Petition — National Ass'n for the Advancement of Colored People v. Claiborne Hardware Co.

rn Court, US

‘I LED

81-2 02

No. 81- WL 81 1981

> . VAS,

IN THE — .

Supreme Court of the United States

OCTOBER TERM, 1981

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, et al.,

. Petitioners,

CLAIBORNE HARDWARE COMPANY, et al.,

Respondents.

On Writ of Certiorari

to the Supreme Court of Mississippi

PETITION FOR WRIT OF CERTIORARI

LiLoypD N. CUTLER

JAMES ROBERTSON

WILLIAM R. RICHARDSON, JR.

JOHN PAYTON

DRAKE CUTINI

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

(202) 872-6000

Of Counsel: THOMAS I. ATKINS

. CHARLES E. CARTER

FRANK R. PARKER NATIONAL ASSOCIATION

FOR THE ADVANCEMENT

LAWYERS’ COMMITTEE FOR OF COLORED PEOPLE

Civ, Rights UNDER Law Tenth Floor

732 Fifteenth Street, N.W. 1790 Broadway

Washington, D.C. 20005 New York, New York 10019

(202) 628-6700 (212) 245-2100

Counsel for Petitioners

July 31, 1981

— —

QUESTIONS PRESENTED FOR REVIEW

1. Where a boycott of white merchants, organized by

black persons to protest the continued denial of their

civil rights, was accompanied by speeches, picketing,

leaflet distribution and peaceful marches, as well as by

what a state court found to be some incidents of unlawful

conduct by some participants, was it constitutional to

issue a permanent injunction against all participants

banning all boycott activity, including protected speech

and assembly?

2. Can a civil rights boycott constitutionally be en-

joined in its entirety on the basis of the finding by a

state court that some of the boycott participants engaged

in “intimidation, threats, social ostracism, vilification,

and traduction’?

3. Where a civil rights boycott caused business losses,

and where the court found that a small percentage of

the participants had engaged in unlawful acts during

the boycott, could the court constitutionally impose joint

and several liability for all the business losses upon all

the boycott participants, including those whose only in-

volvement in the boycott was to support its aims and vol-

untarily to withhold their patronage?

(i)

ii

LIST OF PARTIES BELOW

In addition to these Petitioners, the following parties

were Appellants in the Mississippi Supreme Court:

Mississippi Action for Progress, Inc.

Beatrice Atlas

Eli Brooks

Priscilla Brooks

Maggie Clark

Mack Louis Davis

Alex Dorsey

Ella Dorsey

Mary Durham

John Eggleston

John Ellis

Rachael Ellis

Ethel Graise

Charlie Harris

Albert Jackson

Mrs. E.J. Jennings

Lela Jones

Bobby Kelly

Clarence Lucas

Bessie Newman

D.A. Newman

Roosevelt Owens

Henry Otis Preston

Viola Robinson

Dora Shorter

Roman Shorter

Rosa Shorter

Annie B. Smith

Delores Smith

Leon Tarleton

Lessie Mae Walls

Alonzo Warner

Ethel Warner

Bonnie Wells

Gussie Pearl Wilson

Willie Wilson

Early Wren

Ruby Wren

The following parties were Appellees in the Mississippi

Supreme Court:

Claiborne Hardware Company, Inc.

Q.H. McDaniel, Jr., d/b/a McDaniel Pharmacy

James E. Hudson and George Hudson, d/b/a Hudson

Bros. Piggly-Wiggly Store

Waddy Abraham, d/b/a Jitney Jungle

Joe Ellis, Mrs. Ben Mullen, and Miss Ella Ellis,

d/b/a George Ellis Food Store

Norman N. Ellis & Barbara B. Eliis, d/b/a Ellis

Variety Store

Murad Nasif & Mildred Nasif, d/b/a M & M Super-

store Washateria

Port Gibson Lumber & Supply Company, Inc.

W.H. Hay, d/b/a O.K. Cleaners & Shirt Laundry

Charles R. Dobbs, d/b/a Western Auto Associates

Store

Allen Motor Co., Inc.

Mrs. Edgar A. McCaa, d/b/a Town & Country

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.................

I DCE —

TABLE OF CONTENTS .

TABLE OF AUTHORITIES .

TINUE ———

Z —

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

Jurisdiction and Reviewability —.............................

REASONS FOR GRANTING THE WRIT ....................

I. The Decision Below Presents an Important First

II.

III.

Amendment Question Concerning the Constitu-

tional Legitimacy of Political Boycotts That

Will Have Significant Impact on Future Political

..

The Decision Below Misconstrues the Narrow

Exception to Traditional First Amendment

Principles Applied by This Court in Milk Wagon

Drivers Local 753 v. Meadowmoor Dairies, and

Is in Direct Conflict with the Decision of the

Fifth Circuit in This Very Case ..........................

The Decision Below Violates the First Amend-

ment’s Guarantee of Freedom of Association in

a Way That Poses Serious Restrictions upon

ee

IE —

11

15

21

24

vi

TABLE OF AUTHORITIES

Cases Page

Abood v. Detroit Board of Education, 431 U.S.

11 8 17

AFL v. Swing, 312 U.S. 321 (1941) 18

Cafeteria Employees Local 302 v. Angelos, 320

SF ee 18

Cantwell v. Connecticut, 310 U.S. 296 (1940) ...... 15

Carey v. Brown, 447 U.S. 455 (1980 11,17

Carroll v. President & Commissioners of Princess

Anne, 398 U.S. 175 (1988) 15, 18

Collin v. Chicago Park District, 460 F.2d 746 (7th

GE, SD cccnececuvisniniiticammmunisiamsimeeeen 18

Consolidated Edison Co. v. Public Service Commis-

III 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

T——K—A 3 oo 9, 10, 11

Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (19617 14

Edwards v. South Carolina, 372 U.S. 229 (1963) 20

Elfbrandt v. Russell, 384 U.S. 11 (1966) 21, 23

Erznoznik v. City of Jacksonville, 422 U.S. 205

„ A 15

Feiner v. New York, 340 U.S. 315 (195177 20

First National Bank v. Bellotti, 435 U.S. 765

KK 0 ·o 11. 15

Flynt v. Ohio, 101 S. Ct. 1958 (198 17 10

Healy v. James, 408 U.S. 169 (19727777 21, 23

Henry v. First National Bank (Henry I), 50 F.R.D.

251 (N.D. Miss. 1970), rev’d, 444 F.2d 1300

(5th Cir. 1971), cert. denied, 405 U.S. 1019

c 5

Henry v. First National Bank (Henry II), 424

F. Supp. 633 (N.D. Miss. 1976), aff d, 595 F.2d

291 (5th Cir. 1979), cert. denied, 444 U.S. 1074

. 6, 10, 14, 19

In re Primus, 436 U.S. 412 (197) 20

Letter Carriers Branch 496 v. Austin, 418 U.S.

PP AAA ß... 18

vii

TABLE OF AUTHORITIES—Continued

Louisiana ex rel. Gremillion v. NAACP, 366 U.S.

ET —————ʃʃ

Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969)

Mathews v. Eldridge, 424 U.S. 319 (1976)

Milk Wagon Drivers Loca! “£3 v. Meadowmoor

Dairies, Inc., 312 U.S, 287 (1941) ....15, 16, 17, 18,

Mills v. Alabama, 384 U.S. 214 (1966)

Missouri v. National Organization for Women, Inc.,

620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S.

842 (1980)

NAACP v. Button, 371 U.S. 415 (1963) 12,

NAACP v. Overstreet, 221 Ga. 16, 142 S.E.2d

816 (1965), cert. dismissed as improvidently

granted, 384 U.S. 118 (1966)

National Socialist Party of America v. Village of

Skokie, 482 U.S. 43 (1977)

Near v. Minnesota ex rel. Olson, 283 U.S. 697

Nebraska Press Assn. v. Stuart, 423 U.S. 1327

(1975) (Blackmun, J., in chambers) ................

Nebraska Press Assn. v. Stuart, 427 U.S. 539

SE ES

New Orleans S.S. Association v. General Longshore

Workers, 626 F.2d 455 (5th Cir. 1980), cert.

granted sub nom. Jacksonville Bulk Terminals,

Inc. v. International Longshoremen’s Associa-

tion, 49 U.S.L.W. 3722 (March 30, 1981) (No.

D ....

Vr 3

NLRB v. Retail Store Employees Local 1001

(Safeco), 447 U.S. 607 (1980:ꝛ::̃

Noto v. United States, 367 U.S. 290 (1961)

Organization for a Better Austin v. Keefe, 402

ESE r... ...

Penne kamp v. Florida, 328 U.S. 331 (1946) 3

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

r Ce

Page

15

14, 19

11

19. 20

13, 14

15, 23

13

10

19

10

15

12, 18

viii

TABLE OF AUTHORITIES—Continued

Page

Rouse Philadelphia, Inc. v. Ad Hoc 78, 417 A.2d

1248 (Pa. Super. Ct. 1979), cert. denied, 449

, ... . 13

Schneider v. State, 308 U.S. 147 (193999 15

Shelton v. Tucker, 364 U.S. 479 (1960) 15

Teamsters Local 20 v. Morton, 377 U.S. 252

cc eee te OO 14

Teamsters Local 795 v. Newell, 356 U.S. 341

(1958), rev’g per curiam 181 Kan. 898, 317 P.2d

gk cc 15,18

Terminiello v. Chicago, 337 U.S. 1 (1949) .............. 18

Thomas v. Collins, 323 U.S. 516 (1945555 12

Thornhill v. Alabama, 310 U.S. 88 (1940) 12, 15

Time, Inc. v. Firestone, 424 U.S. 448 (1976) 20

UMW v. Gibbs, 383 U.S. 715 (1966) 14

UMW v. Pennington, 381 U.S. 657 (1965) 14

United States v. Dellinger, 472 F.2d 340 (7th Cir.

1972), cert. denied, 410 U.S. 970 (1973 22

United States v. Spock, 416 F.2d 165 (Ist Cir.

171] ͤ Ä—U— ncsi caitlin 22

Wooley v. Maynard, 430 U.S. 705 (1977) 15

Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957) 18

r sss nctettiamntaiemiemaniicininteaeintl passim

RR .. 23

i eo | ae passim

Statutes

, 3,9

ES Pe eee ee 5

e 2 ee 5

Miss. Code Ann. § 11-51-31 6

Miss. Code Ann. § 9723-85 6

ix

TABLE OF AUTHORITIES—Continued

Miscellaneous Page

H. Commager, Documecats of American History

la 12

H. Laidler, Boycotts and the Labor Struggle

(1913) C 12

A. Meiklejohn, Free Speech and Its Relation to

Self-Government (194) 17

S. Morison, The Oxford History of the American

ß mea 12

N.Y. Times, June 22, 1981, at Al2, col. 111 12

Note, The Finality Rule for Supreme Court Re-

view of State Court Orders, 91 Harv. L. Rev.

FICE r 10

Note, The Common-Law and Constitutional Status

of Anti-discrimination Boycotts, 66 Yale L.J.

/// 12

L. Tribe, American Constitutional Law (1978) 22

Webster’s New Collegiate Dictionary (1977) 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, et al.,

0 Petitioners,

CLAIBORNE HARDWARE COMPANY, et al.,

Respondents.

On Writ of Certiorari

to the Supreme Court of Mississippi

PETITION FOR WRIT OF CERTIORARI

Petitioners, the National Association for the Advance-

ment of Colored People (“NAACP”)' and 91 individual

black residents of the State of Mississippi, respectfully

1The NAACP has more than 2,000 adult and youth branches

throughout the country, and is affiliated with the NAACP Special

Contribution Fund, the NAACP National Housing Corporation,

and Crisis Publishing Company.

2 The individual Petitioners are Ferd Allen; Henry Anderson;

Alonzo Atlas; Calvin Bailey; James Bailey; McLawrence Bailey;

Joseph M. Barber; Kenneth C. Barber; Bill Beasley; Helen Beas-

ley; Calvin Blackburn; Marjorie W. Brandon; Janie Brown; Tul-

los Brown; Eddie Burrell; James Burrell; Robert Butler, Jr.;

Arthur Lee Camphor; Irma Rae Camphor; W. E. Camphor; Al-

2

pray that a Writ of Certiorari issue to review the J udg-

ment and Opinion of the Supreme Court of Mississippi

entered on December 10, 1980.

OPINIONS BELOW

The opinion of the Supreme Court of Mississippi in

this case, NAACP v. Claiborne Hardware Co., 393 So.

2d 1290 (Miss. 1980), is reproduced in Appendix A.

The unreported opinion of the Chancery Court of the

First Judicial District of Hinds County is reproduced

in Appendix B.

JURISDICTION

The judgment of the Mississippi Supreme Court was

entered on December 10, 1980. App. C. That court ex-

tended the time for filing of petitions for rehearing

until January 24, 1981. App. D. Petitions for rehearing

were denied on March 4, 1981. App. E. By order of

berta Coleman; Charles Collier; James Collier; Alexander Collins;

Geneva Collins; Thelma Crowder; Dan Currie; Sarah Jane Cur-

rie; Charles Davis; Mary Ella Dee; James DeVoual; Geneva

Durham; Johnny Durham; Harvey Ellis; Jim Ellis, Jr.; Katie

Ellis; Charles Evers; James Gray; Walter L. Griffin, Sr.; Bernard

Gusta; Leesco Guster; Cline Harvey; Jim Holt; Willie Jackson;

Jesse Johnson; Roscoe Johnson; Julia Coleman Jones; Marcus

Jones; Nathaniel H. Jones; Samuel Jones, Jr.; Bernice Lee; Ed-

ward Lee; Margaret Liggan; Julia Lucas; Nathaniel Martin;

Leander Monroe; Johnny Moore; Mary Lee Moore; Willie V.

Moore; Ellis Neal; Amos Newsome, Jr.; James Odom; Leona

Owens; William Owens; Henry Patton, Jr.; Evan Roberson; Wil-

liam Robinson; Mary Ross; Odessa Ross; William Matt Ross;

Elmo Scott; Rudolph Shields; Oliver Shinall; Bilbo Smith; Ira

Thomas; Carl Thompson, Jr.; Marguerite Thompson; Mack Tis-

dale; George Henry Walker; Thelma K. Walker; Eddie Walls, Jr.;

Alex Warner; Albert Weathers; Carl Lee Wells; Eddie Lee Wells;

Katie Wells; Bome Wells; James Whitney; Calvin Williams;

Ernestine Williams; Aaron Wilson; and Arthur Wyatt.

The twelve Respondents here, who were the Appellees in the

court below, are identified at page iii of this Petition.

3

Justice Powell, dated May 23, 1981, the time for filing

a petition for writ of certiorari was extended to and

including August 1, 1981. App. F. This Court’s juris-

diction is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States Coustitu-

tion provides:

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.” U.S. Const. amend. I.

The Fourteenth Amendment to the United States Con-

stitution provides:

„. . . No State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

This action was brought by a group of white merchants

in Claiborne County, Mississippi, including Respondents

here, against these Petitioners and other black citizens of

Claiborne County, seeking damages and injunctive relief

in connection with a boycott. The boycott was organized

in 1966 to dramatize the protest of black people against

the continued denial of their civil rights by the local

government and businesses in their community.

The boycott in question grew out of discussions about

civil rights issues in late 1965 and early 1966 between

4

a group of black citizens and a group of white public

officials and business leaders, including a number of these

Respondents. In March 1966, black leaders prepared a

list of specific grievances, including demands for the

desegregation of county schools, the county courthouse

and hospital, and all other public facilities; the employ-

ment of blacks on the local police force; the desegrega-

tion of bus stations and other public accommodations;

the extension of courtesy titles to blacks as well as

whites; the construction of streets, lighting, and sewage

facilities in black residential areas of the county; the

appointment of blacks to positions on the Board of

Education, on juries, and as election officials; and the

employment of black clerks and cashiers in stores

patronized by blacks.“

These grievances were delivered to the political and

business leaders of Claiborne County, but they were

largely ignored or unsatisfied. App. B at 15b. On

April 1, 1966, at a meeting held at the First Baptist

Church in Port Gibson, Mississippi, several hundred black

citizens decided by voice vote to support a general boycott

of certain white-owned businesses in Claiborne County

in order to dramatize their unmet demands.

Particularly at the outset, and intermittently there-

after, the boycott was accompanied and publicized by

speeches, marches, picketing, and leaflet distribution aimed

at persuading blacks not to patronize the merchants’

stores. Many of the picketers were young children. App.

A at 13a. (R. 1147, 2140.) The picketing and marching

activities, which were closely monitored, photographed,

and tape recorded by both city and county law enforce-

ment officials, were orderly at all times. (R. 1127-28.)

The frequency and intensity of boycott-related picketing,

marching, leafletting, and speaking varied over time.

The complete list of grievances is set forth in the Mississippi

Supreme Court’s opinion. App. A at 10a-12a.

5

Protest activity was especially intense after the assassina-

tion of Dr. Martin Luther King, Jr., in April 1968,

and again after a young black man was shot and killed

at his home by a white policeman in Port Gibson in

April 1969.

In October 1969, the merchants filed this action in

the chancery court for Hinds County, Mississippi, seek-

ing injunctive relief against further boycott activities

and $3.5 million for business losses allegedly caused by

the boycott. On December 24, 1969, defendants filed a

special demurrer, asserting that the demands of the bill

of complaint were not maintainable under the First

and Fourteenth Amendments. The chancellor overruled

this demurrer on February 27, 1970. Defendants also

sought on First and Fourteenth Amendment grounds—

and for a time secured—a federal court injunction

against the maintenance of this action. This preliminary

injunction was vacated by the United States Court of

Appeals for the Fifth Circuit in 1971 for lack of subject-

matter jurisdiction.* The case went to trial in chancery

court in 1973. Defendants moved to dismiss on the

ground that enjoining and assigning liability to their

conduct would violate the First and Fourteenth Amend-

ments. On February 25, 1974, that motion was denied.

4 Henry v. First Nat'l Bank (Henry I), 50 F.R.D. 251 (N. D.

Miss. 1970), rev'd, 444 F.2d 1300 (5th Cir. 1971), cert. denied,

405 U.S. 1019 (1972). Henry I involved a claim brought pursuant

to 42 U.S.C. § 1983 on behalf of the defendants in this case. The

federal preliminary injunction against prosecution of this case was

issued on the theory that the merchants “seek to infringe upon

[ Petitioners’] First Amendment rights,“ and that “the prosecution

of the State Action will have a chilling effect upon the exercise of

those rights.” 50 F.R.D. at 268. On appeal, the Fifth Circuit held

that the mere commencement of the private state tort suit had not

itself involved “state action” for purposes of 28 U.S.C. § 1343(3),

the jurisdictional counterpart to 42 U.S.C. § 1983. The court’s

rationale presumed that the state court defendants would receive

full and fair consideration of their First Amendment defenses

in chancery court. See 444 F.2d at 1310.

6

More than two years after the close of the evidence,

the chancellor issued his opinion and final decree. Apps.

B, G. The court awarded the merchants approximately

$1.25 million in damages, statutory penalties, and attor-

neys’ fees, and declared 130 defendants (including these

Petitioners) jointly and severally liable for those dam-

ages. The principal ground of liability as found by the

trial court was violation of Mississippi’s “anti-boycott

statute,” Miss. Code Ann. § 97-23-85, which was enacted

after and in response to the civil rights boycott activity

then prevalent in the state. Other grounds were re-

straint of trade (under state law) and the common law

of civil conspiracy. The final decree also enjoined the

defendants and all persons confederating with them from,

inter alia, [plersuading, soliciting, advising, threaten-

ing, coercing, intimidating and restraining any person”

to withhold patronage from plaintiffs. The decree also

banned all future “[pJicketing or patroling” of plaintiffs’

stores. App. G at 19g.

The 130 defendants appealed to the Mississippi Su-

preme Court.“ Appellants assigned as error the chan-

5 The defendants moved in the Mississippi Supreme Court for

relief from the requirement that they post a surety bond of 125

percent of the amount of the lower court judgment in order to

obtain a writ of supersedeas. See Miss. Code Ann. § 11-51-31.

That inotion was denied.

Defendants thereafter sought preliminary injunctive relief from

the bonding requirement in federal district court. The federal

court granted preliminary relief, finding that Petitioners were

likely ultimately to prevail on the merits of their First Amendment

defenses to the state court suit. The Fifth Circuit, affirming,

observed that the district court’s order “delays enforcement of

the state Chancery Court’s judgment until the Mississippi Supreme

Court and, if necessary, the United States Supreme Court have

had an opportunity to review the important constitutional issues

presented in this case.” Henry v. First Nat'l Bank (Henry II),

424 F. Supp. 633 (N.D. Miss. 1976), aff'd, 595 F.2d 291, 301 (5th

Cir. 1979), cert. denied, 444 U.S. 1074 (1980).

7

cellor’s failure to accord First Amendment protection

to the Claiborne County boycott, and raised a number

of state law defenses to the judgment. On December 10,

1980, the Mississippi Supreme Court rendered its opinion

and judgment. The court found Mississippi’s anti-boycott

statute and trade restraint statutes inapplicable and

grounded its decision only on the common law of civil

conspiracy. It affirmed the chancellor’s decision to assign

to virtually all the appellants full responsibility for all the

merchants’ business losses. That decision was premised

exclusively upon the “presen[ce]” in Claiborne County of

“force, violence, or threats,” App. A at 23a, which the

court found to be the product of a general conspiracy

among all the boycott participants. Quoting extensively

from the chancellor’s opinion, the court held:

In carrying out the agreement and design, cer-

tain of the defendants, acting for all others, engaged

in acts of physical force and violence against the

persons and property of certain customers and pro-

spective customers. Intimidation, threats, social

ostracism, vilification, and traduction were some of

the devices used by the defendants to achieve the

desired results. Most effective, also, was the station-

ing of guards (“enforcers,” “deacons,” or “black

hats”) in the vicinity of white-owned businesses.

Unquestionably, the evidence shows that the volition

of many black persons was overcome out of sheer

fear, and they were forced and compelled against

their personal wills to withhold their trade and busi-

ness intercourse from the complainants.’” App. A

at 20a, quoting App. B at 39b (emphasis supplied

by Mississippi Supreme Court).

The Mississippi Supreme Court rejected the appellants’

claim of First Amendment protection for their boycott

activities, noting:

“The agreed use of illegal force, violence, and threats

against the peace to achieve a goal makes the present

state of facts a conspiracy. We know of no instance,

and our attention has been drawn to no decision,

wherein it has been adjudicated that free speech

guaranteed by the First Amendment includes in its

protection the right to commit crime.” App. A at

23a.

The court identified a few acts of hooliganism that

occurred in Claiborne County during the boycott but

did not connect them with the boycott campaign or its

organizers. See App. A at 15a-18a. The court did not

specify who committed the “crime” referred to in the

above quotation. Nor did it explain what types of “in-

timidation, threats, social ostracism, vilification, and

traduction,” if any, constitute “crime.” *

The court reversed and rendered judgment in favor

of 38 of the appellants.’ As to the remaining 92 ap-

pellants who are Petitioners here, however, the Court

upheld the chancellor’s injunction prohibiting all further

boycott activity.“ The Court also held that the 92 ap-

pellants would be liable for all business losses that the

merchants could prove were caused by the boycott. All

*The dictionary definition of “traduction” is defamation. See

Webster's New Collegiate Dictionary 1238 (1977) (“expos[ing]

to shame or blame by means of falsehood and misrepresentation” ).

7Of the 38, 37 were individuals that could not be held liable

even under the court’s generalized conspiracy theory. Either there

was no evidence about them at all, or the evidence failed to show

that they were active in the boycott in any way. Also dismissed was

Mississippi Action for Progress, Inc., a federally-funded, nonprofit

Mississippi corporation administering the Headstart Program in

Claiborne County.

8In upholding the injunction, the court asserted that ap-

pellants viewed this issue as “moot,” App. A at 5a, even though

they had specifically assigned it as error. Appellants sought

reconsideration of this disposition of the injunction question in

their petition for rehearing. Appellants’ position was not that the

outstanding injunction was moot for purposes of appellate review,

but that chancery jurisdiction on remand would be inappropriate

in view of the absence of equity jurisdiction where the activities

sought to be enjoined were not continuing. App. H. Appellants’

rehearing petition was denied without opinion. App. E.

decisions not to patronize were thus charged to these

92 appellants. The Court did find errors of state law

in the merchants’ proof of damages, and it remanded

for a retrial on that question, concluding:

“We are satisfied that complainants suffered some

damages resulting from the boycott but are of the

opinion that the amount allowed was excessive under

the evidence presented.” App. A at 35a.

Petitions for rehearing were denied on March 4, 1981.

App. E.

Jurisdiction and Reviewability

The decision below is a “[fJinal judgmen/t] or

decre[e]” within the meaning of 28 U.S.C. § 1257. It

involves the second category of final judgment identified

by this Court in Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 480 (1975), i.e., one

“in which the federal issue, finally decided by the

highest court in the State, will survive and require

decision regardless of the outcome of future state-

court proceedings.”

Here, no federal questions remain for decision by the

state trial court on remand. The Mississippi Supreme

Court’s decision does not leave room for litigating in

state court any of the important First Amendment ques-

tions presented by this Petition. Subsequent proceedings

apparently will be directed solely to the question of how

much money each complaining merchant lost because of

the boycott. The constitutional questions presented by

the judgment below w' survive and require decision”

whatever may be decidea on remand. Such judgments

are final for purposes of Section 1257. See, e.g., New

York v. Cathedral Academy, 434 U.S. 125, 128 n.4

(1977) ; Radio Station WOW, Inc. v. Johnson, 326 U.S.

120 (1945).

The special procedural posture of this case strongly

counsels in favor of deciding these important, and readily

10

identifiable,® First Amendment questions now. The per-

manent injunction against all future protest activities

directed at the merchants’ businesses is now final. While

the injunction may be reviewable in this Court someday,

the prior restraint it imposes upon Petitioners’ rights of

free speech is in effect now and, but for the Fifth

Circuit’s stay,“ would completely bar the exercise of these

rights in the interlocutory period and during retrial.

See National Socialist Party of America v. Village of

Skokie, 432 U.S. 43, 44 (1977) ; Nebraska Press Assn. v.

Stuart, 423 U.S. 1327, 1329-30 (1975) (Blackmun, J.,

in chambers)."' The chilling effect of this highly pub-

licized case upon Petitioners and upon NAACP chapters

nationwide is a factor that cannot be overemphasized.

Considerations of judicial economy and federalism

would be well-served by review at this point in the litiga-

tion. As this Court noted in Cox, one of the touchstones

of the finality requirement is the recognition that im-

mediate review may avoid “the mischief of economic

waste.” 420 U.S. at 477-78. Trial of the damage issues

in this case would be protracted and complex. The Mis-

sissippi Supreme Court directed that in estimating lost

sales attributable to the boycott each merchant must

exclude the effects of such factors as population changes,

managerial skills, advertising effects, the 1970 recession,

and the need for and availability of increased inventory.

App. A at 30a-3la. The Court further directed that each

merchant’s conversion of lost sales to lost earnings be

recalculated to consider changes in the pricing policies

of his business, remanded the awards for loss of good

Cf. Flynt v. Ohio, 101 S. Ct. 1958, 1960 (1981).

% In Henry II the Fifth Circuit enjoined enforcement of the

chancery court decree pending review by the Miss ppi Supreme

Court and by this Court. See note 5 supra.

11 Accord, Note, The Finality Rule for Supreme Court Review

of State Court Orders, 91 Harv. L. Rev. 1004, 1031-32 (1978).

11

will for the introduction of further evidence, and estab-

lished additional guidelines on remand. Id. at 30a, 31a-

35a. A trial on these issues could consume months (the

first trial lasted six months! and cost hundreds of thou-

sands of dollars. It would b= an “economic waste,” given

the possibility of subsequent reversal by this Court.

Review in this Court now is consistent with the pragmatic

nature of the finality requirement.”

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW PRESENTS AN IMPOR-

TANT FIRST AMENDMENT QUESTION CON-

CERNING THE CONSTITUTIONAL LEGITIMACY

OF POLITICAL BOYCOTTS THAT WILL HAVE

SIGNIFICANT IMPACT ON FUTURE POLITICAL

PROTEST ACTIVITY.

The Claiborne County boycott campaign was in the

mainstream of the civil rights movement. Since Re-

construction, black citizens of Claiborne County had

been foreclosed from participation in elections, forced

to attend segregated schools, and denied employment

either in public jobs funded by their tax dollars or in

private jobs working for the merchants who depended

on their trade. The boycott was also in the mainstream

of American political history. Citizens were urged by

means of speeches, marches, leaflets, and picketing to

participate in the boycott. Those communications, de-

signed to alter prevailing governmental policies, were

quintessentially protected speech.“ It has always been

beyond question that the First Amendment permits the

advocacy of boycott messages to protest government

12 See, e.g., Cox, supra, 420 U.S. at 486; Mathews v. Eldridge,

424 U.S. 319, 331 n.11 (1976).

13 See, e.g., Carey v. Brown, 447 U.S. 455, 466-67 (1980); First

Nat’! Bank v. Bellotti, 485 U.S. 765, 776-77, 790 (1978); Mills v.

Alabama, 384 U.S. 214, 218 (1966).

12

policies. That amendment guarantees American citizens

“the opportunity to persuade to action, not merely to

describe facts.“

Boycott campaigns have played an important role in

the history of political protest in this country ever since

American colonists refused to buy English-made goods in

order to force repeal of the Stamp and Townshend Acts."*

Abolitionists refused to buy slave-made goods before the

Civil War.“ Consumers’ Leagues organized by the Pro-

gressives around the turn of the century issued reports

and “white lists” to urge boycotts of what they viewed as

“sweat-shop” industries.“ Blacks in Montgomery, Ala-

bama, launched the desegregation movement in this coun-

try through their boycott of that city’s bus system.“

Only recently, church groups have organized a boycott

campaign to protest the sponsorship of television pro-

gramming featuring prominent displays of sex or vio-

lence.““ The Eighth Circuit recently afforded First

Amendment protection to a boycott protesting the failure

of several states to ratify the proposed Equal Rights

14 Thomas v. Collins, 323 U.S. 516, 537 (1945). See also Organi-

zation for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971);

NAACP v. Button, 371 U.S. 415, 429 (1963) ; Thornhill v. Alabama,

310 U.S. 88, 104-05 (1940).

15S. Morison, The Oxford History of the American People

197-98 (1965); H. Commager, Documents of American History

67-68, 76-78, 80 (7th ed. 1963) (non-importation resolutiors).

The Sons and Daughters of Liberty played an active role in these

boycotts, distributing circulars urging citizens not to trade with

Tory merchants. One typical poster read:

“It is desired that the Sons of Liberty would not buy any one

thing of them .. ., for in so doing they will bring disgrace

upon themselves and their posterity forever and ever. Amen.”

H. Laidler, Boycotts and the Labor Struggle 29 (1913).

16H. Laidler, supra, at 55.

17 Id. at 33-35.

18 See Note, The Common-Law and Constitutional Status of Anti-

discrimination Boycotts, 66 Yale L.J. 397 (1957).

19 See N.Y. Times, June 22, 1981, at A12, col. 1.

13

Amendment.“ This Court will hear this Term threshold

Norris-LaGuardia issues involving a refusal to handle

Soviet cargoes in response to the Russian intervention in

Afghanistan.

The Court has never before found occasion to consider

the important question of how the First Amendment

applies in the context of political boycott activity.“ The

lower federal courts have recognized that political boycott

activity holds protected constitutional status. In its recent

opinion in a proceeding related to this very case, the

Fifth Circuit observed:

“At the heart of the Chancery Court’s opinion lies

the belief that the mere organization of the boycott

and every activity undertaken in support thereof

could be subject to judicial prohibition under state

law. This view accords insufficient weight to the

First Amendment’s protection of political speech

and association. There is no suggestion that the

NAACP .. . or the individual defendants were in

competition with the white businesses or that the

boycott arose from parochial economic interests. On

the contrary, the boycott grew out of a racial dis-

pute with the white merchants and city government

of Port Gibson and all of the picketing, speeches,

and other communication associated with the boycott

20 Missouri v. National Organization for Women, /nc., 620 F.2d

1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980).

21 New Orleans S.S. Ass'n v. General Longshore Workers, 626

F.2d 455 (5th Cir. 1980), cert. granted sub nom. Jacksonville

Bulk Terminals, Inc. v. International Longshoremen’s Ass'n, 49

U.S.L.W. 3722 (U.S. March 30, 1981) (No. 80-1045).

22 Other political boycott cases have not squarely presented the

question raisea in this case. See Missouri v. National Organiza-

tion for Women, Inc., 620 F.2d 1301 (8th Cir.), cert. denied, 449

U.S. 842 (1980); Rouse Philadelphia, Inc. ». Ad Hoe 78. 417

A.2d 1248 (Pa. Super. Ct. 1979), cert. denied, 449 U.S. 1004

(1980) ; NAACP v. Overstreet, 221 Ga. 16, 142 S.E.2d 816 (1965),

cert. dismissed as improvidently granted, 384 U.S. 118 (1966)

(per curiam) (5-4).

14

were directed to the elimination of racial discrimina-

tion in the town. This differentiates this case from

a boycott organized for economic ends, for speech to

protest racial discrimination is essential political

speech lying at the core of the First Amendment.” *

And in Machesky v. Bizzell, 414 F.2d 283, 287, 288-89

(5th Cir. 1969), involving a virtually identical civil

rights boycott, the Fifth Circuit affirmed the grant of

a federal injunction against a sweeping Mississippi

chancery decree in order “to vindicate clear First Amend-

ment rights” involved in that boycott—“ political rights

which determine the composition of government and the

direction of government policy.” *

The Mississippi Supreme Court in this case has re-

fused to accord any protection for these political rights. It

has held that these Petitioners will be liable for all busi-

ness losses caused by everyone’s refusal to patronize plain-

tiffs’ stores—regardless of whether an individual’s deci-

sion to withhold trade was a matter of lawful persuasion

or unlawful coercion.” And it has enjoined all protest

23 Henry v. First Nat'l Bank (Henry II), 595 F.2d 291, 303

(5th Cir. 1979), cert. denied, 444 U.S. 1074 (1980).

24 Similarly, in Missouri v. National Organization for Women,

Inc., 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980),

the Eighth Circuit refused to apply either the Sherman Act or

Missouri tort law to a boycott organized by NOW to protest the

state’s failure to ratify the proposed Equal Rights Amendment.

The Eighth Circuit relied in part upon this Court’s decisions hold-

ing that group activity directed at influencing governmental pol-

icies implicates the First Amendment’s guarantee of the right to

petition for redress of grievances. See Eastern R.R. Presidents

Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961);

UMW v. Pennington, 381 U.S. 657 (1965).

25 Like the overbroad injunction, this failure to apportion damage

liability was constitutional error. See UMW v. Pennington, 381

U.S. 657, 671-72 (1965); UMW v. Gibbs, 383 U.S. 715, 729-35

(1966); cf. Teamsters Local 20 v. Morton, 377 U.S. 252, 259-62

(1964) (damage award under state law for unlawful union activity

cannot include losses caused by simultaneou. union activity pro-

tected by federal labor law).

15

activities directed at those stores, including peaceful

speeches, marches, leaflet distribution, and peaceful

picketing. This was constitutional error. The First

Amendment requires “jp]recision of regulation,” not

Abl road prophylactic rules.” NAACP v. Button, 371

U.S. 415, 438 (1963). That doctrine has uniformly

been applied by this Court to state statutes,?* mu-

nicipal ordinances, and judicial injunctions.** As the

Court has recently held, “Where a government restricts

the speech of a private person, the state action may be

sustained only if the government can show that the reg-

ulation is a precisely drawn means of serving a compell-

ing state interest.” Consolidated Edison Co. v. Public

Service Commission, 447 U.S. 530, 540 (1980). The

state court’s decision in this case is not precisely drawn,

nor has it been shown to serve any state interest. It

is not an aberration this Court can safely let pass. It is

a serious threat to American political freedom.

II. THE DECISION BELOW MISCONSTRUES THE

NARROW EXCEPTION TO TRADITIONAL FIRST

AMENDMENT PRINCIPLES APPLIED BY THIS

COURT IN MILK WAGON DRIVERS LOCAL 753

V. MEADOWMOOR DAIRIES, AND IS IN DIRECT

CONFLICT WITH THE DECISION OF THE FIFTH

CIRCUIT IN THIS VERY CASE.

The court below purported to find justification for

its decision in Milk Wagon Drivers Local 753 v. Meadow-

26 See, e.g., First Nat'l Bank v. Bellotti, 438 U.S. 765, 786

(1978); Wooley v. Maynard, 430 U.S. 705, 716-17 (1977); Louwi-

siana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296-97 (1961);

Shelton v. Tucker, 364 U.S. 479, 488 (1960); Cantwell v. Con-

necticut, 310 U.S. 296, 307-08 (1940); Thornhill v. Alabama, 310

U.S. 88, 98-101 (1940).

27 See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205,

213-14, 217-18 (1975); Schneicler v. State, 308 U.S. 147 (1939).

28 See, e.g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563-65

(1976); Carroll v. President & Comm'rs of Princess Anne, 393

U.S. 175, 183-84 (1968); Teamsters Local 795 v. Newell, 356 U.S.

341 (1958), rev’g per curiam 181 Kan. 898, 317 P.2d. 817 (1957).

16

moor Dairies, Inc., 312 U.S. 287 (1941). App. A at 20a-

21a. This reliance could not have been more misplaced.

Meadowmoor was designed as an extremely narrow

exception to the principle that any regulation of speech

must be precisely drawn. The Mississippi Supreme

Court’s unprecedented and unwarranted extension of

Meadowmoor to the facts of the instant case presents an

important question concerning First Amendment rights

that should be settled by this Court.

In Meadowmoor, this Court upheld an injunction that

barred all labor picketing. The circumstances of that

case amounted literally to a labor war, in which violence

was “neither episodic nor isolated.” The Court cata-

logued these circumstances with great care:

“Witnesses testified to more than fifty instances of

window-smashing; explosive bombs caused substan-

tial injury to the plants of Meadowmoor and another

dairy using the vendor system and to five stores;

stench bombs were dropped in five stores; three

trucks of vendors were wrecked, seriously injuring

one driver, and another was driven into a river; a

store was set on fire and in large measure ruined;

two trucks of vendors were burned; a storekeeper

and a truck driver were severely beaten; workers

at a dairy which, like Meadowmoor, used the vendor

system were held with guns and severely beaten

about the head while being told ‘to join the union’;

carloads of men followed vendors’ trucks, threatened

the drivers, and in one instance shot at the truck

and driver. In more than a dozen of these occur-

rences, involving window-smashing, bombings, burn-

ings, the wrecking of trucks, shootings, and beatings,

there was testimony to identify the wrongdoers as

union men.“

It would needlessly encumber the reports to quote in de-

tail the evidence thus summarized. The curious may turn to

the record in the case.”

17

312 U.S. at 291-92 & n.1. Peaceful labor picketing was

enjoined along with violent conduct in Meadowmoor, but

this Court cautioned that the “[rlight to free speech

in the future cannot be forfeited because of dissociated

acts of past violence.” Id. at 296.

There is serious constitutional question whether

Meadowmoor, a picketing case decided in the context of

pervasively violent labor union activity, is even applicable

to political boycotts. The First Amendment’s guarantees

are broader for purposes of political activity than for

purposes of labor union activity. See Abood v. Detroit

Board of Education, 431 U.S. 209 (1977). The Court

has explicitly distinguished labor picketing from public

protests concerning the desegregation of local schools,

observing that the latter “res[t] on the highest rung of

the hierarchy of First Amendment values.“ Here, too,

Petitioners’ communicative activity has been directed at

civil and political reforms, not labor or economic issues.

The Meadowmocr exception has been—and should con-

tinue to be—narrowly confined to the explosive potential

of industrial strife.

In any event, the record of this case simply does not

support the Mississippi Supreme Court’s invocation of

the Meadowmoor exception. Dissociated acts of past

violence do not justify a sweeping injunction against all

future speech; the Meadowmoor Court itself cautioned

that “a trivial rough incident or a moment of animal

2° Carey v. Brown, 447 U.S. 455, 466-67 (1980), citing A. Meikle-

john, Free Speech and Its Relation to Self-Government (1948).

On the same day Carey was decided, two of six Justices who

reached the question resolved the “difficult First Amendment is-

sues” concerning the federal ban on peaceful secondary picketing

by labor unions only by reference to the substantial governmental

interest in limiting the confines of “industrial strife” and the

specially “persuasive deterrent” of conduct on the laber picket line.

NLRB v. Retail Store Employees Local 1001 (Safeco), 447 U.S.

607, 616-18 (1980) (Blackmun, J., concurring in the result); id. at

618-19 (Stevens, J., concurring in the result).

18

exuberance” does not abrogate First Amendment rights.

312 U.S. at 293. The Court has distinguished the facts

of Meadowmoor, not only from a companion case decided

the same day, AFL v. Swing, 312 U.S. 321, 325 (1941),

but also from every other similar case that has been de-

cided since.”

Meadowmoor cannot be applied, as a matter of law

and fact, unless there has been a finding that an injunc-

tion limited to violent conduct would be ineffective if

picketing were resumed.*' The Mississippi Supreme Court

made no such finding, and apparently considered it un-

necessary: “If any of these factors—force, violence, or

threats—is present, then the boycott is illegal regardless

of whether it is . . political, social or other.” App. A

at 23a (emphasis supplied). This “presence of violence“

test is inconsistent with the plain language of Meadow-

moor.

The court below did make the conclusory statement

that an “atmosphere of fear . . . prevailed among blacks

from 1966 until 1970.” ** But fear of “social ostracism,

vilification, and traduction,” App. A at 20a, does not

raise a justiciable issue in a First Amendment case.“

Much conduct covered by these broad categories is not

even actionable, and even actionable “traduction” or

0 See Cafeteria Employees Local 302 v. Angelos, 320 U.S. 293,

296 (1943); Youngdahl v. Rainfair, Inc., 355 U.S. 131, 139 (1957);

Teamsters Local 795 v. Newell, 356 U.S. 341 (1958), rev’g per

curiam 181 Kan. 898, 912-16, 317 P.2d 817, 829-31 (1957); Carroll

v. President & Comm'rs of Princess Ann 393 U.S. 175, 180-81

(1968). See also Collin v. Chicago Park Dist., 460 F.2d 746, 755

(7th Cir. 1972).

31 See Youngdahl, supra, 355 U.S. at 139. See also Angelos, supra,

320 U.S. at 296.

82 App. A at 16a, quoting App. B at 35b.

33 See, e.g., Letter Carriers Branch 496 v. Austin, 418 U.S. 264,

280-87 (1974); Organization for a Better Austin v. Keefe, 402

U.S. 415, 419 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5

(1949).

19

defamation does not justify a prior restraint on its

repetition.* In any case, it was not fear—or even the

fear of “traduction”—that made this civil rights boycott

effective. As the merchants themselves conceded in the

court below,“ witness after witness testified that in 1966

black persons in Claiborne County were sufficiently im-

patient with the continued denial of their civil rights

that they voluntarily refused to have any further eco-

nomic dealings with the plaintiffs in this case. (R. 5731-

32, 5855-56, 6066-67, 6227, 6641, 6737, 6848, 6864,

12419, 13543-44.) As one of the employees of the county

Headstart Program testified:

“T just stayed out of the stores, because I had my

own personal reasons to stay out of the stores. There

were some things I really wanted, and the things I

wanted were the right to vote, the right to have a

title—Mrs. or Mr. or whatever I am, and not uncle

or aunt, boy or girl. So that’s what I wanted. And

if I wanted a job—a qualified job, I wanted to have

the opportunity to be hired. Not hired because I’m

black or white, but just hired.” (R. 15476.)

Understandably, the Fifth Circuit has refused to apply

Meadowmoor to the facts of this very case, concluding

that the chancellor’s sweeping injunction

“overshoots the mark and the situation cannot be

saved by Milk Wagon Drivers Union v. Meadow-

moor Dairies, 1941, 312 U.S. 287, 61 S. Ct. 552,

85 L. Ed. 836, a case premised on violence of an

intensity and duration in no way present here, or

at least on the record before the district court.” *

% See, e.g., Near v. Minnesota ez rel. Olson, 283 U.S. 697 (1931).

35 See Brief for Appellees Claiborne Hardware Co., et al. at 12:

“Most of the witnesses testified that they voluntarily went

along with the NAACP and their fellow black citizens in hon-

oring and observing the boycott because they wanted the

boycott.”

36595 F.2d at 304, quoting Machesky v. Bizzell, 414 F.2d 283,

290-91 (5th Cir. 1969). Nor was there any insufficiency in the rec-

20

In First Amendment cases on review from state

courts, this Court “of course make|s] an examination

of the evidence to ascertain independently whether the

right has been violated.” *’ Review is essential here

to ensure that the extraordinary sanction permitted by

Meadowmoor is not misapplied. Review is also needed

to resolve a direct conflict between the Mississippi Su-

preme Court and the Fifth Circuit as to the contours of

this unusual exception both to the rule of presumptive

unconstitutionality of prior restraints and to the prohibi-

tion against overbreadth in otherwise lawful limitations

on First Amendment activity.

ord before the district court. The case was presented only after the

conclusion of the state court trial, and the merchants (Respondents

here) had ample opportunity to make whatever record they wished

to make in federal court.

87 Feiner v. New York, 340 U.S. 315, 316 (1951). See also id. at

322 n.4 (Black, J., dissenting); In re Primus, 436 U.S. 412, 434

(1978); Edwards v. South Carolina, 372 U.S. 229, 235 (1963);

Pennekamp v. Florida, 328 U.S. 331, 335 (1946). See also Time,

Inc. v. Firestone, 424 U.S. 448, 463 (1976) (deference to state

findings in First Amendment case “predicated on our belief that at

some point in the state proceedings some factfinder has made a

conscious determination of the existence or nonexistence of the

critical fact“).

Petitioners cannot provide a comprehensive analysis of the rec-

ord below within the space limits of this Petition. We note, however,

that most of the incidents cited by the chancellor (and quoted by the

court below) are either unrelated to the boycott or so minor as to

lack constitutional significance. The slashing of the tires on Jasper

Coleman’s car, for example, was done by a person or persons un-

known while the car was parked in front of someone else’s house

during an all-night poker game. R. 13792. Willie Myles reported

that “a carload of young blacks began following him,” but the

court does not indicate why, and the “young blacks” are not iden-

tified with the boycott except that they were blacks, in Port Gibson,

at the time the boycott took place. App. A at 18a. The “threat-

ening” nature of other incidents is belied by the fact that the

“victims” continued to do business with the plaintiffs. Compre-

hensive review of the record by this Court will show the lower

court’s description of “boycott” events to be little more than ex-

cerpts from the Claiborne County police blotter from 1966 to 1970.

21

III. THE DECISION BELOW VIOLATES THE FIRST

AMENDMENT’S GUARANTEE OF FREEDOM OF

ASSOCIATION IN A WAY THAT POSES SERIOUS

RESTRICTIONS UPON GROUP PROTEST AC-

TIVITY.

The Mississippi Supreme Court applied the common

law of civi! conspiracy in this case to hold each of these

Petitioners jointly and severally liable for all the business

losses the merchants can prove were caused by the boy-

cott. This essentially unbounded application of con-

spiracy theory violates the associational rights of these

Petitioners and seriously jeopardizes the exercise by

others of their First Amendment rights to organize or

engage in group protest activity.

It is not disputed that, during the four-to-seven-year

period in which the boycott was in effect, unlawful acts

were committed in Claiborne County from time to time.

There was, however, no evidence whatever suggesting

any central design or direction of such acts. The only

finding regarding virtually all of the 91 individual Peti-

tioners was that they supported the boycott, belonged to

the NAACP, and took part in peaceful marches and

demonstrations—not that they or any of them participated

in violence, participated in activities supporting violence,

or intended to further violent activity.“

A state may not constitutionally penalize an individual

on the basis of his association with a group or an or-

ganization unless it is established that he has both “a

knowing affiliation with an organization possessing un-

lawful aims and goals, and a specific intent to further

those illegal aims.” Healy v. James, 408 U.S. 169, 186

(1972). See also Elfbrandt v. Russell, 384 U.S. 11

(1966); Noto v. United States, 367 U.S. 290, 299-300

38 The courts below identified only nine individuals even arguably

connected with “violent” acts in the broadest sense of that term.

App. A at 15a-18a.

22

(1961). The Mississippi Supreme Court made no find-

ing that each of the Petitioners or any of them had the

specific intent to further the Claiborne County boycott

through illegal means. The court merely lumped all of

them together with the conclusory statement that “certain

of the defendants, acting for all others, engaged in acts

of physical force . . .,” App. A at 20a, and observed

that “the present state of facts” indicates an “agreed

use of illegal force.” Id. at 23a. Those statements do

not impute to these Petitioners, or to any of them, the

specific intent to commit unlawful acts. The issue here

is not whether a few people committed simple assaults

or disturbed the peace contemporaneously or even in

connection with the boycott. Rather, the question is

whether they had the specific intent to further the boy-

cott by unlawful means. The record contains no evidence

of any such specific intent on the part of any of the

individual Petitioners.

Nor was there any showing that any Petitioner’s mem-

bership in the NAACP formed the requisite affiliation

“with an organization possessing unlawful aims and

goals.” A few of the persons alleged to have committed

unlawful acts were members of the Claiborne County

chapter of the NAACP, organized sometime in 1966.

But, as the court below itself recognized in dismissing

out a number of the defendants, membership in the

NAACP does not meet the test.“

These principles have been applied to groups“ defined, as

here, by conspiracy laws, or to other loosely structured groups. See

United States v. Dellinger, 472 F.2d 340, 392-94 (7th Cir. 1972),

cert. denied, 410 U.S. 970 (1973); United States v. Spock, 416

F.2d 165, 172-73 (Ist Cir. 1969). See generally L. Tribe, American

Constitutional Law 703-04 (1978).

* The court below did observe that

“The testimony revealed that the defendant NAACP pro-

vided attorneys to defend black persons arrested and charged

with violating the laws of Mississippi in connection with acts

arising from the boycott; and this nonresident corporation

23

The Mississippi Supreme Court’s sweeping reliance

upon principles of group and vicarious liability in this

case will, unless reversed, have serious implications for

the continued exercise of associational freedoms by mem-

bers of the NAACP and every member of any organiza-

tion devoted to social or political reforms. The Claiborne

County boycott resembled many protest movements by

citizens who lack power and influence as individuals but

suffer what they view as political or social injustice and

join together to make themselves heard. In effect, the

Mississippi Supreme Court has held that anyone who

supports or joins in peaceful, legitimate political protest

activities may be held liable for the unlawful act of

another with whom his only connection is common political

affiliation.

Unless reversed, the Mississippi Supreme Court de-

cision legitimizes liability by association. It conditions

a citizen’s right to participate in public protest upon his

willingness to undertake financial responsibility for the

acts of others. It ignores the rule of Healy, Noto, and

Elfbrandt that in the First Amendment context an

individual may be penalized only for his own ac-

tions and intentions, and provides instead that persons

whose goals and actions are entirely lawful may none-

theless be treated as lawbreakers if others, with whom

they are not shown to be connected, seek the same goal

by unlawful means. The consequences of such a rule

posted bail bonds and on occasion paid fines of black persons

convicted of criminal charges.” App. A at 19a, quoting App.

B at 38b.

This observation—apart from contradicting the testimony (R.

4940) — demonstrates an unprecedented view of the confines of a

conspiracy. Quite apart from its inconsistency with the premises

of the Sixth Amendment, ascribing liability to the organization

that provides a lawyer to a criminal defendant is, in this context,

clearly a denial of the First Amendment right of freedom of asso-

ciation. See NAACP v. Button, 371 U.S. 415 (1963).

24

for the future of peaceful political association are so

serious that the Mississippi Supreme Court’s decision

should be reviewed by this Court.

CONCLUSION

For the foregoing reasons, Petitioners pray that a

Writ of Certiorari issue to review the Judgment and

Opinion of the Supreme Court of Mississippi in this

case.

Respectfully submitted,

LLorDp N. CUTLER

JAMES ROBERTSON

WILLIAM R. RICHARDSON, JR.

JOHN PAYTON

DRAKE CUTINI

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

(202) 872-6000

Of Counsel: THOMAS I. ATKINS

WILLIAM L. ROBINSON o EB. c

FRANK R. PARKER NATIONAL ASSOCIATION

FOR THE ADVANCEMENT

LAWYERS’ COMMITTEE FOR OF COLORED PEOPLE

Civit RiGHts UNDER LAW Tenth Floor

733 Fifteenth Street, N.W. 1790 Broadway

Washington, D.C. 20005 New York, New York 10019

(202) 628-6700 (212) 245-2100

Counsel for Petitioners

July 31, 1981