Appendix — Kasper v. Brittain (No. 315)

la

j. . PROCEEDING$ IN THE”

" UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_ Cause Argued and Submitted

April 9, 1957—Before:

Simons, Chief Judge, Me Allister

and Miller, JJ. | .

This cause js argued by J, Benjamin-Simmons

jant ayfl by Donald B.

submAted to the court,

for appel-

MacGuineas for appellee's and js

. 4 | | . : Judgment

' : (Filed June 1, 1957)

Appeal from the United States District Court for the

Eastern District of Ténnessee, \ ,

_ This cause came.on to be heard on the

record from the (United States Distrie

Mastern District: ofTennessee,

transcript of the

t Court for the

and was argued by counsel.

On consideration whereof

adjudged by this C

trict Court in-this e

, Xt is now.-here ardered and

ourt that the judgment of the said Dis-

ause be and the same is hereby affirmed,

O«

o-t

Opinion

(Filed June 1, 1957)

Ne. 13046

, UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT. ;

JOHN Kasper, A ppellant, ns

Ap es ; - ;

D. J. Brirr AIN, In, ET AL, Appellees. ee

Appeal from the United States Court for the

Easte rh District of Tennessee, Northern Divi ision

Decided June 1, 1957 :

Before Sthowe. Chief Judge, McALLISTER and MILLER,

Cireuit Judges,

Sruons, Chief Judge. + The. appellant was found guilty

of a criminal contempt by the district judge in wilfully

disregarding and violating the court’s order of Angust

29, 1956, in a school segregation case. He was sentenced

‘to be confined 3 in some institution to he d designated by the

Attorney General of the United ‘States for’ a peridd of

one year, and was admitted to bail pending appeal. He

challenges the order on constitutional, Jurisdictional. and

pMcedural grounds.

The background of the contempt proceeding is import-

aat. On April 26, 1952, the district judge dismissed a

pro eeding against the County Board of Education af

_Ayderson County, Tennessee, for a. declaratory judgment

and injunetion, restraining jt from continuing a custom

denying colored children rights guaranteed them by the

Fourteenth Amendment to the Constitutior of. the United

States. No State statute was involved. McSwain. et al.,

County Board of Education, 104 Fed. Supp. 861. On

appeal to this court, judgment was reversed and the case

remanded to the district court’ for further proceedings,

3a

in conformity with the decision of the Supreyne “tin

Brown, et al. v. Board of Education, 347° U.S. 482. In

compliange, the district court issued an injunetiena! order,

requiring the appellees to desegregate the High Schools of

Anderson County by the fall term of 1956. The appellees

‘accepted the order, as required by the law of the land,

and proceeded ‘to comply with it. Twelve Negroes were

enrolled.in the Clinton, Tennessee, High School at. the

beginning of the fall term, without disrupting ordinary

school routine and without picketing or violence of any

kind. -

‘This Was the situation in Clinton when on Saturday,

August 25, 1956, the appellant arrived from somewhere in

the Kast. His declared purpose, established cumulatively

by many witnesses, was to run .the Negroes out of the

school or to'cause Brittain, its prineipal, to resign his job,

and so to violate the court’s segregation order. To achieve

that purpose, he org: nized a movement desigyed to im-

plement it. On Mond: Ly, August 27th, mass picketing be-

gan in front of the school and by Wednesday, August 29th,

the crowd had grown and become mienacing, so that both

students and faculty were terrorized, and one Negro pupil

had been attacked. When urged to desist, appellant re-

plied that the court order need not be obeved and stated

to Brittain “If you. <a this up, there is going to-be blood-

shed:’’ -

On August 29th, the appellees petitioned the court for

injunctive relief, allegmg that the appellant, ii concert

with others, had begun the organization of a movement to

prevent the petitioners from obeying the desegregation

order, of which he had full knowledge, and urging. his fol-

jowing {6° ignore it and to do wall they could to impede,

obstruct and intimidate the appellees from carrying it

ouf: The court issued an ex parte temporary restraining

order, prohibiting the appellant aud others from further

hindering, obstructing, or/in any way interfering \ with the

EF 4

weer 4a.

carrying out of the court’s order and from picketing Clin-

ton High School,“either by.werds, acts, or otherwise, and

directing the appeltant to appear on the following day in

the court: at Knoxville to show cause why a preliminary

injunction should not issue. _

On the same day the restraining order was served upon

the appellant and immediately after such service, the ap-

pellant made a speech toa crowd of 1,000 .0 1,500 peeple

to the effect that although he had “been serwed- with the

restraining order, it did not mean anything and that the

Supremé Court’s ruling in thé segregation cases was not

the Jaw of the land, Thereafter, an order of attachment

was issued by the court, charging that appellant’s speech

was a wilfull violation of the, restraining order. and con-

stituted criminal. content The order of attachment was

served and the appeliant appeared with connsel. before the

court, on August 30, 1956. The court explained to ‘him

and his attorney th: i he would’ hold an immediate hear-

ing on the isstie of the preliminary injunction sought by

ibe appellees dmt that there could be a continuance on

the criminal contempt charge, if they desired it. Appel- .

lant’s counsel, at first, requested time to prepare his de-

_fense on the contempt charge but during the hearing on

the preliminary injunetion changed his mind and, af’ his

express request, the hearing proceeded on both the: pre

liminary injunction angl the contempt proceeding. The

United States Attorney participated in it, at: the. request

of the court and pty ovjection interrogated witnesses.

“The court held the restriining order te have been -prop-

erly issued and.that the evidence justified its continuance

as a prelimins ary injunction, The court also held that the

appellant had wilfuliy violated the temporary restraining

order; thiat, his’ conduct was not protected by the- First

Amendment; and that he, was .guilty of a criminal con-

tempt, The sentence here challenged was: then inposed.

On Friday August 30, Saturday August 3 st, and Sunday

‘September Ist, violence became rampant in Clinton, A

~~

.

- 0a es

mob fermed, estimated at 3,060 people, with whie h the local

police officials and others deputized to meet the emerge ney

clashed, and, though tear gas was used, the mob could not

he controlled. The State Patrol and National Guard were

called and, at one point, the Guard wats obliged to nse fixed

bayonets. Finally, the Guard Commander at head of 667

men was able to restore order,

Appellant’s challenge to the validity of the sentence is

on the ground that the statements’ made by him, as set

forth in the citation and attachment, are protreted by the

First Amendment of the United States Constitution, guar-

anteeing freedom of speech; that the procedure followed

by the trial court constituted a denial of procedural due

process of law under the Fifth Amendment, because’ the’

temporary restraining order was not served upori him, so

he could not be guilty of violating it; that the contemy

cifation can not stand, because it was not-brought a th:

name of the United States whieh is the real party injinter

est and so the conviction is null and void; that the original

defendants having complied with the cour ts order, the cass

was thereby -closed ‘and appellant could not be euilts

of criminal contempt for speaking against it; that the sery

ice of the contempt citation was void, because it was served:

upon the appellant in: the eoarthouse where he appeared

in, answer to’ the show cause order; that the procedure

constituted an improper use of the Federal police power,

singe the State police power had not been exhausted; and

that the sentence was grossly excessive. Appellant makes

no’ claim that he was illegally denied a trial by jury. No

request for a jury trial was made hy him, and his counse!

conceded in oral argument that appellant was not entitled

to’ one.

The question whether the district court had jurisdiction

of the controversy and the power to enforee its order by

the injunctive process need give ns little trouble: In Brown

v. The, Board. of Education, 347 U.S. 483, the Supreme

ba res

(court cone halod Phat in.the field of pablie education. serre-

ration is a detilal of. equal protection of the Jaws. The

‘onstitutional principle re decided was implemented hy

the mandate far decree j in Brown‘y. Board of Education,

49 TUS. 294> wherein the Cases. there considered were re-

nauded to the district courts to take such proceedings and

enter suchsorders and dee ‘Tees copisiste nt with the opinion,

ds are neeessary and proper to admit the parties to.

I” Cases to the public schools on a racially nondiserimina-

tory basis, with all deliberate speed. By the holdings there

ieccharen: we were bounel in reversing the McSwain )

cise gnd the district court: was, likewise, hound te issue

~ Injnnetronal oreer, requiring the School Board to de-

ROLLE zate the High Schools of Anderson County. + More-

over, in directing this to, be done, the district jndere acted

with all deliberate speed, in conformity with our decision

and the decision. of the Supreme Court, when he eon.

manded the Sehool Board to thesegtegate by the fall term

of doo. Tt would seem that the Brown "aSe, Its associated

cases, and our own judgment in McSwain would be a con-

clusiye response to the appellant's areuments, without fur-

ther tationalization. There j Is also. available to us, how-

. the exban: stive and. schokirly opinion of Circuit Judge

Wi sdvoue speakine-ttir the Court of Appeals of the

ichth Cireuit, in Brewer v. Hoxie School District No.' 46,

23 SF. (2d) OL, 98, wherein it was held that the jurisdiction |

‘ Federal Courts and the sppheation of its remedies

ar _ protect rights safeguarded liv the Vonst! tution is pew

cilestablished that no one Inay question it. The Brews)

case is completely doeumented and we have bene fitted much

bam the thoroughness of the resgsirch there disclosed:

t}

ee.

The right to, speak is not absolute ana muy he regue

fated ta accomplis sh other legitimate ohjectives of rovern-

ment. The First Amendment does. not confer the right

to persuade others to violate the law. Giboney v. Em-

vite Storage Company, 336 U. 8S. 490, 502, The speech

bere ¢njotned was clearly caleulated to cause a violation

2. . : .

of Taw and speech of that character. is not- within The

protection of the First Amenrdient, Dennis v. Upited

States, 341 U.S, 494 ; Feiner v. New Yorks AO TLS. SLA:

Beau. Harnais Y. ainots, 343 U.S. a0." ( hap lins hay ¥.*

New Hampshire, SLU, a. AGS. ye

‘

Appellant had urged the crowd to disregard the orders

of the court and to continue pressure upon the school’

officials until Negroes were eliminated from the Clinton

High School. This, clearly, Was not a meére exposition

of ideas. Jt was advocacy. of Immedifte: action to ae

vomplish an illegal result. sousht to he avoided hy the’

restraining order:’ The ¢lear and” present danger test.

as applied by Judge Learhed* Hand, and: adopted by the.

Supreme. Court. in“the Dennis case, is here met, hy the

mob violence that followed the ursings of the appellant.

Danger that calls’ for the presence of the State Patrol]

and the National Guard, with the use of bayonets and

‘tear gas, is, we think, within the warrowest limits of the

-concept and eries aloud, for sith court action as was: here

take nh, =

r.)

: The’ contention that the procedure followed by the

trial court constituted a deni: uot procedural due process

“Recause the temporary restraining order Was not served

upon the appellant, wherefore. hig could not be guilty

of violating if, is simply-not applicable to’ the. Yacis of

recotd. The restraining order was served upon the ap-

~pellant by the Marshal, who, with his deputy, gave clear

and persuasive evigence of its servier upon the’ appr:

lant, the reading ‘to him’ of the iInjunctional order, and

the ‘delivery to him of the citation, after which the ap

pellant held ap’ the paper and said torthe erowd: ‘The

Marshal served a temporary injunction on~ me and |

my to appear over at Knoxville xt the Federal Court

Bui ting toimorraw_at 1 o’elock- for a hearing... » You

are all cordially invited to come over and we will

demonstrate .... 1 will be with yeu folks until every

“tigger is run out of the Clinton Scheol.’?) The Marshal's,

Ca

evidence avas corrobofated by his ‘deputies and other

witnesses. The suggestion of the appellant that the eourt’s

observation that it was of” the opinion that the a })-

pellant knew about the restraining erder is. not. a find.

“ing of fact, is but a eaptions play pon words, |

The insistence of the appellant that the case was closed | ©

When the original defendants had coraplied “with the

@ourt’s order, so. that he could net he guilty -of erim-

inal contempt tor speaking against “it must He. rejected

as’ clearly without mérit.. The Federal € ourt is always

empowered to enforce its degrees by orderly process,

The further - contention that - because the order was

served upon the appellant in the courthouse, while he

was responding to the order tj show ease, requires

nO Citation of authoritY to vindicate the court ’S action. -

The appellant was within the Jurisdiction of ‘the eourt at

‘Nnoxville as he was at Clifton and was not brought inte

it by the attachment. So. with the confention. that - the

procedure followed comsftuted an improper use’ of Feed.

tral Police power, since. the State “Potice Power Mad

not been exhausted, is equally untenable. The Federal

Courts are empowered Yo ‘protect Constitutional federal

rights evey theugh State power may equally be so exercised: -

:

The contention that the sentence imposed upon: the ap- .

pellant was excessive. is, likewise, rejected. Punishment Oe

is not “erue] and unusnal,’? unless it is “so greatly f

disproportionate to the offense committed as to b® com-

pletely arbitrary and- shocking to the sense of justice, — F

United States v. Weems, 217 U §. O49; United. States v~

ftosenberg, 195 F. (2d) 583 (C. A.-2), certiorari denied *

344 UL S838 That is not thie ese here,

“Fimally, an injunetional order issued by a court must be : ;

. obeyed, however, it ay seemingly be challenged as in-

valid. This principle has long been accepted and is CrVS-

talized in the classie comment ‘of Mire Chief Justice Taft ;

in-Howat v. Kansas, 258 U.S. i81, 189. wherein, speaking

for a unanimous court, he said: “Tt is for the court

of first instance to determine the question of -the

validity of the law and until its decision is oe for

error by. orderly review, either by itself « - by a higher .

court, its orders. Based oh Its seein anes are to be re

spected.?”? U guted Sea’ v. United Mine Workers Of elmer.

ic, B30 U. S.2 298, 293; dmalgamate d Clothing Workers y

Bichman’ Brothers Cc 0;, 211 F. (2d) 449, 452 (C8 A, i). So

only may the dignity of courts: be maintgined and Con

stithtional rights be ah initio prseryed

Judgment. affirmed.

ae > \ Order Denying - Rehearing.

a (Filed June rt LJ37), Soa

Upon consideration of a petition by the above-n: ned

appellant for a rehearing before the court as cohstituted

at the original hearing and the. suggestion that-the court

hold a hearing en-bane, we follow our established practice

of "denving such hearing Ugeless A pe tition has been fitted

a reasonable time prior to the scheduled hearing before

a panet of three Judges; and upon the consideration of the .

, petition for rehearing by such panel, it is he ‘reby ordered:

“th at the’ petition for rehedring be, and itis he reby,

Heniod.