Congress of Racial Equality v. Douglas

318 F.2d 95

Opinions

TUTTLE, Chief Judge.

This is an appeal from a preliminary injunction obtained by the Mayor, acting individually and as Mayor of the City of McComb City, Mississippi, and Mr. and Mrs. Aubrey McGehee, the owners of a restaurant in a Greyhound Bus Station against CORE forbidding the defendant from sponsoring, encouraging or financing persons to utilize the terminal facilities in the City of McComb City, Mississippi, “for the purpose of fomenting violence or provoking breaches of the peace in or near said terminal facilities; or for such purpose after having publicized their purposes and intentions to so utilize or misuse such facilities; or for the purpose of creating or securing unto themselves notoriety and publicity, as the sponsoring organization of such fomentation and provocation; or for the purpose of testing the tempers and reactions of the local citizens of the said City in the absence of local police protection.”

Jurisdiction was vested in the district court by way of 28 U.S.C. § 1332, diversity of citizenship, the Congress of Racial Equality being incorporated in the state of New York, and all plaintiffs being citizens of the state of Mississippi.

On Monday, November 27, 1961, a preliminary injunction was issued by a statutory three-judge court in the Southern District of Mississippi generally enjoining McComb City and its officials from interfering in any way with compliance by the Greyhound Corporation with the laws of the United States and the regulations of the Interstate Commerce Commission prohibiting racial discrimination in interstate commerce facilities. 6 Race Relations Law Reporter 1169.

All of the evidence in this case comes from the testimony of the witnesses for the plaintiffs, including a member of CORE, on direct and cross examination, the defendants not filing responsive pleadings other than motions to dismiss nor offering any of its own witnesses.

Since this is an appeal from a preliminary injunction, and not a final ruling after full hearing on the merits, we must review the district court’s injunction on the narrow question of whether that court abused qr improvidently exercised its discretion. Alabama v. United States, 279 U.S. 229, 230, 49 S.Ct. 266, 73 L.Ed. 675 (1929); Weiner v. National Tinsel Manufacturing Co., 123 F.2d 96 (7th Cir., 1941). Unless the plaintiffs make out a prima facie case, a preliminary injunction should not issue. W. A. Mack, Inc. v. General Motors, Inc., 260 F.2d 886 (7th Cir. 1958). An injunction should only be used when it is clear that the question presented by the litigant who seeks the injunction is free from doubt. See Consolidated Canal Co. v. Mesa Canal Co., 177 U.S. 296, 302, 20 S.Ct. 628, 44 L.Ed. 777 (1900); St. Louis Street Flushing Machine Co. v. Sanitary Street Flushing Machine Co., 161 F. 725, 728 (8th Cir. 1908). Furthermore, there must be a balancing of the conveniences and rights of the parties and a balancing of the possible injuries to them according to how they may be affected by the granting or withholding of the injunction. Meccano, Ltd., v. John Wanamaker, New York, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822 (1920).

The complaint,¹ the tenor of which is conveyed by the language of the preliminary injunction, stated above, claims that such “incidents of violence” which were done in order “to foment violence and to provoke breaches of the peace in and around terminals and facilities” have caused “great injury and damage” to the plaintiffs.

We will examine the evidence, including the inferences to be drawn therefrom, in the light most favorable to the appellees, the winning parties below, in order to determine if the rights of the plaintiffs are clear so that this court in reviewing the issuance of the preliminary injunction of the district judge could not say that the district judge abused his discretion.

The testimony discloses the following events; On Tuesday, the day following the issuance of the order of the United States District Court desegregating the terminal facilities of McComb, certain officials of McComb learned that Negro members of CORE were coming from New Orleans to McComb on Wednesday, the next day, in order to use McComb's bus terminal facilities.³ The members arrived by bus from New Orleans Wednesday morning, as scheduled, but they found the bus terminal closed because of a “gas leak.” Their arrival had been announced by various news media, and small groups of whites and Negroes, as well as a few members of the press, were on hand to “greet” the travelers. They arrived at and departed the closed terminal without incident. Members of the MeComb police force were present that morning. That afternoon the same CORE members returned to the terminal, but when they got there none of the MeComb police force had yet arrived.⁴ The crowd was larger this time. A photographer was reported to have been beaten up at or near the terminal by members of the white throng. The number of persons “greeting” the travelers was never determined, but it was clear that the CORE groups never numbered over five. The CORE party went into that part of the terminal restaurant, which was formerly only for whites, and asked to be served. The proprietor, who first told them to go to the other part of the waiting room to be served by a woman of their color, testified that they demanded service and that one of them beat on the counter and said “Why in the hell can’t we get service in here.” He further testified that violence broke out, although he said he did not know where it came from. One of McComb’s Selectmen, a Mr. Gordon, testified that he saw disturbances on Wednesday, but he too could not be specific. He said there were no breaches of the peace, and no refusal by the MeComb citizens to obey the police officers, once they got there, although he said the Negroes were “ejected” from the waiting room. He said the Negroes always behaved in an appropriate manner.

Another visit by these CORE members was planned for Friday. The newspapers carried the story on Thursday. Large crowds were again there to meet them, as well as the police force being on hand. They arrived as scheduled and used the terminal facilities without incident. The MeComb Chief of Police testified that to his knowledge the CORE members did not behave in a boisterous manner.

On Saturday another visit was scheduled and again there were some greeters at the terminal site, this time not as many as on the previous visits. The reporters and police officers were also on hand. A police officer, Smith, testified that the CORE members behaved “in a reasonably quiet manner,” and that the police had the situation under control Friday and Saturday, but that they were needed there to keep order. There were two reported incidents of disturbance on Saturday. A local member of CORE stated that he was struck several times by some person in the terminal; and the other was that two or three of the members of the crowd struck the local CORE official’s car, but this stopped at the command of one of the police officers.

It was clear that the rides were publicized, but there is little evidence to indicate how the press got hold of the planned trips. One of the local CORE officials said that he knew of no planned publicity. The city officials originally learned on Tuesday of the first trip from an agent of the F.B.I., although how the latter learned is not disclosed. There is no evidence that CORE itself held press conferences to make public statements about the timing of planned rides.

From the three visits on Wednesday, Friday and Saturday, and the above described events, the testimony was that the city was affected in the following manner: Selectman Gordon: “The people of the city were obviously greatly disturbed. They were reluctant to go about their ordinary business. The situation was extremely tense, explosive.” But he said the situation got better after Judge Mize’s temporary restraining order. The proprietor of the restaurant said he had to close down his restaurant because of the tense situation, although Negroes have used the terminal facilities peacefully and without incident since the CORE visits.

The evidence relative to the conduct of the CORE members was almost entirely favorable. They behaved in an “appropriate manner,” never “antagonistic,” never “boisterous,” and in “a reasonably quiet manner” according to the testimony of three of the plaintiff’s witnesses. Only the proprietor of the restaurant said one CORE member demanded service in a loud manner and beat on the counter. The only incidents of malevolent behavior came from the white crowd milling around the terminal. The police officers testified that the crowds obeyed their orders at' all times and that they had the situation under control on Friday and Saturday.

The district court found that the CORE members publicized their arrival, and that this was a “widely advertised challenge to the entire communitythat this was with the avowed purpose of testing and provoking the tempers of the community, and to incite disturbances and violence upon themselves, and to taunt and tantalize the community. The court found that their acts were done to provoke others to attack them and to commit breaches of the peace; that these acts were done only for the purpose of disturbing the domestic tranquility of the community for the financial gain of the defendants. The court then concluded that the right of the Negroes to freely use the terminal was not at issue. But that right “to use and enjoy these facilities carries with it a corresponding duty to behave themselves while doing so. Even the well-recognized constitutional right of free speech does not accord an irresponsible person the right to wrongfully holler ‘Fire’ in a crowded theatre.”

We find upon a close study of all the testimony that the record is completely barren of any evidence of an intent by CORE to provoke breaches of the peace, to incite violence, to disturb the domestic tranquility for CORE’S own financial gain, to bring violence upon themselves, or to taunt and tantalize the community. In fact, with the exception of the one incident of demanding service by beating on the counter, the testimony disclosed that the Negroes acted in no way hostile, violent or provoking. At all times they behaved in an orderly fashion. Furthermore, there is absolutely no evidence that CORE “widely advertised” its goings and comings. In any event, regardless of what the findings were with respect to the publicity, it is clear that, whatever part of the injunction is based on “advertising” of the comings and goings of CORE, the injunction must be struck down. The publicity, even if provided originally by CORE, could only be said to be a part of their peaceful efforts to demonstrate. Any violence from the local citizenry which comes from this can only be said to be based on the offensiveness to them of CORE’S intention to use McComb’s facilities on an integrated basis, and their right to publicize their intentions is no less protected than their carrying them out.

Of course, no court may enjoin conduct which is neither threatened nor imminent. Since there was absolutely no proof that the respondent threatened to do anything “for the purpose of fomenting violence or provoking breaches of the peace,” or “for such purpose after having publicized their purposes and intentions to so utilize or misuse such facilities; or for the purpose of creating or securing unto themselves notoriety and publicity, as the sponsoring organization of such fomentation and provocation,” the fact that the court issued its injunction in these terms must amount to a determination by it that the acts proven to have been threatened justified the issuance of the injunction. The record is clear that the acts proven to have been threatened constituted nothing more than a purpose by CORE to continue to test the previously segregated facilities of the bus station in a peaceful manner.

The Supreme Court has recently spoken in a case which clearly controls the one here before us. In Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697, the Court reversed the Supreme Court of South Carolina’s upholding of the convictions of the common law crime of breach of the peace of 187 Negro students who marched on the South Carolina State House grounds “to submit a protest to the citizens of South Carolina * * * our feelings and our dissatisfaction with the present conditions of discriminatory actions against Negroes, in general, and to let them know that we were dissatisfied and that we would like for the laws which prohibited Negro privileges in this State to be removed.” The Negroes marched in small groups through the State Capitol, each group bearing placards of protest, such as “I am proud to be a Negro,” and “Down with segregation.” The Negroes were warned by the waiting police officers that they would be arrested if they did not disperse within 15 minutes of the order.⁵ Instead of dispersing they sang, clapped their hands and stamped their feet, and listened to a “religious harangue” by one of their leaders. There was testimony that “a dangerous situation was building up” and there was an “imminently threatened disturbance of the peace of the community.” A large crowd of white persons had gathered, estimated to be about 300, which had begun to impede vehicular and pedestrian traffic.

In spite of the testimony that the city officials felt that the mob had reached a “fever pitch” and that the demonstrations “tended directly to immediate violence,” the Court, upon an “independent examination of the whole record,” found that the petitioners had “peaceably expressed their grievances” and “peaceably assembled,”⁶ and that “South Carolina [had] infringed the petitioners’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.” See also Fields v. South Carolina, 372 U.S. 522, 83 S.Ct. 887, 9 L.Ed.2d 965.

Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267, is the case heavily relied on by South Carolina in the Edwards case and appellees in the ease at bar. We find that the facts of this case fit squarely within the factual bounds of the Edwards case and fall outside the allowable limitations on First Amendment rights as evidenced in the Feiner case.

These cases, and similar others, involve a balancing of First Amendment— Fourteenth Amendment rights⁷ with “the power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents.” Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745 84 L.Ed. 1093 (1940). “It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.” Feiner v. New York, supra at 321 of 340 U.S., at 306 of 71 S.Ct. The Court there upheld the conviction of Feiner for breach of the peace for attempting to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights. The outstanding difference between this and the Edwards case on the one hand and the Feiner case on the other is that the element in the latter case of the defendant’s purpose and attempts to incite, and near success thereto, was totally lacking in this and the Edwards case.

In view of the facts and circumstances in this ease the language of the Supreme Court in Terminello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131, is appropriate:

“Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettled effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, * * is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”

The posture of this case in particular is even more favorable to the defendants than was the Edwards case to the defendants therein, in that an injunction is involved here which prohibits the exercise of constitutionally guaranteed rights. It is a prior restraint. As the Court said in Kunz v. New York, 340 U.S. 290, 295, 71 S.Ct. 312, 315, 95 L.Ed. 280, “We are here concerned with suppression — not punishment,” and so are we here in this case. Although the protection against previous restraints on the liberties guaranteed by the First Amendment is not unlimited, it takes on an even more guarded protection than punishment after the exercise thereof. See Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Kunz v. New York, supra; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1433; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. We find that the injunction below is an unconstitutional abridgement of the First Amendment rights, as protected by the Fourteenth Amendment, as a prior restraint on the freedom of speech.

There was no “clear and present danger” ⁸ in the case at bar as there was in Feiner v. New York, supra. The testimony of both the Chief of Police and one of his officers was that at all times they had the crowd under control. The discontent and unrest of the local populace resulting from the unpopularity of racial integration or the offensiveness to them of Negroes organized in a movement to test out the segregation in the bus terminal, are no grounds to prohibit what otherwise would be a constitutionally guaranteed right and freedom, especially in the manner in which the defendants conducted themselves. “A State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.” Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905.

Nor can it be said that the injunction should stand since it does not prohibit the peaceful use of the terminal but only that use for the purpose of “fomenting violence” in MeComb, for the injunction must rest on the record made in the case; and we have already held, supra, that the findings of fact by the district court dealing with an intent to foment violence are clearly erroneous and are unsupported by any evidence. The injunction, if allowed to stand, would amount to a complete deterrent to the members of ^ORE to demonstrate peacefully against the segregation policies of the City of MeComb. CORE and other organizations, organized for the purpose of peacefully demonstrating and speaking against unconstitutional state and local laws enforcing segregation, would then find themselves virtually inarticulate. These fundamental rights to speak, assemble, seek redress of grievances and demonstrate peacefully in pursuance thereto cannot be abridged merely because a riot might be threatened to be staged or that the police officers are afraid that breaches of the peace will occur if these rights are exercised.⁹

The grant of the preliminary injunction was a clear abuse of the discretion of the trial court. The case is therefore remanded with directions to the trial court to vacate and set aside the preliminary injunction.

Judgment is reversed.

1 . The pertinent parts of the complaint are here set out for easy reference:

“II

“The defendant, Congress of Racial Equality and others associated with them are sponsoring, financing and encouraging John Doe and ¡Mary Doe and others to come into the City of McComb City, after publicizing their intention so to do, in order to foment violence and to provoke breaches of the peace in and around the terminals and facilities used in McComb City for the transportation of passengers, mail and baggage into, through and from the City of McComb City.

“Ill

“This agitation on the part of John Doe and Mary Doe and others has provoked incidents of violence at the Greyhound Corporation bus terminal in McComb City and was calculated to, did and will continue to provoke future incidents of violence in and around said bus terminal, which said incidents of violence have re-suited in great injury and damage to plaintiffs and each of them, and to the City of McComb City, which said damages are in excess of §10,000.00 in amount, exclusive of interest or costs, and are immediate and irreparable.

“IV

“Under and pursuant to a prior order of this court in the case of U.S.A. v. Mayor and Selectmen of McComb City, et al., being Civil Action No. 3215, the police officials and other officials of the City of McComb City have been enjoined from acts which might be construed as interference in any way or by any means with the conduct of the Greyhound Corporation and any and all other persons operating or using said terminals and facilities used in interstate commerce, a true copy of which injunction is attached hereto as Exhibit ‘A’.

“V

“The plaintiffs, Mr. and Mrs. Aubrey McGehee, are the operators of the Greyhound Bus Terminal at 206 Canal Street in the City of McComb City, Mississippi, and were, until the acts and activities of the defendants herein forced them to close the same, the operators of a restaurant business in the said Greyhound Bus Terminal building.

“VI

“The acts of the defendants are wilful, intentional, deliberate acts which defendants have publicly announced to the newspaper, radio and television press media that they intend to continue. The defendants will, unless restrained by order of this court, continue to unlawfully sponsor, finance and encourage other persons to come to the said terminal facilities in the City of McComb City for the purpose of fomenting violence and provoking breaches of the peace in or near said terminal facilities in obstruction to and interference with the lawful rights of the plaintiffs, under the Constitution and laws of the United States of America and the State of Mississippi.

“VII

“The plaintiffs have no adequate remedy at law.

“WHEREFORE, Plaintiffs pray this Honorable Court to permanently enjoin the Defendants, their officers, agents, servants, employees and attorneys and those persons in active concert or participation with them, from continuing to unlawfully sponsor, finance or encourage persons to utilize the terminal facilities in the City of McComb City, Mississippi, for the purpose of fomenting violence and provoking breaches of the peace in or near the said terminal facilities.

“Plaintiff prays for such further relief as the interest of justice may require.”

3 . There is no dispute about the fact that the actions of the members of CORE in this case were for the avowed purpose of testing the segregation previously practiced in the terminal and recently declared invalid by the Federal District Court.

4 . Testimony was that the Chief of Police was informed that these Negroes would return that afternoon at 3:20, but arrived 30 minutes early, and that this was the reason none of his force was there.

5 . At first the demonstration was not going to be halted, but according to one city official, when the situation got out of hand and violence appeared to be imminent, he decided that the demonstration should be stopped. This was when the 15 minute directive was given.

6 . The Court pointed out that it was not until they were told to disperse on pain of arrest did they do more, and that even then there was no violence or threat of violence on their part, or on the part of any member of the crowd. Furthermore, there was ample police protection.

7 . These rights are not absolute. Whitney v. California, 274 U.S. 357, 47 S.Ct 641, 71 L.Ed. 1095.

8 . Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 03 L.Ed. 470.

9 . Congress of Racial Equality may assert the constitutional rights of its members. See N. A. A. C. P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488.

2 . “There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing of an injunction. It is the strong arm of equity, that never ought to be extended, unless to cases of great injury, where courts of law cannot afford an adequate and commensurate remedy in damages. The light must be clear, the injury impending and threatened, so as to be averted only by the protecting preventive process of injunction.” Truly v. Wanzer, 5 How. 141, 12 L.Ed. 88.

This is the standard announced by the same district court for the Southern District of Mississippi in denying injunctive relief to Negro plaintiffs in Clark v. Thompson, 206 F.Supp. 539, 543.