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

~

= No. 81-202

—

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.,

7 Respondents.

On Writ of Certiorari

to the Supreme Court of Mississippi

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE OF THE

AMERICAN CIVIL LIBERTIES UNION

AND THE NATIONAL ORGANIZATION FOR WOMEN

JOHN VANDERSTAR

(Counsel of Record)

Of Counsel: Davm J. CYNAMON

CHARLES S. SIMS DONNA L. KOHANSKY

AMERICAN CIVIL LIBERTIES Dv F. WILLIAMS

UNION STEVEN J. ROSENBAUM

132 W. 43rd Street JOHN B. WARDEN

New York, New York 10016 COVINGTON & BURLING

PHYLLIS N. SEGAL 1201 Pennsylvania Avenue, N.W.

NOW L&GAL DEFENSE AND Post Office Box 7566

EDUCATION FUND Washington, D.C. 20044

132 W. 43rd Street (202) 662-5540

New York, New York 10016 Attorneys for Amici Curiae

December 24, 1981

—

WILSON - Eres PrintiNG Co. INC. - 789.9096 - WASHINGTON. D.C. 20001

IN THE

Supreme Court of the Untied States

OCTOBER TERM, 1981

No. 81-202

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, et al.,

. Petitioners,

CLAIBORNE HARDWARE COMPANY, et al.,

Kespondents.

On Writ of Certiorari

to the Supreme Court of Mississippi

MOTION OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE NATIONAL ORGANIZATION FOR WOMEN

FOR LEAVE TO FILE BRIEF AMICI CURIAE

The American Civil Liberties Union (“ACLU”) and

the National Organization for Women (“NOW”) re-

spectfully move for leave to file the attached brief amici

curiae. The consent of the attorney for the petitioners

has been obtained and filed with the Clerk, but respond-

ents have refused consent.

The ACLU was founded over 60 years ago to preserve

and protect the fundamental principles of the Bill cf

Rights. It is a national, non-partisan organization of

over 200,000 members. It has frequently appeared in

this Court and many other courts, both as representa-

tive of parties and as amici curiae.

The ACLU’s interest in this case stems from the long-

standing concern of the organization and of its members

(2)

to protect to the fullest extent the rights secured by the

First Amendment to the Constitution. The decision of

the Supreme Court of Mississippi that is under review

here strikes at the very heart of the First Amendment.

In subjecting all of the petitioners to liability for dam-

ages and to the restraints of an injunction, the decision

threatens virtually complete elimination of the right to

engage in a time-honored form of expression, the civil

rights boycott. Upon many other occasions and in many

other cases, the ALCU has acted vigorously to protect

those rights and wishes to express its views on the issues

to the Court in this amici brief.

NOW shares the interests of the ACLU in protecting

the right to engage in boycotts to advance civil rights

concerns. NOW was the defendant in actions brought by

two state attorneys general seeking declaratory and in-

junctive relief against NOW for its role in promoting the

“ERA boycott”, under which several hundred church

groups, professional associations, women’s organizations,

and civil rights groups have adopted resolutions not to

hold their meetings or conventions in states that have

not yet ratified the Equal Rights Amendment. NOW

has successfully defended the right to engage in such

activity. Missouri v. National Organization for Women,

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

(1980). NOW is interested in being free to engage in

similar activity in the future and thus has a very direct

interest in any legal challenge to the ability of a civil

rights group to promote boycott activities in furtherance

of social justice.

Additionally, amici have noted that this case has been

set for oral argument in tandem with General Building

Contractors Association v. Pennsylvania, No. 81-280, and

related cases, 50 U.S.L.W. 3275 (U.S., Nov. 10, 1981).

As the attached brief amci curiae demonstrates, there

is no relationship between these two cases, and a de-

cision by the Court in favor of petitioners in this case

(3)

would not be inconsistent with a decision in favor of the

respondents in the General Building Contractors case.

The petitioners may not address this issue in their brief

and accordingly the attached brief amici curiae can make

a contribution to the Court’s decisional process in this

case.

y, the ACLU and NOW move for leave to

file the attached brief amici curiae.

Respectfully submitted,

JOHN VANDERSTAR

a (Counsel of Record)

Of Counsel: Davip J. CYNAMON

CHARLEs S. SIMs DONNA L. KOHANSKY

AMERICAN CIVIL LIBERTIES Davip F. WILLIAMS

UNION STEVEN J. ROSENBAUM

132 W. 43rd Street JOHN B. WARDEN

New York, New York 10016 COVINGTON & BURLING

PHYLLIS N. SEGAL 1201 Pennsylvania Avenue, N.W.

NOW LGL DEFENSE AND Post Office Box 7566

EDUCATION FUND Washington, D.C. 20044

132 W. 43rd Street (202) 662-5540

New York, New York 10016 Attorneys for Amici Curiae

December 24, 1981

I.

II.

III.

A Civil Rights Boycott Is At the Core of First

Amendment Protection

A. A Civil Rights Boycott Is A Form of Politi-

cal Speech and Association

B. Protection of Political Speech and Associa-

tion Is Central to the First Amendment

Civil Rights Boycotts Should Not Be Judged as

Common Law Conspiracies

A. Imposing Liability On An Individual Solely

Because of Political Association With Others

Violates the First Amendment

B. An Injunction That Prohibits Advocacy and

Picketing Is An Impermissible Prior Re-

straint and An Unconstitutionally Overbroad,

Content-Based Restriction on Speech ............

C. The Meadowmoor Case No Longer Expresses

a Constitutionally Viable Principle

Illegal Conduct By Boycott Participants Can Be

Controlled Under Traditional Common-Law

Principles of Personal Responsibility Without

Employing The Conspiracy Doctrine

Limiting the Power of A State To Suppress Civil

Rights Boycotts Is Not Inconsistent With the

Principle That Federal Civil Rights Laws and

Remedies Should Be Broadly Construed ...........

D SE. 1 ne

12

16

19

26

ii

TABLE OF AUTHORITIES

Cases: Page

Acme Markets, Inc. v. Retail Store Employees

Union Local 692, 231 F. Supp. 566 (D. Md.

1964) ...... *r 21

Allee v. Medrano, 416 U.S. 802 (1974) 23

AFL v. Swing, 312 U.S. 321 (194177777 21

Aptheker v. Secretary of State, 378 U.S. 500

„„ 13

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

EEE 16, 27

Brandenburg v. Ohio, 395 U.S. 444 (196997 18

Buckley v. Valeo, 424 U.S. 1 (1976) 7

Cafeteria Employees Union Local 302 v. Angelos,

Z 21

“arey v. Brown, 447 U.S. 455 (1980⸗· 7,17

Curroll v. President and Commissioners of Prin-

cess Anne, 393 U.S. 175 (196 18, 21, 27

Chaplinsky v. New Hampshire, 315 U.S. 568

1 18

Citizens Against Rent Control v. City of Berke-

ley, 50 U.S.L.W. 4071 (U.S., Dec. 14, 1981)...... 5,7

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

. - 22

Consolidated Edison Co. v. Public Service Commis-

sion, 447 U.S. 530 (1980) . 17, 28

Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961) .......... 6, 7, 12

Elfbrandt v. Russell, 384 J . 11 (1966) 13, 15

Enterprise Window Cleaning Co. v. Slowuta, 299

N.Y. 286, 86 N. E. 2d 750 (19499999) 21

Garrison v. Louisiana, 379 U.S. 64 (1964) 7

General Building Contractors Association v. Penn-

splvania, No. 9 —5ðĩ 3, 26, 28

Gertz v. Welsh, 418 U.S. 323 (1974) ...................... 18

Gomez v. Toledo, 446 U.S. 635 (1980: 27

Haddock v. Stewart, 232 Md. 139, 192 A.2d 105

emen a eee eee 24

Hague v. CIO, 307 U.S. 496 (1939) ...............--..--... 23

iii

TABLE OF AUTHORITIES—Continued

Page

Hall v. Hawaiian Pineapple Co., 72 F. Supp. 533

SE, Sees Sa 22

Healy v. James, 408 U.S. 169 (1972) ..................--.. 14

Hearn Department Stores, Inc. v. Livingston, 282

A.D. 480, 125 N.Y.S.2d 187 (1953 21

Henry v. First National Bunk, 595 F.2d 291 (5th

Cir. 1979), cert. denied, 444 U.S. 1074 (1980).. 8,21

Hickman v. Taylor, 170 F.2d 327 (3d Cir. 1948),

cert. denied, 336 U.S. 906 (1949) -..................... 24

International Ass’n of Carpenters of America,

Local 213 v. Sharp, 202 S.W.2d 506 (Tex. Civ.

App. 1947) — See Se er 21

James v. Evans, 149 F. 136 (3d Cir. 190) 24

Keyishian v. Board of Regents, 385 U.S. 589

KK WWPP— GGG 14, 15

Krulewitch v. United States, 336 U.S. 440 (1949) 11

Local 858, Hotel Restaurant Emplo: ees Interna-

tional Alliance v. Jiannas, 211 Ark. 352, 200

SS 4 Qf 8: Ee a ee 20

Louisiana v. United States, 380 U.S. 145 (1965).. 27

Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969) .. 12, 19,

21

Mason and Dizon Lines, Inc. v. Odom, 193 Ga. 471,

III . 20

Meltez, Inc. v. Livingston, 145 N. V. S. 2d 858 (Sup.

1» 21

Milk Wagon Drivers Local 753 v. Meadowmoor

Dairies, Inc., 312 U.S. 287 (19417 19, 20, 21, 22

Missouri v. National Organization for Women, 620

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

— . 4, 6, 12

Missouri Cafeteria, Inc. v. McVey, 362 Mo. 583,

II. .. ——L—K, 20

Monell v. New York City Department of Social

Services, 436 U.S. 658 (1979)))))) 23

Moore v. City Dry Cleaners & Laundry, Inc., 41

eee 20

NAACP v. Alabama, 357 U.S. 449 (1958 15

iv

TABLE OF AUTHORITIES—Cont: nued

Page

NAACP v. Button, 371 U.S. 415 (1963) -......... 7, 8, 18, 27

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

ES 16

New York Times v. Sullivan, 376 U.S. 254 (1964).. 15, 25

New York Times v. United States, 403 U.S. 713

(1971) (per euriags) 2 ——————— 16

Noto v. United States 267 JJ. S. 290 (196175 13

Organization For A betier Austin v. Keefe, 402

. 17

Police Department v. Mosley, 408 U.S. 92 (1972). 17

Potter v. Houston Gulf Coast Building Trades

Council, 482 F.2d 837 (5th Cir. 1973 22

Rizzo v. Goode, 423 U.S. 362 (1976) ...................... 23

Rosen v. North Carolina, 345 F. Supp. 1364 (W. D.

EA ee 22

Roth v. United States, 354 U.S. 476 (19577 7

Scales v. United States, 367 U.S. 203 (1961) ........ 13

Shelton v. Tucker, 364 U.S. 479 (19600: 25

Smith v. F & C Engineering Co., 225 Ark. 688,

285 S. W. ad 100 (1956) 21

Smith v. Grady, 411 F.2d 181 (5th Cir. 1969) 22

South Shore National Bank v. Donner, 104 N.J.

Super. 169, 249 A.2d 25 (1969) )- 24

Southern Christian Leadership Conf. v. A. G. Corp.,

241 So.2d 619 (Miss. 1970) 6

Steiner v. Long Beach Local 128, Oil Workers Int'l

Union, 19 Cal. 2d 676, 123 P.2d 20 (1942) 20

Sullivan v. Little Hunting Park, 396 U.S. 229

(1969) TSS ONO A a 28

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

e 21

Thomas v. Collins, 323 U.S. 516 (1945 7

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

United Electrical Workers of America v. Baldwin,

67 F. Supp. 235 (D. Conn. 1946) _...................... 22

United Farm Workers Organizing Comm. v. La

Casita Farms, Inc., 489 S.W.2d 398 (Tex. Civ.

App. 1968, writ ref’d n. re.) 21

*

TABLE OF AUTHORITIES—Continued

Page

United Mine Workers v. Gibbs, 383 U.S. 715

EEC 9

United Mine Workers v. Pennington, 381 U.S. 657

3c 12

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

1972), cert. denied, 410 U.S. 970 (1973 14

United States v. Robel, 389 U.S. 258 (1967) 13

United States v. Spock, 416 F.2d 165 (1st Cir.

RSE Te ile Sa ee 14, 15

Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077,

35 L. R. A. 722, 57 Am. St. Rep. 443 (1896) 10

Waldbaum, Inc. v. United Farm Workers, 383

N.Y.S.2d 957 (Sup. Ct. 1976) 20

Yates v. United States, 354 U.S. 298 (1957) .......... 25

Yellow Cab Co. v. Production Workers Union, 92

Ill. App. 3d 355, 416 N.E.2d 48 (1980) 20

Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957).. 21

Constitutions and Statutes:

U.S. Const. First AMENDMENT .............................. passim

r ...... 17

ES en ee 28

42 U.S.C. § 1983 wit 23

Books and Articles:

J. Bass, UNLIKELY HEROES (1981) 8 5

A. BENTLEY, THE PROCESS OF GOVERNMENT

. 5

8 HoOLDSWoRTH, HISTORY OF ENGLISH LAwW (2d ed.

1937) 1 1 11

C. LINDBLOM, POLITICS AND MARKETS: THE

WORLD’s POLITICAL-ECONOMIC SYSTEMS (1977).. 3

Note, The Chilling Effect in Constitutional Law, 69

CoLuM.L. REV. 808 (1969))))))9)99„ 15

Note, The Common-Law and Constitutional Status

of Anti-Discrimination Boycotts, 66 YALE L.J.

. 9

Note, 33 TULANE L. REv. 410 (1959999 9

vi

TABLE OF AUTHORITIES—Continued

Page

Note, Civil Conspiracy: A Substantive Tort? 59

oe 10

Note, Civil Conspiracy and Interference With Con-

tractual Relations, 9 LoYOLa (LA.) L. REv. 302

(1975) 11

P. ODEGARD, PRESSURE POLITICS—THE STORY OF

THE ANTI-SALOON LEAGUE (1928) 5

W. Prosser, Torts (4th ed. 1971) 24

F. ReaD & L. McGoucu, Let THEM BE JUDGED:

THE JUDICIAL INTEGRATION OF THE DEEP SOUTH

r 6

R. SALISBURY, INTEREST GROUP POLITICS IN AMER-

I 5

R. Salisbury, “Interest Groups,” 4 HANDBOOK OF

POLITICAL SCIENCE (Greenstein and Polsby, eds.

EE 5

Sandifer 4 Smith, The Tort Suit For Damages:

The New Threat To Civil Rights Organizations,

41 BROOKLYN L. REv. 559 (1975) ~...................... 5, 9

Sayre, Labor and the Courts, 39 YALE L. J. 682

(1930) 9

Turner, The Definition of Agreement Under The

Sherman Act, 75 HARv. L. REv. 655 (196257 12

D. Vodkl., LOBBYING THE CORPORATION; CITIZEN

CHALLENGES TO BUSINESS ACTIVITY (1978) ...... 3

S. & B. Wess, History or TRADE UNIONISM

EEL eae St eR 9

H. ZEIGLER, INTEREST GROUPS IN AMERICAN SOCcI-

I I ...... 5

15A C.J.S. Conspiracy (1967) ũ 7) 10

16 Am. JuR. 2d Conspiracy (196999979 10

RESTATEMENT OF TORTS (2d) 22, 24, 25

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-202

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

BRIEF AMICI CURIAE OF THE

AMERICAN CIVIL LIBERTIES UNION

AND THE NATIONAL ORGANIZATION FOR WOMEN

INTEREST OF AMICI

The interest of amici appears in the foregoing motion.

STATEMENT

In 1966, the NAACP and others in Port Gibson,

Mississippi, organized a boycott of white merchants to

bring public attention to a long series of grievances suf-

fered by black residents of that area and to exert pres-

sure for reform. More than three years later, a group

of those merchants brought this action alleging that the

boycott was an illegal conspiracy under state law. Evi-

dence showed that, in addition to the usual picketing and

other peaceful activity, there had from time to time been

acts of violence that coerced some black residents to re-

frain from doing business with the white merchants.

There was no proof that the violence was directed or

condoned by the NAACP. The trial court, however, is-

2

sued a broad injunction not only against further violence

but also against all peaceful picketing and advocacy

aimed at persuading local residents not to trade at the

white-owned shops. The Mississippi Supreme Court af-

firmed and also held that the NAACP and numerous

individuals who had engaged only in peaceful picketing

were jointly and severally liable in damages for all

losses the plaintiffs incurred because of the boycott,

whether or not traceable to violence. App. la-35a, 393

So. 2d 1290 (Miss. 1980).

SUMMARY OF ARGUMENT

This case gives the Court an opportunity to declare

an important principle of constitutional law: That a

civil rights boycott is to be judged, not under standards

arising from the law of conspiracy, but instead as ac-

tivity which lies at the core of the First Amendment’s

protection of free speech and free association for politi-

cal ends.

In this brief, amici will first define a civil rights boy-

cott—an established and important means of associating

for the expression of political viewpoints. We will dem-

onstrate that, like other methods of exercising this fun-

damental right, civil rights boycotts are essential to

self-government in a society in which not all citizens

have a high degree of access to the political decision-

making process. We will then show that concepts of

common law conspiracy can play no role in judging these

activities, even when violence occurs, for those concepts

not only raise troublesome due process questions but also

do not refiect established First Amendment principles.

We will show that tort law can be accommodated to

those principles through the application of familiar doc-

trines (other than the law of conspiracy) that have been

endorsed by the American Law Institute and that identify

the persons who are and should be liable for violent acts.

Finally, we will show that the principle we advocate is in

1 Citations to “App.” are citations to the Appendix to the Peti-

tion for Certiorari.

no way disminished or undermined by the very different

rule of law, which forms the basis for the lower court

decision in General Building Contractors v. Pennsylvania

(No. 81-280), that remedial civil rights laws should be

read expensively to accomplish their purpose as effectively

as possible.

ARGUMENT

I. A Civil Rights Boycott Is At the Core of First Amend-

ment Protection.

A. A Civil Rights Boycott Is A Form of Political

Speech and Association.

It is important, at the outset, to define with care what

is involved in this case—a civil rights boycott—for a

loose definition, especially one drawn from the realm of

antitrust, masks the important constitutional issues.

Although sometimes described as a combination to with-

hold a business relationship, a civil rights boycott com-

bines three essential elements: (1) advocacy that (2)

persons choose what or where to buy (3) to promote

social justice.

Freedom of choice is the governing rule of the market-

place. Ever since colonial times, Americans have exer-

cised this freedom to promote social justice. People vote

not only with their ballots but also with their dollars

and their personal conduct. See, e.g., C. LINDBLOM, POLI-

TICS AND MARKETS: THE WORLD’S POLITICAL-ECONOMIC

SysTEeMs 144 (1977).

It is just such reasons that led colonial merchants to

boycott English goods until the Stamp and Townsend

Acts were repealed. In modern times people have refused

to ride buses in Montgomery, Alabama, as a protest

against racial discrimination; refused to buy table grapes

or lettuce, or Farah slacks, or J.P. Stevens branded linens,

out of sympathy with workers seeking fair treatment; re-

fused to buy Saran Wrap made by a company that also

manufactured napalm;? and refused to attend meetings

2 See D. VOGEL, LOBBYING THE CORPORATION; CITIZEN CHALLENGES

To BusINEss ACTIVITY 43-46 (1978).

4

or conventions held in states that have not ratified the

Equal Rights Amendment.’ Religious groups today urge

Americans to refuse to purchase goods advertised on tele-

vision programs which feature sex and violence. The list

is nearly endless.

Some of these activities occur at a single point in time

and place; others are spread over large areas and

many months or years. Sometimes the participants are

constant and well defined, but often the composition of

the group fluctuates as new adherents join while others

lose interest.

As with ballots and other forms of political expres-

sion, these plainly lawful activities are more effective

when they are the acts of many rather than the few.

Here advocacy enters. Civil rights boycotts are some-

times wholly spontaneous. More often they are stimulated

by an advocate who makes the point that large-scale re-

fusals to buy or travel can communicate a political mes-

sage. And if the boycott attracts large numbers of par-

ticipants, the reason lies in their sympathy with the mes-

sage and with their determination, often at considerable

personal inconvenience, to demonstrate the depth of their

support. Thus it is not “conspiracy”, in any familiar

meaning of the offensive term, but shared political beliefs

that bring together the participants in a civil rights boy-

cott. As the Court said just the other day:

“We begin by recalling that the practice of persons

sharing common views banding together to achieve

a common end is deeply embedded in the American

political process. The 18th Century Committees of

Correspondence and the pamphleteers were early ex-

amples of this phenomena and the Federalist Papers

were perhaps the most significant and lasting ex-

ample. The tradition of volunteer committees for col-

lective action has manifested itself in myriad com-

* This was the “ERA Boycott” which was unsuccessfully attacked

in Missouri v. National Org. for Women, 620 F.2d 1301 (8th Cir.),

cert. denied, 449 U.S. 842 (1980).

5

munity and public activities; in the political process

it can focus on a candidate or on a ballot measure.

Its value is that by collective effort individuals can

make their views known, when, individually, their

voices would be faint or lost.” Citizens Against Rent

Control v. City of Berkeley, 50 U.S.L.W. 4071, 4072

(U.S., Dec. 14, 1981).

The importance of the civil rights boycott as a form of

political association and expression arises from the nature

of the politieial process itself. It has long been recognized

that many government decisions result from the inter-

action of various “interest groups.”* An interest group

may be defined as any group with a shared political belief

or goal. The group may be relatively permanent, like the

National Association of Manufacturers or the National

Council of Churches, or it may be transitory, such as

when several different groups form a temporary coalition

around a specific issue.“

A boycott can be an effective tool for communicating the

group’s message. It has special value to groups that do

not have a high degree of access to the decision-making

process (and blacks in Mississippi in 1966 certainly fit that

description *). It also has special value when a group is

* See, e.g., A. BENTLEY, THE PROCESS OF GOVERNMENT (1908) ;

P. ODEGARD, PRESSURE POLITICS—THE STORY OF THE ANTI-SALOON

Leacue (1928); H. ZEIGLER, INTEREST GROUPS IN AMERICAN

SocteTy (2d ed. 1972); R. SALIsBuRY, INTEREST GRouP POLITICS iN

Aurica (1970); R. Salisbury, “Interest Groups,” 4 HANDBOOK

OF POLITICAL SCIENCE (Greenstein and Polsby, eds. 1975).

Interest groups are sometimes referred to disparagingly as

“special interest groups,” see, e. g., Citizens Against Rent Control

v. City of Berkeley, supra, 50 U.S.L.W. at 4072, but such labels

are of no assistance in understanding or analyzing the pertinent

issues.

In the mid-60’s, Port Gibson (as well as the whole State of

Mississippi) represented a classic case of segregation and dis-

crimination.” Sandifer & Smith, The Tort Suit for Damages: The

New Threat To Civil Rights Organizations, 41 BROOKLYN L. REV.

559-60 (1975). See J. Bass, UNLIKELY HEROES, 172-200 (1981); F.

6

seeking to change the status quo, which both inertia and

entrenched interests will tend to maintain. Further, a

boycott conveys a particular kind of political message:

that a significant number of persons feel frustrated by

their lack of political access and feel strongly enough

about their goal to change their buying patterns, per-

haps at some cost and inconvenience, such as by driving

to the next county for groceries and other necessities.

This is an important message, for the law-maker gives

consideration not only to technical arguments for or

against a proposed measure but also to the depth of

support or opposition it enjoys.’

READ & L. McGouGcu, LET THEM BE JuDGED: THE JUDICIAL INTE-

GRATION OF THE DEEP SOUTH 195-248, 353-371 (1978).

Some civil rights boycotts are labelled as “secondary” boy-

cotts, implying that they aim at merchants who have no power

to meet the boycotters’ demands and thus avoid economic harm.

See, e.g., App. 44b-51b; App. 19a, 393 So. 2d at 1299; Southern

Christian Leadership Conf. v. A.G. Corp., 241 So. 2d 619, 624 (Miss.

1970) ; Missouri v. National Org. for Women, supra, 620 F.2d at

1312. This approach misses the point (and the court below did

not view the label as significant in this case). The objective of a

civil rights boycott like the one in Port Gibson is often to protest

a discriminatory system, composed of both political and economic

elements. (Of course the objective may be to protest unfair prac-

tices of the merchants themselves, in which case the merchants

are precisely the ones who can respond to the demands.) More-

over, it is often the case that the merchants whose trade is shunned

are influential members, not to mention beneficiaries, of the political

structure about which the boycotters are complaining. Finally, one

objective of a boycott is to draw attention to the conditions about

which the boycotters are complaining, and as this Court has said:

“It is inevitable, whenever an attempt is made to influence

legislation by a campaign of publicity, that an incidental effect

of that campaign may be the infliction of some direct injury

upon the interests of the party against whom the campaign is

directed. To hold that the knowing infliction of such in-

jury renders the campaign itself illegal would thus be tanta-

mount to outlawing all such campaigns.”

Eastern Railroad Presidents Conference v. Noerr Motor Freight,

Inc., 365 U.S. 127, 148-44 (1961), quoted in Missouri v. National

Org. for Women, supra, 620 F.2d at 1315 (footnote omitted).

7

Thus, it can readily be seen that a civil rights boycott

is the very essence of expression and association for

political ends.

B. Protection of Political Speech and Association Is

Central to the First Amendment.

This Court has long held that “speech concerning pub-

lic affairs is more than self-expression; it is the essence

of self-government.” Garrison v. Louisiana, 379 U.S.

64, 74-75 (1964). Political expression makes possible an

“unfettered interchange of ideas for the bringing about

of political and social changes desired by the people.”

Roth v. United States, 354 U.S. 476, 484 (1957).

“The Court has long viewed the First Amendment

as protecting a market place for the clash of different

views and conflicting ideas. That concept has been

stated and restated almost since the Constitution was

drafted.” Citizens Against Rent Control v. City of

Berkley, supra, 50 U.S.L.W. at 4072.

And because the First Amendment serves as a “charter

for government” and not merely as “an institution for

learning,” the protection of the First Amendment is

nowhere more necessary than with respect to speech that

promotes political action. Thomas v. Collins, 323 U.S.

516, 587 (1945); see NAACP v. Button, 371 U.S. 415,

429 (1963).

The Court has also recognized that political expres-

sion covers a broad range of actions and thus has

granted First Amendment protection to such diverse

activities as expenditures in support of political issues or

candidates, Citizens Against Rent Control v. City of

Berkeley, supra, and Buckley v. Valeo, 424 US. 1

(1976) ; union organizing, Thomas v. Collins, 323 U.S.

516 (1945); advertising and lobbying campaigns in sup-

port of legislation, Eastern Railroad Presidents Con-

ference v. Noerr Motor Freight, Inc., 365 U.S. 127

(1961) ; litigation, NAACP v. Button, supra, and picket-

ing, Carey v. Brown, 447 U.S. 455 (1980). In Carey,

8

the Court held that public protests over “important eco-

nomic, social, and political subjects” such as the racial

segregation involved in the case before it reflect “ an

exercise of . . . basic constitutional rights in their most

pristine and classic form,’” which have “always rested

on the highest rung of the hierarchy of First Amend-

ment values... 447 U.S. at 466-67 (emphasis sup-

plied). And in NAACP v. Button, supra, in striking

down a statute construed to prohibit the NAACP from

encouraging and supporting litigation to challenge racial

discrimination, the Court said:

“Groups which find themselves unable to achieve

their objectives through the ballot frequently turn to

the courts. ... For such a group, association for

litigation may be the most effective form of political

association.” 371 U.S. at 429, 431.

There can be no doubt that it is just such political

expression that is under challenge here. Although civil

rights boycotts, like civil rights picketing or litigation,

involve conduct, their essence is speech and association

to promote social justice: advocating that others asso-

ciate in a common refusal to deal with particular prod-

ucts, individuals, or organizations in order to achieve

racial equality. The purpose of the boycott activities

enjoined by the Mississippi state courts, for example,

was “to protest racial discrimination by the merchants

and city government of Port Gibson.” Henry v. First

National Bank, 595 F.2d 291, 302 (5th Cir. 1979),

cert, denied, 444 U.S. 1074 (1980). As such the boycott

follows in a long tradition of group protest activities

aimed at achieving fundamental political reforms, which

represent “essential political speech lying at the core of

the First Amendment.” Id. at 303.“

8 The Fifth Circuit’s holding in Henry that the Port Gibson

boycott is protected by the First Amendment was the basis for its

decision that petitioners could appeal within the state court sys-

tem without posting bond. In view of the importance of First

Amendment principles to the proper resolution of this case, it is

9

II. Civil Rights Boycotts Should Not Be Judged As

Common Law Conspiracies.

“The tort of ‘conspiracy’ is poorly defined, and

highly susceptible to judicial expansion; its relatively

brief history is colored by use as a weapon against

the developing labor movement.”

So said this Court fifteen years ago in reversing a

damages award against the United Mine Workers that

was in part based upon an alleged “unlawful conspiracy

and an unlawful boycott . . . to maliciously, wantonly

and willfully interfere with [plaintiffs’] contract of em-

ployment and with his contract of haulage” and upon

proof that two days of localized violence marked the be-

ginning of a nine-month period of peaceful picketing at

a mine. United Mine Workers v. Gibbs, 383 U.S. 715,

718-19, 732-33 (1966) .°

The type of “conspiracy” involved in Gibbs and in this

case was not an agreement to accomplish an unlawful

objective. In both cases, the objectives of the agreement

were entirely lawful. What triggered state-court inter-

vention was the unlawful means that some persons had

employed to further the common—and lawful—objective.

Notably, to impose liability the unlawful means need

not have been part of the agreed plan to accomplish the

astonishing that the Supreme Court of Mississippi refers to Henry

only in its description of the proceedings to date and makes no

reference to the Fifth Circuit’s constitutional holding.

The Court’s reference to the tort having been invoked to combat

the labor movement is of course entirely accurate. See S. & B.

WEBB, HISTORY OF TRADE UNIONISM 597-98 (1920); Note, 33

TULANE L. Rev. 410, 411 (1959); Sayre, Labor and the Courts, 39

YALE L.J. 682, 686-87 (1930).

In more recent times the same or a similar theory has been em-

ployed to suppress civil rights boycotts. Sandifer & Smith, The

Tort Suit For Damages: The New Threat To Civil Rights Organi-

zations, 41 BROOKLYN L. REV. 559, 561-64 (1975); Note, The

Common-Law and Constitutional Status of Anti-Discrimination

Boycotts, 66 YALE L.J. 397, 397-98 (1957).

10

objective; it is enough that at some point in carrying

out the agreed plan some member of the group decides to

employ unlawful activity to further the objectives of the

plan. App. 23a, 393 So. 2d at 1301; see 16 Am. JuR. 2d

Conspiracy, § 49, p. 267 (1969); 15A C. J. S. Conspiracy,

88100), 4 (1967). Indeed, in several states the un-

lawful means need not be unlawful standing alone but

instead may consist of acts that would be entirely law-

ful if committed by a single individual.“ Note, Civil

Conspiracy: A Substantive Tort?, 59 B.U.L. REv. 921,

926 (1979). Once there is proof of the agreement and

the use of “unlawful” means, all members of the “con-

spiracy”—whether or not they participated in the un-

lawful activity, condoned it or even knew about it—are

jointly and severally liable for all injuries caused, even

those that result from lawful activity engaged in by the

“conspiracy.” 15A C. J. S. Conspiracy, § 18, pp. 656-58.

As this Court said in Gibbs:

“Under the state law, it would not have been relevant

that the union had not actually authorized, par-

ticipated in or ratified the particular violence or even

the general use of violence. It would only be neces-

sary to show a conspiracy in which the union had a

part, and to show also that those who engaged in the

violence were members of the conspiracy and their

10 Mr. Justice Holmes, as a member of the Supreme Judicial

Court of Massachusetts, expressed strong objections to this notion

in his famous dissent in Vegelahn v. Guntner, 167 Mass. 92, 107-

08, 44 N.E. 1077, 1081, 35 L.R.A. 722, 727, 57 Am. St. Rep. 443,

448 (1896), when he said:

“But there is a notion, which latterly has been insisted on

a good deal, that a combination of persons to do what any one

of them lawfully might do by himself will make the otherwise

lawful conduct unlawful. It would be rash to say that some

as yet unformulated truth may not be hidden under this

proposition. But in the general form in which it has been pre-

sented and accepted by many courts, I think it plainly untrue,

both on authority and principle.”

11

acts were related to the conspiracy’s purpose.” 383

US. at 733.4

Thus, virtually any kind of group activity could be

labelled as a common-law conspiracy if any member of

the group commits an “unlawful” act in furtherance of

the group’s purpose. As Mr. Justice Jackson warned, in

his concurring opinion in Krulewitch v. United States,

336 U.S. 440, 446 (1949), the law of criminal conspiracy

represents “a serious threat to fairness in our adminis-

tration of justice.” He called the crime of conspiracy

“so vague that it almost defies definition.” He continued:

Even when appropriately invoked, the looseness

and pliability of the doctrine present inherent

dangers which should be in the background of ju-

dicial thought wherever it is sought to extend the

doctrine to meet the exigencies of a particular case.”

336 U.S. at 449."

Moreover, a conspiracy can be proved “by evidence that

is admissible only upon assumption that conspiracy ex-

isted.” 336 U.S. at 453.

When the conspiracy doctrine is applied to the law of

restraint of trade, there are strong policy considerations

which may overcome these due process obstacles. The

operative principle for business is that competitors are

supposed to compete, not collaborate, and to advance their

individual profit-seeking objectives. The law appropri-

11 “By pleading conspiracy, the plaintiff implicates each defendant

who merely participates in the common design. The act or declara-

tion of one defendant in carrying out the wrong is the act or dec-

laration of all, and thus persons who merely agree to the plan or

design may be held liable for the acts of others even if they in fact

commit no overt act, and gain no benefit therefrom.” Note, Civil

Conspiracy and Interfererce With Contractual Relations, 9 LOYOLA

(La.) L. Rev. 302, 310-11 (1975).

12“The modern crime of conspiracy is almost entirely the result

of the manner in which conspiracy was treated by the court of

Star Chamber,” which flourished in England in the 17th Century.

8 HOLDSworRTH, HIsTORY OF ENGLISH LAW 379 (2d ed. 1937).

12

ately intervenes when that important principle is not

followed. Indeed, the existence of a conspiracy may more

easily be proved under the antitrust laws than in other

areas simply because business actions that are not con-

sistent with the actors’ objectives as competitors produce

a strong inference of conspiratorial behavior. See e.g.,

Turner, The Definition of Agreement Under the Sherman

Act, 75 Harv. L.REV. 655, 658-59 (1962).

Application of the conspiracy doctrine to suppress a

civil rights boycott, however, cannot proceed on any such

principle.“ There is no policy that favors competition in

pursuit of civil rights; to the contrary, collaboration is not

only permitted but is encouraged and protected—by the

First Amendment. As we have shown, a civil rights boy-

cott is a quintessential exercise of the right to associate

and to speak on matters of public importance. Judging

such activities as conspiracies at common law not only

raises serious due process concerns but also results in

(1) imposing tort liability on individuals solely because

of their politcial associations and (2) injunctions that

are overbroad, content-based, prior restraints on speech.

A. Imposing Liability On An Individual Solely Be-

cause of Political Association With Others Violates

the First Amendment.

In a long line of cases concerning actions against those

associated with political organizations, this Court has con-

sistently held that mere association with the organization

cannot be the basis of criminal sanction or other adverse

action by the government, even where, unlike here, the

organization has unlawful aims.

18 The court below acknowledged that civil rights activity may

not be judged under restraint-of-trade principles, citing United

Mine Workers v. Pennington, 381 U.S. 657 (1965), Eastern R.R.

Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961),

Missouri v. National Org. for Women, 620 F.2d 1301 (8th Cir.),

cert. denied, 449 U.S. 842 (1980), and Machesky v. Bizzell, 414

F.2d 283 (5th Cir. 1969). App. 22a, 393 So. 2d at 1301.

13

The principle was first clearly established in Scales v.

United States, 367 U.S. 203 (1961), and Noto v. United

States, 367 U.S. 290 (1961), involving criminal prosecu-

tions for membership in the Communist Party under the

Smith Act. Recognizing that the Communist Party had

both legal and illegal aims, the Court in those cases held

that proof of (1) the organization’s illegal aims and

(2) the individual’s knowledge of and specific intent to

further those aims, were necessary for conviction under

the Act.“ And whether the defendants had the requisite

illegal intent

there is a danger that one in sympathy with the

legitimate aims of such an organization, but not spe-

cifically intending to accomplish them by resort to

violence, might be punished for his adherence to law-

ful and constitutionally protected purposes, because of

other and unprotected purposes which he does not

necessarily share.” Noto v. United States, supra, 367

US. at 299-300.

The Court has adhered to this rigorous two-part test

again and again in striking down statutes and rules be-

cause they unnecessarily infringed First and Fifth

Amendment rights. See, e.g., Aptheker v. Secretary of

State, 378 U.S. 500 (1964) (invalidating a regulation

denying passports because of membership in a “sub-

versive” organization as violating the Fifth Amendment

right to travel and the First Amendment rights to speak

and associate freely where there was no showing of

specific intent to further unlawful aims of organization) ;

Elfbrandt v. Russell, 384 U.S. 11 (1966) (striking down

a statutorily required oath binding state employees not

to become members of the Communist Party, again where

there was no showing of specific intent to further illegal

action); United States v. Robel, 389 U.S. 258 (1967)

14 Because the Court in Scales construed the Smith Act as re-

quiring these showings, it found that the Act passed muster under

the First and Fifth Amendments. 367 U.S. at 224-30.

14

(holding unconstitutional a statute declaring it illegal

for any member of a Communist organization to be

employed at a defense facility). The same test has been

applied to reverse conspiracy convictions based on the

defendants’ association with a group that urged burning

of draft cards to protest the Vietnam war, United

States v. Spock, 416 F.2d 165, 172-73 (ist Cir. 1969),

and based on association with organizers of protest ac-

tivities at the time of the 1968 Democratic convention

in Chicago, United States v. Dellinger, 472 F.2d 340,

392-93 (7th Cir. 1972), cert. denied, 410 U.S. 970

(1973).

The Court has not limited the application of this strict

two-part test to criminal cases. In Keyishian v. Board

of Regents, 385 U.S. 589, 607-09 (1967), the Court de-

clared unconstitutional a state law that disqualified from

state employment any person who was a member of a

group that advocated the unlawful overthrow of the gov-

ernment and that also required teachers, on pain of

dismissal, to pledge that they would never become mem-

bers of the Communist Party. More recently, in Healy

v. James, 408 U.S. 169 (1972), the Court held that a

state college’s denial of recognition to a student political

organization violated the students’ First Amendment

freedom of association. At issue, inter alia, was whether

the assertedly violent and illegal goals of the national

organization of Students for a Democratic Society could

be imputed to the local chapter. The Court, noting that

it “has consistently disapproved governmental action im-

posing criminal sanctions or denying rights and privi-

leges solely because of a citizen’s association with an un-

popular organization,” found that the State had failed to

meet its “burden of establishing a knowing affiliation

with an organization possessing unlawful aims and goals,

and a specific intent [by the local chapter] to further

those illegal aims.” 408 U.S. at 185-86.

These cases all point to the conclusion that Govern-

ment may not, through statutes, regulations, or court

orders, penalize an individual for unlawful acts com-

15

mitted in furtherance of lawfu! political objectives

merely because of the individual’s association with those

objectives.“ A fundamental reason is that, where po-

litical association protected by the First Amendment is

involved, any broader standard of liability can make

persons wary of engaging in lawful political activity.

Keyishian v. Board of Regents, supra, 385 U.S. at 604

(“[{t]he danger of that chilling effect upon the exercise

of First Amendment rights must be guarded against by

sensitive tools“); Elfbrandt v. Russell, supra, 384 U.S.

at 18 (“public employees of character and integrity [re-

quired to take oath] may well forgo their calling rather

than risk prosecution for perjury or compromise their

commitment to intellectual and political freedom“); see

also NAACP v. Alabama, 357 U.S. 449, 463 (1958)

(compelled disclosure of membership list “may induce

members to withdraw from the Association and dissuade

others from joining it because of fear of exposure of

their beliefs shown through their associations and of the

consequences of this exposure”; United States v. Spock,

supra, 416 F.2d at 188 (Coffin, J., dissenting in part) ;

Note, The Chilling Effect in Constitutional Law, 69

CoLUx. L. REV. 808 (1969) .**

For this reason alone, the no-fault liability imposed

upon participants in a civil rights boycott—which has

only lawful aims—through application of the common

law conspiracy doctrine cannot withstand constitutional

scrutiny.

15 Although the injunction and damages award against petitioners

in this case were entered in a private action, the First Amend-

ment principles discussed in the text apply with full force. See

New York Times v. Sullivan, 376 U.S. 254, 265 (1964).

16 So important is the need to avoid chilling protected activity

that a person whose own activity could lawfully be proscribed by a

narrowly drawn statute may nevertheless challenge the consti-

tutionality of a broadly drawn statute “on its face,” i.e., because

the statute violates the First Amendment rights of others. E. g.,

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

16

B. An Injunction That Prohibits Advocacy and Picket-

ing Is An Impermissible Prior Restraint and An

Unconstitutionally Overbroad, Content-Based Re-

striction on Speech.

In addition to holding petitioners herein jointly and

severally liable for all damages incurred by the mer-

chants as a result of the boycott, the Mississippi Supreme

Court upheld in every respect the lower court’s injunc-

tion prohibiting all further boycott activity, peaceful or

otherwise. As is typical in such cases, the injunction pro-

hibited “the defendants and all persons confederating

with them” from undertaking a wide array of boycott-

related activities, including:

“2. Persuading, soliciting, advising ... any per-

son to withdraw and withhold his or her patronage

or to cease trading with the above-named

complainants.”

and

“6. Picketing or patrolling the premises of any of

the above-named complainants... .” (App. 19g

It is a long-established principle that any prior re-

straint on expression bears “a heavy presumption against

its constitutional validity.” Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 70 (1963). The Court has consistently

applied this policy to prior judicial restraints. Thus, in

New York Times v. United States, 403 U.S. 713 (1971)

(per curiam), the Court held that the United States

could not obtain injunctions against publication of the

Pentagon Papers by the New York Times and the Wash-

ington Post. Similarly, in Nebraska Press Association v.

Stuart, 427 U.S. 539 (1976), the Court lifted a “fair

trial gag order” imposed by a state court judge, stating

(per Chief Justice Burger) :

“The thread running through all these [cited] cases is

that prior restraints on speech and publication are

the most serious and least tolerable infringement on

First Amendment rights.” 427 U.S. at 559.

17

And in Organization For A Better Austin v. Keefe, 402

U.S. 415 (1971), the heavy presumption against prior

restraints was invoked by this Court in vacating a state

court injunction prohibiting picketing and distribution

of leaflets.*”

It necessarily follows that injunctions against civil

rights boycotts, such as the injunction issued in this case,

are presumed invalid. But there is no need to rely on

presumptions, for injunctions like these contain two

fundamental infirmities.

One is the unjustified restriction of speech based

solely on the content of the message. The injunction

prohibits all picketing of respondents’ premises, and all

“persuading, soliciting, advising” anyone to cease trad-

ing with respondents, although those activities had only

a civil rights purpose.

It is clear that “government has no power to restrict

expression because of its message, its ideas, its subject

matter, or its content ... Police Department v.

Mosley, 408 U.S. 92, 95 (1972). See also Consolidated

Edison Co. v. Public Service Commission, 447 U.S. 530, 537

(1980) ; Carey v. Brown, 447 U.S. 455, 461-62 (1980).

An injunction or other government action may regulate

the time, place or manner of the persuasion and advice

to which it is addressed. 447 U.S. at 535-36. The in-

junction involved here, however, does not even pretend

to be a regulation of time, place and manner. Instead,

17 Although the injunction at issue was termed “temporary” by

the state court, it had already been in effect for over three years

by the time of this Court’s decision, and the Court made clear, in

deciding that it had jurisdiction under 28 U.S.C. § 1257, that the

lower court would likely issue a permanent injunction after a full

trial through application of the same standards employed in issuing

the injunction under review.

18In Mosley, the Court invalidated an ordinance that prohibited

picketing in the vicinity of a school but allowed labor union picket-

ing of a school that was involved in a labor dispute. It was there-

fore not content-neutral.

18

it forbids altogether the communication of a particular

message. Moreover, the content of that message did not

constitute a clear and present danger to the public order,

a defamatory falsehood, or any of the other narrowly

defined content categories which may permissibly be

regulated.“ Rather, as we have shown above, the mes-

sage the civil rights boycotters sought to convey is es-

sential political speech that lies at the core of the First

Amendment.

The second fundamental infirmity in injunctions like

these is their violation of the principle that, when stat-

utes or other government action intrudes into the area of

First Amendment freedoms, “[p]recision of regulation”

is required to ensure that constitutionally protected lib-

erties are not stifled. NAACP v. Button, 371 U.S. 415,

438 (1963). The Court stated in Carroll v. President

and Commissioners of Princess Anre, 393 U.S. 175, 183-

84 (1968) :

“An order issued in the area of First Amendment

rights must be couched in the narrowest terms that

will accomplish the pin-pointed objective permitted by

constitutional mandate and the essential needs of the

public order. In this sensitive field, the State may

not employ ‘means that broadly stifle fundamental

personal liberties when the end, can be more narrowly

achieved.’ [Citation omitted] In other words, the

order must be tailored as precisely as possible to the

exact needs of the case.”

An injunction based upon the common-law conspiracy

doctrine, like the one issued in this case, is bound to

regulate the content of protected speech in an overbroad

manner, for that doctrine sweeps within it all persons

who have actively supported the lawful aims of the “con-

19 See e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (advocacy

directed to and likely to invite or produce imminent lawless action) ;

Gertz v. Welsh, 418 U.S. 323 (1974) (defamation); Chaplinsky v.

New Hampshire, 315 U.S. 568 (1942) (fighting words).

19

spiracy” and makes the entire “conspiracy” subject to

judicial prohibition.

On facts remarkably similar to those of this case, the

Fifth Circuit in Machesky v. Bizzell, 414 F.2d 283 (5th

Cir. 1969), struck down a Mississippi state court in-

junction prohibiting peaceful picketing and other boy-

cott activity directed against white merchants in a small

Mississippi town by blacks protesting racial discrimi-

nation. The boycott at issue had been accompanied by

sporadic violence, including threats against customers

patronizing the white merchants’ stores. In addition to

enjoining force or violence, the state court enjoined

peaceful picketing and loitering or congregating to in-

duce, persuade or coerce persons not to do business with

the complaining merchants. Noting that the injunction

at issue prohibited not only “protected picketing” but

“even speech directed toward the boycott effort,” the

Fifth Circuit stated:

“We hold that the state court injunction here is

constitutionally overbroad in that it lumps the pro-

tected with the unprotected in such a way as to

abridge important public interests in the full dis-

semination of public expression on public issues.”

414 F.2d at 291.

It follows that a broad injunction against a civil

rights boycott cannot be sustained, for it contravenes

fundamental constitutional principles rooted firmly in the

First Amendment.

C. The Meadowmoor Case No Longer Expresses a

Constitutionally Viable Principle.

The Mississippi Supreme Court purports to rely upon

Milk Wagon Drivers Local 753 v. Meadowmoor Dairies,

Inc., 312 U.S. 287 (1941), in imposing sweeping li-

ability upon a large group of defendants who had no

personal involvement in any illegal activity. In Meedow-

moor, the Court held that a labor union and each of its

siz thousand members were properly named defendants

in an action alleging common law conspiracy, and, be-

cause a number of the defendants had engaged in vio-

20

lence, all of them could be subjected to a sweeping in-

junction not only against violence but also against peace-

ful picketing.

There are two problems with relying on Meadowmoor

to support the decision below.

First, it was decided before the Court had developed

the First Amendment principles on which we and the pe-

titioners rely. The Court’s holding is, as we urge here,

inconsistent with fundamental constitutional principles.”

Second, the decision has had unfortunate conse-

quences because of its vagueness: It authorizes an in-

junction barring peaceful picketing and other protected

forms of expression if there has in some ill-defined sense

been “enough” violence that can be linked to the pro-

tected activity. Although a number of state courts have

distinguished Meadowmoor on its facts and rightly per-

mitted the exercise of free expression to continue,” other

state courts, citing Meadowmoor, have relied upon mini-

mal evidence of unlawful conduct as a basis for en-

joining the peaceful exercise of constitutional rights, and

they have done so under an ill-defined conspiracy theory *

2° Meadowmoor has been cited in over 250 reported federal and

state decisions, but until this case none of these decisions (except

those later reversed) had ever enjoined peaceful boycotts, demon-

strations or picketing because of related violence except in the

context of labor union activity.

21 See, e.g., Mason and Dixon Lines, Inc. v. Odom, 193 Ga. 471,

18 S.E.2d 841 (1942) (violence not sufficient to make future

peaceful picketing coercive) ; Yellow Cab Co. v. Production Work-

ers Union, 92 Ill. App. 3d 355, 416 N.E.2d 48 (1980) (violence

not shown to be enmeshed with picketing); Missouri Cafeteria,

Inc. v. McVey, 362 Mo. 583, 242 S.W.2d 549 (1951) (violence not

sufficient to justify injunction against picketing); Waldbaum,

Inc. v. United Farm Workers, 383 N.Y.S.2d 957 (Sup. Ct. 1976)

(violence does not meet Meadowmoor standard).

22 See, e.g., Local 858, Hotel Restaurant Employees International

Alliance v. Jiannas, 211 Ark. 352, 200 S.W.2d 763 (1947); Steiner

v. Long Beach Local 128, Oil Workers Int'l! Union, 19 Cal. 2d 676,

123 P.2d 20 (1942); Moore v. City Dry Cleaners & Laundry, Inc.,

41 So. 2d 865 (Fla. 1949).

21

or without clearly articulating any liability theory at

all.“ By contrast, no reported Federal decision since

Meadowmoor has ever invoked that decision’s seeming

support for injunctions against the peaceful exercise of

constitutional rights because of related violence, and the

federal judiciary has repeatedly overturned or limited

state court injunctions against peaceful picketing, boy-

cotts, or demenstrations.*

23 Smith v. F & C Engineering Co., 225 Ark. 688, 285 S.W.2d 100

(1956); Enterprise Window Cleaning Co. v. Slowuta, 299 N.Y.

286, 86 N.E.2d 750 (1949) (court refused to modify injunction

against picketing entered by consent although there had been no

violence for 10 years); Hearn Department Stores, Inc. v. Living-

ston, 282 A.D. 480, 125 N.Y.S.2d 187 (1953); Meltex, Inc. v.

Livingston, 145 N.Y.S.2d 858 (Sup. Ct. 1955); United Farm

Workers Organizing Comm. v. La Casita Farms, Inc., 439 S.W.2d

398 (Tex. Civ. App. 1968, writ ref’d n.r.e.); International Ass’n

of Carpenters of America, Local 213 v. Sharp, 202 S.W.2d 506

(Tex. Civ. App. 1947).

24 Carroll v. President and Commissioners of Princess Anne, 393

U.S. 175 (1968) (state court injunction against rallies issued in

reliance upon Meadowmoor reversed); Teamsters Local 795 v.

Newell, 356 U.S. 341 (1958) (state court injunction against

picketing and boycotts issued in reliance upon Meadowmoor re-

versed per curiam); Youngdahl v. Rainfair, Inc., 355 U.S. 131

(1957) (state court injunction against picketing reversed;

Meadowmoor distinguished); Cafeteria Employees Union Local

302 v. Angelos, 320 U.S. 293 (1943) (state court injunction

against picketing reversed; Meadowmoor distinguished); AFI.

v. Swing, 312 U.S. 321 (1941) (state court injunction against

picketing reversed; Meadowmoor distinguished); Henry v. First

Nat’! Bank, 595 F.2d 291 (5th Cir. 1979), cert. denied, 444 US.

1074 (1980) (enforcement of state court injunction against all

picketing and boycotting enjoined; Meadowmoor distinguished);

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

of state court injunction against civil rights boycott enjoined;

Meadowmoor distinguished); Acme Markets, Inc. v. Retail Store

Employees Union Local 692, 231 F. Supp. 566 (D. Md. 1964)

(enforcement of state court temporary restraining order against

all picketing limited to acts enjoined in Youngdahl); see also

Meadowmoor no longer reflects current interpretation

of the protection to be afforded First Amendment rights,

and we urge that it be overruled.

III. Illegal Conduct By Boycott Participants Can Be Con-

trolled Under Traditional Common-Law Principles of

Personal Responsibility Without Employing The Con-

spiracy Doctrine.

We have shown that even if some members of a

group engage in violence, so long as violence is not a

planned objective or tactic, a civil rights boycott is the

kind of activity that is not merely lawful but is—indeed

is the essence of—the freedom of association and speech

which the First Amendment protects. We have also

shown that application of the common-law conspiracy

doctrine to civil rights boycotts raises serious due process

objections. Therefore, the boycott itself cannot be made

unlawful.

There remains an important question: How may a

court, without treading on constitutional rights, control

and provide redress for violence or similar illegal conduct

when it occurs in connection with a civil rights boycott?

The answer lies in traditional common-law principles

that govern responsibility of one person for torts that

are committed by another.

Section 876 of the Restatement of Torts (Second) de-

scribes the situations in which one person is subject to

Potter v. Houston Gulf Coast Building Trades Council, 482 F.2d

837 (5th Cir. 1973); Collin v. Chicago Park District, 460 F.2d

746 (7th Cir. 1972) (governmental body ordered to grant permit

for demonstration; Meadowmoor distinguished) ; Smith v. Grady,

411 F.2d 181 (5th Cir. 1969) (federal district court injunction

against verbal communications during civil rights boycott modi-

fied); Rosen v. North Carolina, 345 F. Supp. 1364 (W. D. N. C.

1972); Hall v. Hawaiian Pineapple Co., 72 F. Supp. 533 (D. Hawaii

1947); United Electrical Workers of America v. Baldwin, 67

F. Supp. 235 (D. Conn. 1946) (state court injunction against

picketing unconstitutionally overbroad).

23

liability for harm caused by another person with whom

the first person is “acting in concert.“ In none of these

situations is a person subject to liability if his only re-

lationship to the tort is that he joined in a common plan

to carry out a lawful objective but another member en-

gaged in tortious conduct in furtherance of the plan.“

One situation is when the first person “does a tortious

act in concert with the other or pursuant to a common

25 “876. Persons Acting in Concert

For harm resulting to a third person from the tortious con-

duct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursu-

ant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of

duty and gives substantial assistance or encouragement to

the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplish-

ing a tortious result and his own conduct, separately con-

sidered, constitutes a breach of duty to the third person.”

26 Cf. Rizzo ©. Goode, 423 U.S. 362, 373-76 (1976), where the

Court reversed an injunction under 42 U.S.C. § 1983 against police

officials that would have required them to restrain tortious police

conduct, on the ground that such collective civil responsibility

should be limited to concerted designs to accomplish a wrongful!

objective. The Court distinguished the injunction in Hague v. CIO,

307 U.S. 496 (1939), as grounded on “the adoption and enforce-

ment of deliberate policies” by the Mayor and city officials to forbid

communication regarding federal labor statutes, and distinguished

the injunction in Allee v. Medrano, 416 U.S. 802 (1974), on the

ground that the injunction in that case against the named Texas

Rangers “flowed from an intentional, concerted, and indeed con-

spirational effort to deprive the organizers of their First Amend-

ment rights. .” 423 U.S. at 374-75. Cf. Monell v. New York

City Department of Social Services, 436 U.S. 658, 692 (1978) (mu-

nicipality not liable under Section 1983 for the torts of its em-

ployees).

24

design with him... . Sec. 876(a). When the word

“conspiracy” is used in this context, it means a common

plan to engage in tortious conduct or to achieve an un-

lawful objective. Comment b. Under this concept, label-

ling as a “conspiracy” a common plan to achieve a

lawful objective would not support the imposition of

liability on all members; one alleged “co-conspirator”

could thus be liable for tortious acts committed in fur-

therance of the common plan while none other would

be. E. g., James v. Evans, 149 F. 136 (3d Cir. 1906),

cited for this proposition in W. Prosser, TORTS 293 n.20

(4th ed. 1971)*"; Hickman v. Taylor, 170 F.2d 327

(3d Cir. 1948), cert. denied, 336 U.S. 906 (1949).

Another situation involving liability for the acts of

another occurs when one person gives the other “substan-

tial assistance or encouragement” to engage in tortious

conduct and knows that the conduct constitutes a breach

of duty. Sec. 876(b). Once again, there must be a close

relationship between the tortious conduct and the person

held liable albeit not the actor. See, e.g., Haddock v.

Stewart, 232 Md. 139, 192 A.2d 105 (1963) (where two

automobiles are racing on the streets and one is involved

in an accident, the other driver may be held liable)**;

South Shore National Bank v. Donner, 104 N.J. Super.

169, 249 A.2d 25 (1969) (allegation that jeweler fur-

nished a false appraisal with knowledge that it would be

used to defraud insurer states a cause of action under

Section 876(b) of the Restatement). Again there is no

27 The court in James said:

“This is in substance an action on the case in the nature of

conspiracy. Being a civil remedy the gist of the action is not

the conspiracy charged, but the tort working damage to plain-

tiff. The tort in its nature was capable of commission either

by both defendants jointly or by Freeman alone.” 149 F. at

140.

28 This fact pattern appears as illustration 2 in the ALI’s com-

ment on Section 876 (a).

25

liability on the part of one who has neither acted tor-

tiously nor agreed to achieve an unlawful objective.”

Finally, the first person is subject to liability if he

gives the other “substantial assistance” in accomplishing

the tortious result and has himself been guilty of an in-

dependent breach of duty to the injured party. Sec.

876(c). Thus, if the person sought to be held liable

merely joins in an effort to achieve a lawful objective,

that person has committed no breach of duty to a person

injured by tortious conduct of another member of the

group even if the first person has rendered “substantial

asistance” to the actor. Liability cannot be imposed.

In short, there is ample authority, expressed in Section

876, for imposing tort liability on those who truly ought

to be liable without impairing the First Amendment

rights of those whose relationship is more distant. There

is no demonstrated need for the broad-scale liability with-

out fault that is imposed under the conspiracy doctrine

followed by the Mississippi Supreme Court in this case.

Reliance on Section 876 concepts is clearly a “less dras-

tic means” for dealing with the subject of legitimate

concern—preventing violence. Cf. Shelton v. Tucker, 364

U.S. 479, 488 (1960).

We urge the Court, therefore, to hold that a civil

rights boycott may not be the subject of a suit for dam-

ages or injunctive relief under the conspiracy doctrine

or any similar theory.”

2° There may well be situations in which mere “encouragement”

to commit a tort would not suffice for the imposition of liability,

and certainly criminal liability should be imposed only when there

is a clear and present danger that violence or other unlawful con-

duct will occur. E.., Yates v. United States, 354 U.S. 298 (1957)

% The Court is free to delimit the power of the states to apply

common law causes of action to conduct protected by the First

Amendment. The Court took just such a step in New York Times

v. Sullivan, 376 U.S. 254 (1964), where it forbade libel actions by

public officials absent proof of actual malice.

26

IV. Limiting the Power of A State To Suppress Civil

Rights Boycotts Is Not Inconsistent With the Princi-

ple That Federal Civil Rights Laws and Remedies

Should Be Broadly Construed.

We have here urged that the Court limit the power

of states to suppress civil rights boycotts. It may be

thought that there is an inconsistency between this posi-

tion and the decision under review in General Building

Contractors Association v. Pennsylvania, No. 81-280, and

related cases.“ In that case the lower court found that a

union hiring hall was operated in a racially discriminatory

fashion. Employees had been referred to the defendant

employers exclusively through the discriminatory hiring

hall pursuant to a series of collective bargaining agree-

ments negotiated by several trade groups as agents of

the employers. The court found that the employers and

the trade groups did not participate in the hiring hall

operation and neither knew nor had reason to know of

the discriminatory conduct. The court’s decree, designed

to eliminate the discrimination and ameliorate its present

effects, imposes certain obligations not only on the union

but also on the employers and trade groups. (No back

pay liability has been assessed in the case.) The trade

groups contend that no obligations should have been im-

posed upon them by the court’s decree.

The decision in General Building Contractors rests on

the proposition that federal civil rights laws should be

construed broadly to accomplish their purposes and that

remedies thereunder should be broadly applied. There is

no inconsistency between the position advanced in this

case and the rationale of General Building Contractors.

The reason is apparent: Suppression of civil rights boy-

31 General Bldg. Contractors and this case have been set down

for oral argument in tandem. 50 U.S.L.W. 3375 (Nov. 10, 1981).

27

cotts by sweeping injunctions and damages awards is

contrary to several extremely important constitutional

principles; broad construction of civil rights laws and

remedies is not, and indeed it furthers the nation’s his-

torical commitment to end invidious discrimination.

Federal laws protecting constitutional rights, especially

the Civil Rights Acts that were enacted following the

Civil War, have consistently been accorded a broad in-

terpretation. See, e.g., Gomez v. Toledo, 446 U.S. 635,

639 (1980): “as remedial legislation” a Civil Rights Act

“is to be construed generously to further its primary

purpose.” This broad interpretation of the Civil Rights

Acts also extends to the scope of relief that must be

granted to those whose civil rights have been infringed.

See, e.g., Louisiana v. United States, 380 U.S. 145, 154

(1965): “the court has not merely the power but the

duty to render a decree which will so far as possible

eliminate the discriminatory effects of the past as well

as bar like discrimination in the future.”

Altogether different presumptions apply in a case like

this one, involving laws and decrees affect First Amend-

ment rights. There is a preumption against prior re-

straints upon expression, Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 70 (1963). “Broad prophylactic rules

are suspect” and “[p]recision of regulation” is required,

NAACP v. Button, 371 U.S. 415, 438 (1963). An order

“must be couched in the narrowest terms that will ac-

complish the pin-pointed objective permitted by constitu-

tional mandate and the essential needs of the public

order.” Carroll v. President and Commissioners of Prin-

cess Anne, 393 U.S. 175, 183 (1968).

Thus, while the Court has held that “[w]here a gov-

ernment restricts the speech of a private person, the

state action may be sustained only if the government

can show that the regulation is a precisely drawn means

28

of serving a compelling state interest,” Consolidated Edi-

son Co. v. Public Service Commission, 447 U.S. 530, 540

(1980), the Court has also reasoned that “[a] narrow

construction of the language of § 1982 would be quite

inconsistent with the broad and sweeping nature of the

protection meant to be afforded by §1 of the Civil

Rights Act of 1866, . . . from which § 1982 was de-

rived.” = Sullivan v. Little Hunting Park, 396 U.S. 229,

237 (1969).

Petitioners in General Building Contractors appear to

make no claim that their conduct was protected by the

First Amendment or that the injunction of which they

complain infringed First Amendment rights. Instead,

their contention is one of statutory construction. They

argue that the lower court’s construction of 42 U.S.C.

§ 1981 was too broad. But many statutes are construed

broadly, while many others are construed narrowly;

there is no “inconsistency” between these two situations,

for every rule of law must be construed in light of the

principles pertinent to that rule. The principle for which

we contend here is not pertinent to the question pre-

sented in General Building Contractors.

In short, Claiborne Hardware and General Building

Contractors must be resolved under contrasting lines of

precedents: the former, under a series of decisions nar-

rowly circumscribing governmental inhibitions upon con-

stitutionally protected activity; the latter, under the de-

cisions requiring a broad interpretation of civil rights

statutes and imposition of broad remedial action to

counter invidious discrimination.

The Civil Rights Act of 1866 was also the source of 42 U.S.C.

§ 1981, the precise statute involved in General Bldg. Contractors.

29

CONCLUSION

For the reasons set forth above, the decision of the

Supreme Court of Mississippi should be reversed.

Respectfully submitted,

JOHN VANDERSTAR

(Counsel of Record)

Of Counsel: Davm J. CYNAMON

CHARLEs S. SIMS DONNA L. KOHANSKY

AMERICAN CIVIL LIBERTIES Davi F. WILLIAMS

UNION STEVEN J. ROSENBAUM

182 W. 431d Street JOHN B. WARDEN

New York, New York 10016 COVINGTON & BURLING

PHYLLIS N. SEGAL 1201 Pennsylvania Avenue, N.W.

NOW LrdAL DEFENSE AND Post Office Box 7566

EDUCATION FUND Washington, D.C. 20044

182 W. 43rd Street (202) 662-5540

New York, New York 10016 Attorneys jor Amici Curiae

December 24, 1981