we would no longer be able to draw upon the Thirteenth Amendment as the source of the congressional authority and we have to rely exclusively on the Fourteenth Amendment.
Now, I think the Fourteenth Amendment does provide assistance in this case and is a basis for authority.
Six justices in the Guest case said that the Fourteenth Amendment will support federal legislation, punishing all conspiracies with or without state action that interfere with Fourteenth Amendment rights, that interfere with Fourteenth Amendment right.
And I don’t think that that principle means that Congress thereby is empowered to reach every possible tort or crime under state law.
The formulation itself indicates a limitation on its applicability.
It's inference with the rights that the Fourteenth Amendment protects against the states.
We're not dealing here in an area where a state has, pursuant to some neutral principle, relegated decision making to private persons which is the kind of thing that court was concerned with in the civil rights cases.
This is not that kind of area.
It's not freedom to come and go in somebody else's place.
It's freedom to come and go on the public thorough fares, and we are dealing with class discriminations with the new right that was established in the Fourteenth Amendment, the right to equality that the sponsors of the amendment and the sponsors of the legislation thought because of its newness would need special federal nurture and federal protection.
Chief Justice Warren E. Burger: Would you agree Mr. Wallace that had this case, this case gone to trial or one might, that there is a certain obligation on the plaintiff to prove the existence of a conspiracy than just conduct --
Mr. Lawrence G. Wallace: That's right, that's alleged.
Chief Justice Warren E. Burger: Now presumably, if the legislation took the course of most conspiracy based cases, it would have to call on the defendants for testimony.
Suppose these defendants just decline to testify on Fifth Amendment grounds and no other testimony about a conspiracy was forthcoming except such as the plaintiffs might offer by way of their own conclusions?
That would probably would you agree that that will lead to a directed verdict very likely?
Mr. Lawrence G. Wallace: Well, I think with conspiracy can be proved by proof of certain conduct and the inferences that should be drawn from the conduct and I don't think --
Chief Justice Warren E. Burger: Would you think when two men attack two other men or one other that your conduct alone would establish a case --
Mr. Lawrence G. Wallace: Well, this wasn't a mere attack Mr. Chief Justice.
This was interception of the car.
They cut off this car on the public highway and proceeded at gun point to remove these people from the car and attack them.
Chief Justice Warren E. Burger: But that means it would be equally direct towards establishing some other, some criminal conduct, wouldn't it, a state criminal conduct?
Mr. Lawrence G. Wallace: Well, there maybe more reason to read conspiracy laws more narrowly when criminal sanctions are involved.
Here, we have a effort by Congress to provide civil redress for interference with the enjoyment of rights that Congress was trying to confer upon these people and it's apparently that damage was done through concerted action which at least the trier of fact could infer involved some conspiratorial design between the actors.
I don't see why a civil statute should be read more strictly than that.
The object was to provide redress for damages and damages were done here.
Chief Justice Warren E. Burger: When I was getting out in part at least was that you probably could have the cases where enormous damages could be shown, but the case might fail because of want of evidence of the conspiracy.
Mr. Lawrence G. Wallace: Well perhaps so Mr. Chief Justice, that isn't this case.
Chief Justice Warren E. Burger: That might either by the action of the triers or it might be by action of the court?
I just want to separate the proof of the conspiracy from the proof of the damages.
Mr. Lawrence G. Wallace: That's proper Your Honor.
Chief Justice Warren E. Burger: Thank you Mr. Wallace.
Argument of W. D. Moore
Mr. W. D. Moore: Mr. Chief Justice and may it please the Court.
It is alleged that on July 2, 1966 which happened to be a Sunday afternoon, the claimants in this cause were traveling down a public road and they were intercepted by the respondents in this cause and the confrontations occurred, whereby this alleged that an assault was made and some physical damages down to the petitioners.
And as a result from that, the petitioners filed their suit in the state court of Kemper County, Mississippi.
That case is still pending.
It hasn't been tried, but anyways on the dockets still pending.
They also filed a complaint in the Eastern Division of the Southern Districts of Mississippi federal jurisdiction, and the cause came on to be heard upon the motion of the respondents to dismiss the case because the declaration had wholly failed to state a cause of action in that did not allege an action under color of law.
The decision of the district judge was appealed to the Fifth Circuit of the fifth district and the circuit court affirmed the ruling of the district judge, holding that there had been no action to alleged damages committed under the color of law, and then the case was appealed to this body and we here today for that.
Justice John M. Harlan: Will you keep your voice up a little please here?
Mr. W. D. Moore: Thank you, Mr. Justice.
The only issue as I see it to be determined by this Court is further the lower court was correct in affirming and dismissing the cause of action because it failed to state that the alleged acts were committed under the color of law.
Now, this Court has settled the matter in my opinion in Collins versus Hardyman and some of the members of this Court was here from the case was recited.
What we have allegedly is that these people were grievously treated if the allegations of the complaint are correct and that their rights would be violated, but it is the opinion of the court in the Collins versus Hardyman --
Chief Justice Warren E. Burger: When you say their rights would be violated, you mean the rights under the statute?
Mr. W. D. Moore: Their individual rights; not the rights under the law.
Justice Potter Stewart: But in order to have rights it seems to me, it has to be under the law.
That's what rights and obligations are all about --
Mr. W. D. Moore: I think Mr. Justice that I'm speaking of the equality of the right under the law.
Justice Potter Stewart: I thought you're talking about right under Tort law in Mississippi?
Mr. W. D. Moore: No sir -- I didn't express myself correctly.
I was reading -- trying to read from Collins versus Hardyman.
Chief Justice Warren E. Burger: Well Mr. Moore, assuming for the moment that the allegations of this complaint wherein a complaint in an action in the state court with all other jurisdictions unquestioned, would there be any doubt if they had asserted a tort action against the defendants if the allegations are correct and they can support --
Mr. W. D. Moore: Under the state?
I believe Mr. Chief justice that it would state a tort action --
Chief Justice Warren E. Burger: There couldn't be much question about that, could there?
Mr. W. D. Moore: No sir.
Well, as matter of fact as I said before, they have done that.
There is a case arising out of the alleged facts in this -- in the state court.
Chief Justice Warren E. Burger: But that hasn't been tried yet?
Mr. W. D. Moore: No sir.
It was filed shortly after the alleged incident occurred and for this reason, I don't know why it hadn't been tried, but it had the still on the docket.
Now, in their case in the state court, I think they state a cause of action.
But what this Court is concerned with and what my own understanding is that if the acts were taken to be true, their rights were certainly invaded, disregarded and the law violated.
But neither then rise, nor the equality arise under the law had been or were intended to be denied or unpaid.
Now, that's position of the respondents in this matter.
Now, reference has been made to Guest case and the Prize case and they were criminal cases and indictment was obtained.
And among the other things in the indictment, it was charged that they committed these acts on the color of law and I don't think that that would be applicable to our case here.
Justice Potter Stewart: In the Guest case there, it was two branches, I'm talking now about the opinion of the court, not concurring opinions.
One branch of it was that there was a officially a state action.
Mr. W. D. Moore: Yes sir.
Justice Potter Stewart: But quite a separate and distinct second branch of the case was that there was private action interfering with a right that Congress had the constitutional power to protect; that was the right of interstate travel.
Do you remember, have you read the Guest case --
Mr. W. D. Moore: Yes, yes sir.
That would be correct.
Justice Potter Stewart: And as to that second branch, it was explicitly, perhaps not clearly held, but explicitly held that there need not be state involvement when the federal right interfered with is the right of interstate travel because that is a right that does not derive necessarily from the Fourteenth Amendment.
That's the right that Congress can protect against interference by private action.
Mr. W. D. Moore: Yes sir.
Justice Potter Stewart: So to that extend, the opinion of the court in Guest doesn't require color of law or state involvement in any way when the federal right interfered with is the right of interstate travel, I'm I correct?
Mr. W. D. Moore: That’s my understanding sir, yes sir.
Justice Potter Stewart: There's an allegation here about traveling freely down the Interstate Highway isn’t there?
Mr. W. D. Moore: I don’t know where they used the word interstate, did not.
It said on the local --
Justice Thurgood Marshall: So, page 6 paragraphs 12, right to travel public highways -- it's on page 6 of the appendix.
Mr. W. D. Moore: Yes, I don't have that before me right now.
Justice Potter Stewart: And of course the Guest case which perhaps for the first time made it explicit that the right of interstate travel was a right that Congress had the power to protect not only against state interference, but also against private interference.
That holding that it was in the Guest case which came after Collins against Hardyman didn't it?
Mr. W. D. Moore: Yes sir.
Justice Potter Stewart: I wonder if you think that has any significance or that -- since that was the right that which had not been crystallized or made clear to time of the decision on Collins against Hardyman?
Mr. W. D. Moore: Well, I just don't be frankly to Mr. Justice Brennan -- I mean Mr. Justice Stewart -- I don't know that we have place the defense in the case of Collins, and we believe that it's a landmark case that the issue has been tried in settled by this Court.
Unless there's some further questions Mr. Chief Justice, we rest our case on Collins versus Hardyman.
Chief Justice Warren E. Burger: Thank you Mr. Moore.
Thank you Mr. Wallace, Mr. Pollak.
The case is submitted.