The Garner case (Episode 4 of 13); The law and society

This is how Kaufman speaking from the Center for the Study of democratic institutions in Santa Barbara. Studies of the center. Now the main activity of the fund for the Republic are directed toward discovering whether and how a free and just society may be maintained under the strikingly new conditions of the 20th century. The object of the center is to clarify the issues facing a democratic society not to settle them. The method is dialogue and discussion. Out of these discussions papers are occasionally published and presented to the public as a contribution to widening the circles of discussion. During 1963 the entire summer was spent on the center's Continuing Study of Law jurisprudence and the Bill of Rights. In his study of the law the center is concerned with the way political developments effect interpretation of the law and with the way interpretation of the law effects political developments. Already the Warren Court has made more new law than any of its predecessors. Robert M. HUTCHENS president of the center said recently of the court it has completely revised the criminal procedures of the States it has established new national

standards for the economic and political treatment of the negro. On one day alone it overruled four previous decisions. Under these circumstances said Mr. Hutchens prediction about the course of the court is rash. All that can be said is that recent opinions deserve study as offering some evidence of what the next steps may be. This broadcast is the third in a series of discussions of a Supreme Court decision in the case of Garner versus Louisiana. Which reversed the conviction of Negro demonstrators who had been arrested for disturbing the peace by sitting in at white lunch counters in the first discussion of the Garner case. Harry Calvin Jr. of the University of Chicago Law School described the demonstrations as a movement toward collective self-help. And suggested that from a legal point of view the problem with the Do It Yourself remedy kit as represented in this self-help movement is that you get rather quickly to the boundaries of what the courts will find permissible. In the second

discussion of Garner. Mr. Calvin analyzed the differing grounds on which justices Warren Douglass Frankfurter and Harlan reversed the conviction of sit ins and use these differences to illustrate the moral and legal dilemmas which face the court in the race question. Garner illustrates further the tradition of the court to rule as narrowly as possible on the great issues. The meeting which follows the last on the Garner case took place at the end of the summer two months after the first two discussions. In it Harry Calvin Jr. attempted to synthesize the two months long conference and drawing upon earlier discussions of race law free speech and of legal reasoning. He said before the staff the following exercise. Is it possible using the lessons of the Garner case as a model to arrive at a theory of free speech which would meet the Negroes right to demonstrate and yet protect the rights of private property. Suppose said Mr Calvin the

negro self-help movement were to be regarded as a poor man's printing press. Could it not then be protected under the First Amendment as free speech and thereby avoid the legal tangles of criminal trespass statutes. As the first two discussions in this series made clear. The charge of criminal trespass poses to the court the question whether the rights of private property however they be defined shall continue to have priority over freedom to speak. Put another way may negro demonstrators exercise their freedom to speak against injustice in a privately owned department store participating in the discussion that will follow Mr Calvin's presentation are the chairman Robert M. Hutchens. Hime Perelman professor of logic and ethics at the University of Brussels Belgium. Joseph Tasman professor of political science at the University of California at Berkeley Zelman college dean of the University of Melbourne Law School in Australia Edwin Dunaway attorney and former Supreme

Court justice of the state of Arkansas. And William Gorman Richard LICHTMAN Harry Ashmore Harvey wheeler and W.H. ferry. And now Mr. Calvin as he begins his presentation suggests that even if his theory will not hold up the discussion ought to yield a profile of the law. Well I'm going to try to do is to look at the negro self-help movement. And to explore the possibilities of providing a mode of legal protection for it a little broader than now exists. I expect as I stated in the very serious difficulties that I pursue this and I almost hope you will reject the theory I'm going to put before you. It's a kind of test of your conservatism and good sense. However the climactic aspects of this are almost breathtaking. I will be presenting a theory that will in a sense round out our discussions or raise the largest questions of free speech and discussions of legal reasoning in our discussions the new rhetoric. This isn't that if there were what I learned to call the pejorative sense. Also you may remember that we began some months ago with self-help is the is the.

Story into which we came into the discussion of race law we're going to go out the same door we came in. Now let me say repeat a few things that we said several times before. You remember it's not some two months ago the beginning with the Garner case the first perspective on the current evolution of the negro protest movement was it was undertaking a radical and interesting shift. And it seems to me the prediction that was occurring turns out to be more interesting more accurate and more significant with every passing day. The shift was that up till recently the Negro movement had been working through the courts process the legal iteration exacting from the courts inch by inch the ground of their progress. It was a legal move and it was exciting it was sort of impressively getting by constitutional adjudication of the kind of high order and very well handled by the negro side. What I think would have been titled over a long time. The shift has been suddenly to go in some sense from of course the streets were

among other things the court's famous phrase in the school cases that this shows proceed with all deliberate speed is not being made to look ironic by this effort on the part of Negroes to speed it up. And the role of the law now is if it comes in since this seems to be the big negro picture right now the role the law comes in by way of regulating this form of activity by the negro question to be decided by the law as Mr. Calvin sees it is how far it will privilege this program self-help. In a sense having proceeded from the courts into the streets the Negro is now asking the law to stay out so that the movement can continue in the streets. It is interesting to note Mr. Calvin says that one of the important features of the civil rights bill before Congress is the attempt to take the Negro movement out of the streets and back into the courts and there is as we know some tension in the movement between the groups that still wish to proceed gradually through the courts and the groups that have a more revolutionary desire to proceed through the streets and with some excitement enthusiasm so

we're on top of what I think is clearly the significant in any sense legal sociological etc. development of the day. And I think one thing we want to keep in mind is the possibility this means maybe asking for for a great variety of objectives and the legal question raised does it make any difference what they're asking for. Do we care what the message is or is the tactic going to be privileged because it's a kind of protest anyhow. I don't know. Let me come to the low cost of my the actual task that was to put put us in the mood of megalomania which I'm I'm getting what I have in mind is something like this. Back at the turn of the century Louis Brandeis wrote what is the most famous law review article of all times an article on the on the right of privacy. And it consisted of his point together very remote and tangential little bits of analogy very carefully and if in the legal world and coming up with an entirely new legal cause of action for the invasion of privacy and doing it so skillfully as to make the all these little bits seem to resist

a plea producing principle always been there so to speak and had to be recognised by the courts now. The article is extraordinary because it said it's the only article I think ever written and largely had an impact on the court. It gets more all the time and has actually changed a lot and it's reproduced it little change in the law with the courts probably citing the Brandeis article. Now the fact that I happen to think the theory he was announcing was crazy and wrong is beside my point at the moment which is that this is so superior kind of groping operation point things together announcing a new principle from from very little bits of flotsam and jetsam he was able to pick up. I intend to do the same kind of thing today measures only for that reason the shaykh say yes. It has only good privacy too so that everything comes out very nicely. Is the find some way of producing a profile a legal profile for the negro tactic for answering away the question of what made the police interfere with or question the other way around when they do not interfere with it. No I assume that certain logical consequences follow from from producing any

kind of Negro position which the police may not interfere with. And that has consequences with respect to Connor help. Let's suppose for the moment that the other sides of this because sites use the same tactic. To what degree are you defining their position by defining the negro positions. I think I can roughly answer that in two ways. Ah presuming they be entitled to use the same tactic. I mean as far as the tactic goes on the other hand I think it was a kind of inexorable logic that if the Negro cannot be arrested for standing where he is standing he cannot be evicted by the private self-help of the other side either as he's protected from a kind of use of force by them because we legalise his position. What I'm saying is that I assume that whatever exactly is going to be privileged here in terms of picketing and protesting and so forth. Apply equally to the picketing and what protesting to be no problem about that. But if we say that the Negro cannot be arrested. For occupying whatever place it is occupied I think it falls from deciding the question about a rest here. We've also why that decision really decided the question about the

amateur self-help move that might be made by Mr. Calvin anticipates a question that may be raised. Does it make much difference to the Negro movement what the law decides about privileging self-help. In the first place. Whatever the law turns out to be suggests Mr. Calvin demonstrators will be arrested anyway. Secondly they want to be arrested and effective part of the negro campaign lies in the drama of their willingness to go to jail. The practical tactic of arousing the public conscience through jail going and of involving people through campaigns to raise funds for bail. These may turn out to be as significant perhaps more significant than whatever the Supreme Court does to clarify the law. And yet Mr. Calvin it does make a difference which way the law decides that two observations I wish to make about that one is no matter what the law will turn out to be here are going to be arrested anyway. And therefore any

proposal here to clear up a law on their behalf requires as an adjunct to make it all sensible kind of very meaningful and moving proposal the fact that the letter the pinhead from Granville Clarke suggesting the generating of a bail fund to handle a case of Negro arrest in the South as a movement goes on. Not a prediction of the law will be violated they will be arrested. And it doesn't do much good to not get a constitutional right to be where you were if you're sitting in jail that time and that therefore the practical tactic of organizing bail funds turns out I think would be a significant part of whatever one wishes to do about this is clarifying the law at the Supreme Court level. Secondly I think you have to remember they want to be arrested. I mean this is another part of the problem. They will they will want to be arrested because the protest is made better by going to jail. You know if they're if they're being someplace they are entitled to be doing something they're entitle to do then these Southall appear to be very aggressive very unsympathetic. They may have some effect on what the police actually do and so forth. So there probably is a great practical importance to deciding where the legal lines are for the cyclists as

I came out from Chicago telling you the negro as I do in Chicago impressed me with the sense of exquisite legality that they were utilizing as I think this is a kind of passé view and I think that the movement slightly out running the legal advice it's been getting but the impression for a long time was as I said that this is being advice like tax advice I mean these are people who were told inch by inch were constitutional they could stand with a lawyer at their side. It was strange that a protest movement was under such a degree of detailed legal advice whether the energy of it now is running ahead of the advice I don't know so much so that now we go back to the Garner case because our question begins there in the case of Garner versus Louisiana the court reversed the conviction of the demonstrators for disturbing the peace on the grounds that no evidence existed to support the charge. Jeff. Does Douglas in a separate opinion held that since the store the privately owned operated under a public license. It was a public facility and that the state was therefore constitutionally prohibited under the 14th Amendment from

enforcing a policy of racial segregation. Justice Harlan also in a separate opinion held that since the demonstrators were welcomed by the management in other parts of the store they were present with the implied consent of the owner and were by their presence exercising a form of free speech. Had the demonstrators been arrested for trespassing on private property the court might have held their conviction is constitutional. The absence of a criminal trespass statute in the Garner case made it possible for a majority of the court to rule narrowly on the basis of insufficient evidence and thus to avoid ruling on the broader issue of segregation. At the time this meeting was recorded the court had not yet handed down decisions on convictions for criminal trespass. Is it. Simple Mr. Calvin asks to devise a more generous way of protecting the negro tactic of self-help than was provided in the Garner decision. One possibility that Mr Calvin suggests

and immediately discounts is through legislative action under which the power of the owner to deny permission to enter his property would be suspended. Legal precedence for the right to enter upon private property without permission exist for example during storms and other emergencies. If you can just as my necessity maybe you can trespass by the sense of your rights and you can work out something I said very rapidly not something that we stopped but there would be a possibility of a kind of common law or legislative development here that the only trouble with this route was that one is I don't have to be interested in it this morning. The second trouble is that they say well this is important as I can tell them it will not lead to a constitutional underwriting of the position that I would wish to add to my objective the need for founding whatever. Profile of privilege we're going to phone here on constitutional grounds so it's independent of the will of the state legislature etc. So we're not looking for a constitutional basis for this.

And the base is obviously that I wish to play with is the idea of assimilating this to free speech and see how far we can go trying to treat this as a form of speech. A special form of speech and then signing. Can we exact on that grounds some constitutional protection for it because we wrap it up in Free Speech imagery at the time and as if this speech is a silent sitting at a lunch counter speech picketing with or without signs in any significant sense speech there's a whole movement taking it's very objective speech and if it's speech what's the message I mean what are you trying to say. It does seem to me that of all the difficulties I expect to get into with my theory the least difficulties presented by this premise that this is a form of communication in a serious sense in fact the success of the negro protest at the moment is made incredibly salient negro sense of grievance. They did so enormously a national recognition in the sense of being preoccupied with the negro sense agreements that the segregation decision didn't remotely achieve the sense of saying that this has is a little puzzling now because

obviously it's not pure speech. You speculated once before in the various purposes that were behind the tactic and. Across them even the purposes might may not then brace what in fact in fact it succeeds in doing. Obviously one aspect is to provide a kind of test case legally which which is useful to them. I provide a test case in terms of public conscience or to provide and this is more troublesome for anything we provide the kind of threat to whatever it is it's the subject of the protest a threat that may carry all sorts of ambiguous connotations of force or of the suspension of patronage or something else or it may be simply a way which it seems to me to emerge finally a way of making the total grievance very salient publicly throughout the country that somehow these are demonstrations of their eye in a national audience. That they have been terribly successful that way. This is a great news topic in America seems to be a method that produces that cannot be said not to have a communication component in it that that's quite powerful. FROMAN like to ask the question to just freedom of speech imply implication to least.

That's when the big questions we get to the things we don't know if one of the things we're going to blow up find out of course the first source of you are attempting to play with here is from justice. We would surely have to be blind wrote Justice Harlan. Not to recognize that the petition is for sitting at these counters where they knew they would not be served in order to demonstrate that their race was being segregated in dining facilities in this part of the country. Such a demonstration is as much a part of the free trade in ideas as is verbal expression. More commonly thought of a speech like speech. A demonstration of this type appeals to good sense and to the power of reason is applied through public discussion. Just as much as if not more than a public corporation delivered from a soapbox at a street corner. Justice Harlan then cites all the great free speech cases as precedent continues. If the act of displaying a red flag is a symbol of opposition to organized government is a liberty encompassed within

free speech as protected by the 14th Amendment the act of sitting at a privately owned lunch counter with the consent of the owner as a demonstration of opposition to enforced segregation is surely within the same range of protections. The difficulty for Mr. Calvin in citing Harlan to bolster his own free speech argument lies in the ambiguity of the word consent in the phrase with the consent of the owner. Now this is the nugget of the great my problem is going great to write. It was not too good. Very good is about to spell out exactly what he meant by that. The difficulty with the How to an insight about this is that this is whatever this is. He's very eloquent about why this is speech. It's only permissible speech as long as it's with the consent of the owner that can sense missing the First Amendment aspects of this are going to be subordinated to the private property aspects of it and that's the end of the question is next sentence as a matter of fact this is not to say of course that the 14th Amendment reaches to demonstrations conducted on private property over the

objection of the owner just as it would surely not encompass verbal expression in a private home with the owner had not consented. No let's announce once again what I feebly I'm going to try to do is to see whether that objection and that limitation is being imposed by him is indispensable and I if I mean could we move that line somewhat. Do we have to agree that once consent enters the picture whatever we may say about this being a demonstration of free speech and so forth you're right to make that speech stops and other considerations come into play. No they think I'm going to do this to present what legal analogies could be said to bear on the question as delicately phrases This is not being phrasing question is really does the line of trespass or private property always control and always take precedence over considerations of speech. Is there any privilege so to speak to trespass by the necessity of making a speech as opposed to the city of seeking shelter in a storm or something like that. And does any answer depend on the kind of property we're talking about the kind of speech you're making other things being a great believer in private property for all other purposes I appear to be willing to abolish it for the sake of free speech

at least. I think this puts a question I've never heard raised before quite in the way that I mean actually the question is a new question. I mean put this way I don't think this question has been seriously and soberly answered the quick legal answer would be of course trespass control in the loose way I've been reading about this are two ideas that come through. One is simply this idea trespass a trespass line is involved in the ideas behind the idea of private property that this kind of protection of privacy and of honor sovereign power must be present. I mean we have been thinking about speech we set these rules up we don't have to control a situation like this this is the answer Harlan is giving the answer most lawyers would get asked the question. The other component however is which weve had some amusing experience is a question which Brennan was asking about the captive audience because one of the consequences of approaching this is a speech problem. I assume you're going on a man's land. Let me take the easy case now for him I don't mean this case seriously was a good case to think about in terms of how to work out the analysis but if you insist on going to a man's house to make a speech you come in talking. He doesn't want to. He asked you to leave. He said that if I finish this speech as one of the objections to that

the important one. This has nothing to do with free speech because an important component of free speech is the right not to listen. This raises for the first time in a kind of interesting way how seriously we would take the right not to list as being part of free speech. There's a whole theory about free speech require a willing listener or other times at which the idea of capturing an audience the negro's would in fact do if you permitted them to begin the property really really could make a certain amount of sense and should not be an absolute ironclad rule against capturing an audience. Again if you're on the public street it's kind of interesting that I assume that someone grabs a soapbox and makes a speech loudly enough so you can hear him as you come down the street. The fact that you hate what he's talking about and you're exposed to at least momentarily as you're passing which might last for a minute or two apparently makes no difference that degree these recorded speakers allowed to capture the audience by thrusting his message out and people are allowed to thrust leaflets at you which you may hate to see that one thing that you see it and so forth. There is a sense in which obviously already you are trapped. And I suppose the whole theory of education in

compulsory education is the theory of capturing the audience was young in order to talk to it. The legal precedent for the freedom not to listen exists in the case brought before the Supreme Court to protest the playing of music on city buses in Washington D.C. the cart which ruled that there had been no invasion of the First Amendment because there were no messages involved in the broadcasts made clear that it would have been uneasy if the broadcasts had not been limited to music. The first amendment read the majority opinion guarantees freedom to listen only to such points of view as the listener wishes to hear. Justice Douglas dissenting warned of the Orwellian consequences of government forcing an audience to listen to what it doesn't want to hear. Mr. Calvin takes up the Douglas argument doesn't follow because if they can't capture an audience that nobody can cover for him suppose the state passed a law saying that whenever there's an every day everybody has to turn the radio stations other radios on for a particular station do

you listen to the varied instructions of Joseph the test would be the state capturing audience and I would suppose this would be perfectly legitimate to follow that a private person has the right to the state might have a captive audience question whether there's a better case for the state captured enough than a private person writing to the United States has a right to require individuals to listen to a radio program as part of a national defense program. No it was not what the father would have required to listen to the present going to court unless it's been a question of national defense. I'm not so sure. It would come in the beginning of the end of it. If you'd like to come in here if you love to commandeer above or an audience in that fashion to supplement the food by describing what not to listeners want free speech. Salomon Kalou has produced but you give up and she battle between free speech and privacy right back that's the other way of putting it I guess I'm saying that think that one line of analysis of this problem is people who had to fight through the legal system any prior experience with it. There's this crazy thing of the playing of music an audience is regarded as captured by the court in these deals

especially with whether a First Amendment challenge to that is possible in terms of the audience having a right not to listen as part of First Amendment and also whether it is an invasion of privacy in your terms to court rulings dealing with the conflict between the right to speak and the right not to listen or contradictory. In one case involving the use of soundtracks the court ruled it was an unconstitutional abuse of free speech to ban soundtracks in the second case the court voted to ban rock soundtrack says an invasion of the citizens privacy. Justice. Black descending from the majority opinion in the second case said there are many people who have ideas they wish to disseminate but who do not have enough money to own publishing plants newspapers radios moving pictures studios canes or show places. Everybody knows the vast reaches of these powerful channels of communication which from the very nature of our economic system must be under the controlling guidance of comparatively few people. On the other hand public speaking is done by many people with divergent minds with no centralised control of the

ideas that they entertain. Borrowing from this legal precedent says Mr. Calvin one could buttress the rhetorical case for the negro protest movement by arguing that this is the only means of communication open to this particular group of speakers. The only channel in a sense it is the poor man's printing press and therefore subject to the protections of the First Amendment. This becomes an important means of communication of the message they wish to provide. We should go very slow about cutting off in this sense. Ah but back to means of communication are outside the main lines. The last group of cases. I think we could dispose of the cases on the grounds of the invasion of privacy here so high you can ban a soundtrack. I could still winning the argument about the negro invasion I think on some grounds as a nuisance component to this that might not be present under conditions I think I could specify for the negro situation. But many if not the precedent is ambiguous meaning in the opposite direction from my desire at the moment. The

last set of cases involve the job of witnesses going on private property ringing doorbells. There is one remarkably good case where a city passed an ordinance because it had people working in a factory the night shift that slept during the daytime. At least that was the theory of the ordinance the official theory was that the prohibition of solicitation by going out ringing a doorbell was made in order to preserve the tranquility the sleep of the population. Where this is believed or not I don't know but at least he's offered the court you know this was unconstitutional and you could not prohibit it. This degree of intrusion this efforts I speak to call attention of the audience your message by going out ringing their door. Over intrusive that was never on like it was any of the people Joe the witnesses were approaching want to hear that message that you could not prohibit that by a blanket ordinance just saying it was they were not permitted to solicit in this fashion. The court does allow however that you could post a notice on your property in advance saying you did not want them to comment that would hold. Therefore there is a again a complication about this in a subsequent case where the solicitor is a commercial solicitor for magazines good magazines I mean as it turns out he is

barred by the same kind of ordinance and the court says this time that there's no difficulty with barring him because this is the commercial aspect of this activity differentiated from the religious act of the press was involved in these through this case. The strongest case emerges as a kind of interesting rather powerful president in favor of some degree of intrusion. In order to get at the audience and does involve private property for the stations to. Deal with this matter in the brain. You can pool so you can know it's a very very feeble terms of what they offer you need to get just from. It does get you to the problem come commandeering is private property in order to hold a public meeting which is contrary to the one you want to have on his property. That's where unions I forget the name of the case but a union wanted to meet it was a company town that infected but the only thing all the good old needed was owned by the company. The one hope is that more and. More. Not just of it but maybe.

But it is not gays and it's the only one in which the court overrides things my private property by saying that it is the English who hold public meetings even if you want it you have to let these people use the hall there is one thing he said the half of your point here Richard. There is a peculiar appropriateness between the speech of the locale of it which would play some role here. You can make the same. Speech you know the place and have it there for the same effect and there's something about sitting at the lunch counter you can't stand on the corner and say we want to sit in the lunch counter. Does that mean the same thing sitting in the lunch counter. The nature of the speech is it seems to usually go there to buy the other place in which it occurs if the leaders are showing great tact and sense and rhetoric really and looking where they won't say what they study. I want to get rid of the cut of the message and wonder whether I could one privilege the protest and certain kinds of clothes are public property on the same grounds if you're privileged on the street on the grounds that you we've worked out for the control the street and so forth the right to speak on it is a powerful view in favor of lighting and that sense speakers get a crack at his audience leaving on

some freedom to leave for I don't know that he need be involved in this any notion that people would be free to leave. It's just that what's really at issue here is whether the owner of the property in whatever sense that was being used or has the veto power of a third party audience what's being challenged his decision that the other people on his property should not be allowed to list of us if they wish to. It's been proposed have seriously as a way of undermining the difficulty will occur when the criminal justice case comes up in its pure form I want to be able to suspend the importance of consent or non-consent on behalf of the protest movement to protest being they peacefully unpopular semipublic on the grounds that it's not speech to seem to me to make a pretty good case. I suppose that what what. It may turn out as I suspect it does that the kind of legal theory that could be carved out to protect the movement here would be almost as narrow as Harlan's in the end and therefore might not be enormously beneficial. I rest kind of edge that in part in terms of the kinds of questions is raised that to me a bigger than in one sense in this issue is what we believe about the right not to listen as being a component of

theory about speech is that important. You're going to have the big question rude. Yeah I think so I want exhaustion from the chairman. Robert M. HUTCHENS who's moved from talks to the group with just one when we sign speak. I decided what I did or not and I guess what the problem is is any appearance of someone on your property if you don't want there in itself a kind of nuisance so that his very presence becomes a kind of interference with the use of the property so you don't have to specify more concretely what the nuisance is so I guess I'm trying to say it doesn't it really follows and there must be occasions on which and this is really relevant to the negress tragen must be occasions in which their presence on the property can honestly be set interfere with its use and the only thing you've got to go on is reason for getting him out of there is the owner hasn't consented to their being there and it's a sovereign part of the owner to get him out. I think you've got a bigger problem in that area than trying to make the Free Speech doctrine in trying to make the Free Speech doctrine cover all of this. Harry asked

Mark. Seems to me very clearly what's happening in many of these protests little. Is it the motive it is not one of communication it's not one of stating the messages not one of appealing for sympathy. These people are deliberately physically using themselves to disrupt the normal procedure of this enterprise. They're doing this because they're making the point I think they're getting at me by doing this that the man can't go back to his normal business unless the acquiescence to their demands he's got to physically remove them from the property and it looks to me like to make this a speech issue that you are taking it out or it wouldn't be any longer worth they don't say a word it doesn't make a difference what they say is irrelevant. The message may be implicit in their their presence there and the reason they're there is to greet an actual physical condition that will force the man to capitulate. I think I'm afraid that Harry might well be right about the prediction of how this will work out. Therefore we are saving them a legitimate opportunity to speak frankly on other

people's property which they won't choose to use I mean they will use it in a formal be or won't be effective I mean it it would seem that's quite plausible that you give them something they can't quite manage with any longer. I'm not totally convinced that's the way it will work I just knew there was something eloquent about the sit ins. This is a pretty good megaphone very narrowly very carefully Mr Gorman returns to a point raised earlier by Mr LICHTMAN that the effectiveness of a particular kind of communication may depend on its being made at a specific location. If in fact they say there is a particular violation at least in the more are involved and they're not being allowed to eat lunch. The relevance of that fact supposing it be granted and the more this is an abuse of the right of private property no matter how it exists that the right of private property is not absolute as regards any whatsoever exercise and that at least morally to exercise this right of private property and this discriminatory way as regards food. When those same

negroes. One fine thing else in the story at center. Back reinforces if it were admitted it seems to me the case for the location as being part of almost necessary to an effective proclamation of the message. It almost covers the encouraging hope that the tactics used here would be one of the hope that would be affected would be effected not because of the threat of violence because in this fashion the location and the particular grievance will make the silence of particular eloquent gesture. One fact I think they were as they came through to the public at large the images of quiet sit downs and the place and the facts coming through that they were allowed to buy but not to eat and they sit quietly and so on I think the message got across. Partly in function of the fact that they were doing exactly that sitting down and not picketing outside with signs we are not allowed to eat in this place and that's bad. That would have been less effective I think in some some sense though this is not your intention you are bolstering some part of the this argument because in both cases the obstacle you have to

overcome is a certain sense of drug or property to use. You do it is there the standard largely on behalf of the value of free speech which I sympathize with and I think Douglas tends to do with lodging on the back. The people protection which I also sympathize with and I see a kind of curious supporting in this instance depending upon which God you want to make crucial I think insofar as you show that the value of private property isn't this exclusive as it seems to be these privileges it seems to be supporting. Perhaps another argument if you make a strong case for the value with majesty of equal protection. The problem of private property and privacy things to be crucial here I think in some ways you want to weaken your case in a way didn't have to but using the analogy of free speech when it invaded a private home with an ego he was been attempting to avoid and to invade anybody's private home. Attempting to make use of a public place. And here's something that that was said must be of relevance the more a man opens himself up in the public area that is in terms of the fact he now is a commercial venture. The less it seems to me he can rely upon the fact that this is private property in the sense of should exclude this particular

value of speech and then just one of the comment would seem to me to strengthen the case also of the state as over against individual capturing subordinates. There has to be question to I suppose. The purpose of the indoctrination why the capturing is occurring and then the answer of whether the capturing this is perhaps the purpose of the Blackfeet was whether the capturing is occurring for the sense that adding to the diversification of views all of the capturing is occurring as a people will kind of image for the sake of of absolutely limiting the diversification of views must play some role. There when the state does it with a private group does it must be of some relevance. Edmond done away when they're having. This convention. Hotel in the United Arab community their tax incentive in lobbying little belief is something wrong. Swimming holding a religious meeting the old me would have way for me but selling a hamburger is not free speech in the sense we joined and I don't see the way that argument. With. The front implies rebel group coming to

when he should have been saying I'm just preaching the dock there is a one party leader I know you feel. Good with coming forward. To. A legitimate grievance. What's the scoop. Mostly. Listen most lib citizens schools. And schools will. Be. Gone. One was. Wrongfully. Gobbling series the terrible storm. With all respect to your who will get hurt I don't think it comes all know if you think it could. Because it's a terrible distortion of the conception of the providing of a community with an adequate form for a discussion of issues before which may at some point before the streets be used as a form within the wife when the conditions in that even conceivably the claim of private property has to give way to the PM to go out in the form where necessary you can't possibly do this seriously as a normal weight of speech activity there will be good communication that's involved the situation is to create

by this book by this disruption of activity. The story to look at the national press. I mean that's the audience that's not it. That's completely true though I do recognize that a great deal of the communication content in this is like it wasn't picketing by labor it's curious to call it communication it's coercive. It's attractive because the rest of the ways in which something funny becomes dramatic but I wonder if you can play it the other way and said Let's assume that during the last three years the law prevented the negress in making any kinds of protests of this kind and it became very very powerful. It's undeniable loss of a communication media to them. The difficulty has not been that the message is not crossed the people haven't done anything about it. They compete. We pick it up side as you say that doesn't produce the course of situation in terms of freedom of speech which is to give somebody a crack in the public mind and I welcome a re-examination of the notion of the right not to listen. I think there are situations which could claim a person has a duty to listen in many contexts and that you can invade privacy you are under some honor some situations seem to this is an interesting case so let me take a case at university which I mentioned earlier which I was hated with as I'm

reversing myself by my citing it on my behalf now remember this is last year's University of Chicago the core group sat in the president's office in order to protest the residential housing policies university with respect to rights. I thought that at the time that they their performance was outrageous probably because the nature of the room. I'm not sure I was right to have as I want to refresh myself on the position. I thought it's a terrible thing to do that. That growth should not been treated like this. But the interesting thing about this was specified properly. This did not interfere with the function the president's office at all this is not a chamber. I mean he carried his business perfectly they were very careful about not doing that. They were simply sitting in a hallway with anybody coming up to see him would have to pass through in order to get to him. There's no suggestion of violence or anything like that about their tactic wasn't obstructing anything in the function of the university and it was sensationally effective as a communication device. The Universe became so terribly embarrassed by their existence in one way or another this became a total say an event around the community and it changed the policy of the university night and I know what the word is that

we can get some social will give you some legal criteria to norms and I'm serious about making a sensational effect and this is an instance of its being communication. Why Ali. The things that have happened. Last year with the country at large and also some particular groups be as well informed in some. Analogous sense of the word in. Form as regards the sense of Negro grievances and Joe to my amazement said the only deficiency before I knew the same action as though people actually heard more and some defensible use of the word heard more people had heard something more strongly as a result of this. Or whatever legal consequence of this current seems forced and I. Suppose they had assembled solidly across the stairs and said the president can't go into his office to be clearly going through this. But let me say that obviously at some point here you get to the obstructionist aspect of thinking so much more dominant in its communication aspect that even a maniac about free speech like I'm hoping to be at the

moment would not defend a thing is communication any longer and I really think in any case for the sit down strike being viewed as free speech. That physically took over the use of the property I have a much narrower point which I'm not sure I still don't like the point is that the law seems made to almost in an anticipatory fashion I'm the owner of property with the right to refuse. Sense were all that's happening is people are sitting quietly that lunch not doing anything and the only thing you don't like about is they're very open by being so quiet. You put your opponent's question it would be hard to get a. Precise form. We were opponents folded the right to private property contains within its scope the following exercise namely a kind of absolute veto power without further examination by the law regarding any speech I've any form made on that property for any purpose in any manner whatsoever. Are they that absolute and I pointed posing your not you're not going to talk to you just gave you a good few of the letters.

Either that or that. Good ended up another with you getting cookies you see because you're talking about if you introduce two quid to dozens type property in front of it it just gets promptly. If you want to be close to my house used to be if your leader wants to make a fictive like good thinking ability will keep the house for them if the town I must know would end of decent It's not going to move the DBAs to think the thing to do. Stand inside is good side of the American banks to victories to his unequivocal legal right from the sea likely without another. Long. Awaited. Order. Very secure with a right to private property and includes this veto power as regards speech. Absolutely without further differentiation and you gave me no harm or careful about. The restaurant stuff.

So there you go. Let's list the years saw the fourth season if we reconnoiter things too often people use this for just because he had a good game. If you took this medium for profit cool. No that's private property in a legal sense of it at the moment. The laws of trespass apply to someone's consent to your presence to be there. If you group all property in the world in terms of being public or private This falls legally on the private side of the line and the automatic application of trespass notions come into play. Man's got a bigger better view and I think that you've produced more than was previously as being really being invaded we get right got me what does that mean. If they could take the one case and you take the guy's situation in what meaningful sense is the privacy of anybody invaded but a nigger sitting in the intercom. Oh. I do. Most of your customers who come in there. You're not making a much superior Snick reason later. Think that's a matter for pricing structure matter. Is he married. Listen to majority opinion by the Syrians for his sentence there. Is

tomorrow night. I don't see here you are going to stay for a good long to judge the spiritual social mission. Every time I see one slide off. Seems your whole heart is based. No it isn't it's the answer for all of these forces just raised over here. So on planes and private. Areas which I don't recognize. As private off you know the traditional phrase private property hangs over SS Kresge for example but the argument that SS trustee is private property or that people go in there white people go in there. And want to set up a counter therefore accumulated little privacy as they go we. Have this right. Seems to me it is not just I'm not just lip service or for you to serve those speeds but you've got to stand on some other wrong side first and I think the Douglas argument is the only one. Engineering can add a line which is said quickly and this is just in a sense that your I don't recall your last remark and treating the Garner case was a prediction that a merger of

Douglas and Harlan the equal protection and public accommodation idea and free speech so that in the final stand and he sank you your case really is that protest and places of quotes public accommodation quotes established by certain argument as being so therefore quasi private qualified Lee private or something because they're also public is to be treated as free speech with discrete limitations are sent home just like before because I have real difficulty dismissing frogs you know who've been few. Let's get the problems of licensing and training to restore. You've got the problem the public didn't keep it but the property is both private amusing. That's what his update will cause him to get his wish and my boss does the profit to be private because we know somebody's legal categories where you got licensed and there may be licensed company. Yeah and I think what I'm saying is almost that it's a line of trespass drugs that I'm objecting to.

I just ask one question for information that Doug use to figure out what Doctor says in the context of the government takes is to the museum a criminal statute comes up for good. Does he see clearly what happens if to restore needed to be secured you know he got what he thinks is right. Right be there Connie. God must therefore he can't be punished for speak over $400 that Douglas is concerned I'm gonna cause more of an accuser to go through a common long term statutory law of public utilities and you have the doctrine of licensing under any one of those three are extended to the facts of this case is not why it was they can be thrown out. That if it would I consider the right to be inappropriate if it cost me one last word one job one I not only was sure that some feature of this ought not to continue remains illegal because an important part of demonstrations is doing feeling indicated you feel so strongly about something you're perfectly willing to be arrested and that may be part of the situation. This other thing I want to stress here is that even if you succeed in diminishing the distinction

Republican. Property doesn't settle it because over a range of cases we can find out which of justify the use of streets and so forth. There's another raid another another side to this that even the public facilities can be dedicated to other uses such that speaking on the music intrusion the public hospital a public university a park where you want to go to rest and not hear anything with the sense in which a meeting has to be kept orderly and you know you know well that you know that you need that even though you recognize that it is like public places it doesn't follow that because it's a public place it's also a public forum and I think the limits of that are going to be imposed on that are perfectly legitimate I think it's outrageous to suggest that just because it's public property anybody can engage in any government I think I don't think that sounds head on I think if the Negro movement is entitled to the privileges on private property to entitle to on public property having all the regulations your corporator be wonderful it would be a great a great advance and I think you're willing to maybe say this with respect. He was on this issue I'm not sure but if you then take all the comparable cases that immediately come up as a general principle I don't think it would work I agree a damn principle is good reason for this exchange relates to your

problem about the sign. That's a very fine stone not responsive to the main issue as to whether or not property rights and trespass constitute a barrier. Those point however once that right made it might be that I have to be a small number. Otherwise the issues of regulation would make impossible the protest. My objection to your rule seems to be. First on air I mean is there really cannot be extended to the point at which boosts appears a nuisance is going to occur very quickly and the result is that this rule were only very few indeed drums they were very quiet. The question will be will they consider very long with the bigger of those most of those will go to the Union in terms of any mass demonstration inside it doesn't stop us from murderous tonight on the rule will tell you No I think

I would agree with that prediction of does that mean that they make up our Stanistreet. All I'm suggesting that you should exercise your ingenuity still further find that water which is in addition to accommodating these small plans a point to make things take a large demonstration. Some people get something right but. You have been listening to the last of three discussions of the Garner case. The discussion was recorded at the Center for the Study of democratic institutions in Santa Barbara. During the two month summer conference on law jurisprudence and the Bill of Rights while the focus of the discussion often centered on the issue of free speech and Negro rights the center was concerned to raise broader questions such as What are the resources of a democratic legal system for dealing with crisis issues like the race question. What strengths can the law as a democratic institution bring to the task. By

what inherent weaknesses is it limited. The summer conference was taped for our records and was not as you will know from the birds and other distractions in the background recorded under broadcast conditions. The discussions are being presented for broadcast in the hope of contributing to the public discussion about the purpose and functions of our democratic institutions. Your commentators have been Jay notes and Paula Kaufman.