# Appendix — Kasper v. Brittain (No. 315)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1415%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1957

## Text

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. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1415%3A6. Public record. Not legal advice.