Introduction to the Garner case (Episode 2 of 13); The law and society

The tragedy of Melville's hero Billy Budd lies in the defeat of moral goodness by an apparently sound system of law is a law often regarded as the highest expression of public morality. Doomed by some inherent deficiency to frustrate the major moral concerns of men. Is there a painful discrepancy between morality and law. Which marks each as essential for the other. And yet brings them into some ultimate conflict. This is hella Kaufman speaking from the Center for the Study of democratic institutions in Santa Barbara. The studies of the center. Now the main activity of the fund for the Republic are directed at discovering whether and how a free and just society may be maintained under the new conditions of the 20th century. During 1963 the entire summer was spent on the center's continuing jurisprudence and the Bill of Rights. Robert Jones president of the Center has said that the Warren Court has already made more law than any of its predecessors. It has revised the criminal

procedures of the States it has established national standards for the economic and political treatment of on one single day it over ruled for. Under these circumstances Mr. prediction about the course of the court is rash. And he said is that recent opinions deserve study as evidence of what the next steps may be meeting you are about to hear is a discussion first of three of a recent court opinion involving sit in demonstrations the case known as Garner vs. Louisiana appeal the conviction of negroes who sought to be served at a lunch counter reserved for whites in a Louisiana department store. The store which had separate eating facilities otherwise encouraged and in fact depended upon negro patronage. The demonstrators although convicted under a Louisiana criminal statute for disturbing the peace were by everyone Soko quiet and well behaved.

The Supreme Court reversed him on grounds that will presently be discussed. Harry Calvin Jr. of the University of Chicago Law School who directed a good part of the summer meetings on the law shows the case as a model for examining the record and resources of the law with regard to racial equality. Although garner only historical relevance to the legal status of the race question it exhibits the moral and legal dilemmas facing the court question of race. What the court did not decide and what it avoided in the Garner case illustrate that the great questions as narrowly as possible Garner also marks a point of departure in negro tactics. After years of litigating every issue the negro freedom movement is now in a sense going from the courts into the streets in the words of Lauren Miller and a CPA attorney. We know where we ought to go but we have run out of law.

Listeners who intend to hear others in this series of broadcasts on Law and Society. May wish to see this meeting in the context of the summer conference. While the discussion frequently focused on issues such as free speech and Negro rights the center was concerned to raise broader questions such as what the resources of a democratic legal system are for dealing with a crisis like the current conflict on segregation and integration. What strengths can the law as a democratic institution bring to the task. By what weaknesses is it limited. Is the allegory of Billy Budd correct in placing the moral task beyond the law. And now here is Harry Calvin Jr. of the University of Chicago Law School. As he begins the first day's discussion of the Garner case. As I was saying yes this is me there's a great difference between if you imagine x is and what you know the possible roles of the state. RESPECT TO DISCRIMINATION. A great difference from the states that you must.

The race is a part of the state saying nothing or saying in effect you may or may not as you choose individually. And the state saying Finally you must not mean it as a matter of affirmative command it is true that if your only choice is between as in the school situation is either segregating schools or not segregating. Once it said that you can't that the compulsion to segregate them is gone. Then you in effect get the opposite you get all the other extreme right away that you get a situation which you if you can't do the only other alternative then the only thing available to you is to have the schools open open to all. Again if you compare the restrictive covenant issue with the Fair Housing Law it seems to me a sense of this difference as being an important difference comes up because all the restrictive covenant cases accomplished was to eliminate a state barrier to people making up their own minds as to where they wish to discriminate with respect to housing or not. It did not not go farther than that. They removed an obstacle the Fair Housing Law would in fact carry a positive command

that in fact housing distribute housing choices be made in a certain way. I had to think for some reason that's an exciting and important difference in the use of state legal action in this respect. It has something to do with the cases we're coming to as we were suggesting yesterday since traditionally this is been reached by legislation as the affirmative use of state power has been a legislative activity. The knocking out of inhibiting uses state power has been a constitutional activity and you might be able to read Mr Douglas is in fact bridging that gap to some degree. Now the third point I want to make by way of a preliminary is that the thing that strikes me is very novel about the sitting cases in about cases it must be about to come up some time from the more massive demonstrations of fellow citizens this is the negro tactic seems to me to dramatically change that up to probably two or three years ago. The tactic must have been a tactic of fighting their battles in the courts almost entirely the legal fight was to to litigate the case to find an applicant for a law school or for a college or someplace and

litigate like hell his right to get in the fight was entirely a fight in a legal form. With whatever publisher he surrounded as a matter of normal. This is a shift to I think a kind of self-help kind of difference in strategy. They could be very powerful could have greatly accelerating consequences and the working out of the problem and any event utilizes law in a quite different way than the earlier ones did. The earlier moves were forcing the court to give the right that they were they were insisting on these mills if you take the sending cases we look at today are devoted to hoping that the state will permit you to use some massive demonstration tactic which will force the other guy to give you what you want without the intervention of the state. He will be forcing some kind of a battle of the street so to speak to surrender. The thing you want without going through the tedium of the attrition of litigation. In other words that the tactic lunch counters is you're being pursued not by litigating the question of where the

constitution they can be kept segregated. But I think by trying to force pressure on the on the owners to surrender the point and leave them open. I want to get a little bit later to what we really think the negro tactic in the Senate actually was the point of it was the interesting point here is that this is the use of self-help. What the negro wishes a lot it was simply stay out of his purposes the only thing the law can do is to hamper the self-help tactic by in some fashion arresting. That really the way to characterize this is Joseph Guzman. I mean why do you hold self. Right because it's a we just it's a people we try to be one of the more. Yeah that's right yeah. And it's an appeal more than by persuasion. If you go back to Labor Days It's a phrase that became very popular and in analyzing what labor law problems were and the problems were to decide what the degree of privilege self-help on the part of unions would turn out to be the unions had a few more weapons it strikes. They had picketing and there isn't a perfect analogy obviously between the kinds of

things the Negroes can do in the unit because the strike was a very powerful weapon. But there was it was a kind of convenient way of talking about all these kind of self-help measures even you could take in the state and stay out of this. The unions had great power if they could they could simply exercise these three nuisance tactics so to speak in terms of persuading employers to give them what they wanted against the threat of having them use this particular tactic. In essence. What the chairman Mr. Hutchens you go on another man's property and recapture the wrong one you love him so you for trespass but you got the property without going to court for the purpose of recovering. The South has picked the wrong case every time including the ones that came out in May and it was almost marvelous and up to two it's completely one case every time in the cases with the head of the Marburg really on the court who wanted to adopt him to be one of the must not discriminate. Richard Lippman in the case where he studied the law that's an economic social to the court. The

plate is kind of neutral rather than the outside somewhere. He's played both of the tactics depending on whether he's legal because of the boss leaving because as Frank Perry says it was the. Most interesting things that said by any of the judges in this case and they might well that's what they're here to persuasion would work I mean this is this is picking lice where after all these people were very careful not to lose their legal clientele and if they are really concerned about that and therefore get a kind of happy situation for trying if this wasn't simply a blackmail tactic was a tactic that might actually be persuasive under the circumstances because they more than that they were trying to avoid a. Head on the question of trespass. Harry Ashmore and they did this by saying they could not invoke trespass because they were invited into the establishment for other purposes and they were already inside. It seems to me on the proposition that all of these cases Harvey wheeler from the Negro standpoint can be viewed as having been orchestrated from this from a

conception of what ought to properly be presented to the Supreme Court at a given time are ultimately presented to the Supreme Court and from that standpoint the Negro movement is a federal movement and almost is destined to win by virtue of the fact that the opposition to it is decentralized concerned with and and calculating about. What. It is to end up in the Supreme Court. Well I think that's true. And it just knows more about the fact that my impression is that the nationalization of the and the lay sleeping in terms of legal talent for example is very impressive that they can go from coast to coast or any place instantly with with you know first rate trained people that are on top of the problem I guess is of Arkansas or Birmingham or someplace gets when these problems are his it's that little group the first time and they don't have a national union so to speak of experience that probably does make a difference if one acts or to grieve the event.

The wisdom of their choice. Judge Edwin Dunaway and certainly most of the so the defense has been in error. Thank you slightly overstated when you say the shutters you mean and the chase is designed to give obviously didn't have the maturity. You see a little and then WCB It's a cheesy blared and. Nothing of it. And they are being very clever and maybe maybe I think one is thinking about these cases is it not probability. The grounds on which the majority the court has rested their decision are transient. In an opinion of Chief Justice Warren expressing the unanimous view of the court the conviction of Garner was reversed on the grounds that no evidence existed to support the charge of disturbing the peace. In a separate concurring opinion Justice Douglas held that although no statute existed in Louisiana to enforce segregation the encouragement of the public by the mayor and the police chief to continue segregation being acts of officials of government

constituted state action and was therefore unconstitutional under the 14th Amendment. Douglas further held that although the lunch counter was privately owned it operated under a public license and as a public facility could not therefore call upon the state to enforce its policy of segregation. Justice Harlan concurring in a separate opinion held that the demonstrators having been present in the store with the implied consent of the owner were exercising a form of free speech from the narrowness of the rulings. Mr Calvin concludes that had the demonstrators been arrested for trespassing upon private property under a criminal trespass statute the court held that it can constitutional. I mean it did not take it off the south the Besa criminal trespass statute that would be held constitutional and so far as what the court has so far said that we don't that would go for her and everybody except Douglas and I was doesn't look like he's carrying the rest of his brother in with him because they're conspicuously silent about his views. They want to disagree with him.

Now that I think what this means it means that the negroes are going to win here. On a point that doesn't hold me they're going to win on the point that temporarily wins because they select the cases carefully. And for the moment they're winning real victories that are short term. By the time right case from the South when you get to court again. It's going to be too late probably to change the custom of it really fractured. Let me understand. W H ferry. It is parsed so you see you are a trespass. Why do. Government in this case Jean and there would've been a totally different result applying to I had to park or pressed in which customers are invited to one part of the store became a bit in other parts of your dinner invited by the owner to leave there be nothing other than owner's decision he was in the leaves involved. Is a status and you stand someone's property without their consent is a criminal offense. I don't think it's possible I think it's likely. That the court would in fact.

Those best. Of all the 1961. Amendment to the. Structure. To report. Here. Which they're softer than. A man to fish that might well turn out to be constitutional. Perhaps. Something of that. And. I'm going to have a look at the later Casey. The laws of man law. Hang me any share geisha or that's right and handing him a vision jackass Yes indeed actually see him as nothing funnier than the rest of the cases when you look at the if the public health of what the court's done for itself. If you want more around seemingly Harun you know other people who want to serve the. Least of they would be on the OG interest not the new custom we might be able to carry. He went along and I'm sorry this is a long established local custom and it was the sheer number of laws on the air is building up the sense of discrimination it's a spillover into this area which is a matter for them isn't any chemical and we decided because I silently disagree with Douglas and I think they may be close to him on that point and they would be on the public interest the licensing business with the what is the other

thing. Was what is the evidence. Well said to him I'm not Lego like. Detected in the last cases we met for some of this kind of language creeping into one of the warmest it. Marginally about the major decision of the court there are five remember was the statement that this was a game the decision made was it lovely The police chief admitted incision the mayor. I don't see any great gap between doing that and taking acts which are not specifically literal decisions but in some sense of having a long history in terms of the vision behind them. Why yes that's possible next decisional invited in the most and they think they come around with the right case in history. Counsel in this case deliberately attempted to avoid raising the trust so sure the majority of the court went along with that. They made their ruling wholly in question to the applicability of disturbing the peace that's very different and again is because operate there that I some of the neighbors pulled a crime and which he had a very inept old statue the lesson designed to meet the situation at all.

They couldn't even get to the way they were and the first time a great time the thing came up another ID. There's a lot lot in there I think for us to speculate about the role or argument to jump ahead to another. Reaction I think in general the civil liberties triumphs have gone this way. They've involved petty technical wins. Which because of the tedium the cost and so forth the inertia of getting another case up it turned out to be permanent triumphs and therefore there is something for the conservative court frequently takes exciting thing it is possible as long as it cites it right. Let me weave this point for the moment at best at that. I think what we're looking at is a dramatic switch in the Negro tactics insofar as they involve the use of law it seems to me that that point is reasonably agreeable to the company as a state and to have that shift is that from drawing for purely or strictly and technically legal victories they are trying to define the area of the mall which will permissive

Lee regard as their so-called help self-help techniques. It is the I think one way of making clear what it's like in this picture. Eccl. Harlan suppose they decided at this point that what they ought to do is simply use propaganda that they've gotten a surprising get in the courts what they now should do is try and persuade people by writing books or articles and so forth. The negro view in phenomena they're entering the marketplace of ideas and that's all they're going to do. And then you have laws that prohibit certain kinds of propaganda that then the negro legal position would be that what they wish to do is have the law stay out of this let them say anything they wish to about the race question and see whether or not people will be persuaded. Now there's darn close to what in fact they're doing with these self-help tactics I mean it's a different tactic of persuasion but the idea is just don't stop us and we'll be able to bring the other side to their knees and without your help I mean we don't need the law to do anything so people order and keep keep the other side from using the law against us to keep us from using these types of tactics. Pursue just a bit further the idea of a right case.

John Wilkins instead instead of as I would say it's a right Case in point this out and I think it's perfectly wrong. Yeah I do. Now Don you had write quote with quotation marks around it. I don't want to act as a sort of his chief of staff or a Southern reactionaries. Suppose the barbershop case came up and the barber refused to. Cut these Negroes here on the ground walls white face. We believe now this is perfectly possible and quite even likely is even quite likely it will get your wife to cut your hair and it would disappear right case with the Supreme Court saying letting the Negroes to use the Barbershop. Would deprive a man of his livelihood. No I don't think it might be but I think that we're assigning. It gets out without without needing the specific poignancy of your example I mean that it says nothing on behalf of the white rights as a special white rights in the situation other than the side that there are some old rules about the use of private property.

In about the need the sovereign power of the owner was probably decide who gets on it that day what was at issue here was really the vitality of those rules as applied this new crisis situation that would be easy to take care of those are because what would happen would be the just water down the notion of private property I'm sorry the last sign is that the court would not have I mean making it legal protection. My legal prediction would be that had the case had the right case come up in the sense that there's nothing in these opinions that gives the slightest shred of. Hope that the court would decide. To water down the boundary line of private property. These are great victory standing on a dime and it's kind of breathtaking that it worked out that way. I could be won't be very easy to be wrong about something like this but what the courts to lighting in here I think is appearing to be running at full speed ahead on behalf of nigger rights when this mere fact is running about an inch. I mean that. Was a terrible metaphors like the obvious the success of a move like this depends on their winning every time legally. If they begin the cross whatever the legal boundary line is going to turn out to be and get set down.

Then then I think you get a quite different reaction probably on their part and it's encouraged much of the force is a resistance etc.. Plus I suppose just in simple terms a kind of popular appeal for people peacefully seeking to get their rights and maybe begin to get real negro violence. I get a great deal of the white population is sort of mainly tolerant on this issue than they would with something else. It's being with the president right now that excited about it. But why Biden starts breaking out this I think I remember there white or something I'm going to find him while I lined up the other way. Mr. Calvin turns next to the way in which the law's attitude towards self-help and race intersect. Being two well established legal doctrines to a special point for the court has always been concerned with the objective of any particular tactic in the sit in cases the tactic is to set in. The objective is to be able to sit in. I think that self-help has as great jurisprudential significance I mean as something that was a legal role of the state in the areas in which the state enters and does not enter in the

way in which law is involved in situations which let the parties use their. There are as I said when we put down in my notes a do it yourself legal remedy was a mare fact most self-help measures even involve the use of force is this a self-help tactic and therefore have been very strictly circumscribed by the legal system. The standard situation is a situation of self defense. And various defenses of property that are almost exactly analogous were under very restrictive conditions. You are permitted to dispose of an objectionable interference with your rights by using violence on the other person. And the law's role here is to let let you use your own physical force as a method of redress rather than to wait for the day in which you sue him for hitting you or something like that. There's a very complicated profile the law self-defense. But the interesting thing about it from the point of view of the negro issue is that sort of a calculus of necessity and urgency with a high degree of necessity of vital interest being endangered and it being quite urgent that something be

done about then and there not wait for for a later time. It's only by a kind of crude analogy that one can analogize a negro view of their situation the one which requires it. More dramatic more more rapid fielding than the law itself will provide and therefore these moves must be made in a self-help basis because we can't wait for the for the law to do it. To a considerable degree there I suppose really frowns on self help I mean the old image that the state wanted the monopoly of force to itself and that by gosh they in an orderly society you have your controversies by going to law about them not by handing them in some vigorous fashion yourself. I have an old case which I thought I'd read you from for a moment because it's kind of an interesting statement by a court in a kind of routine matter about the limits of its judicial tolerance of self-help. I think this does support the idea this is in a sense a a well understood well worked out. Legal tradition it's a quite interesting case but I want tell you what it's about a minute is this the

man's attempts to gain by force and money with someone is just taken away from him by a trick and they're still in the same room he get into a slight squabble about recapturing the money and the fellow took the money then so is the man who was trying to recapture it for for the battery on him and this is from year one I guess they now 1891 Rhode Island at one point as opinion goes down the side of the law does not permit parties to take the settlement of conflicting claims into their own hands because the right defense but not of redress the circumstances may be exasperating to remedy at law may seem to be inadequate. But still the injured party cannot be the arbiter of his own claim of public order and public peace are of greater consequence than a private right or an occasional hardship or inadequacy of remedy is a frequent occurrence but it can't find its complement in personal violence. Fund these grounds are documented for by the defendants is limited to the defense of one's possession and the right to recaptures against Iran. You see this is a general legal view that you read quickly get to the body of self-help.

You can't simply say it's exasperating wait for the courts by and large were against it. Now a new kind of problem when you shift to nonviolent self-help which is only what the Negro regard themselves as using it is in fact using these cases and that gets to be quite a complicated thing in terms of what the prior experience with that has been as I said yesterday the chief experience which has been the use of labor of mass tactics that are roughly comparable to the demonstration tactics of the Negro but not more than roughly comparable. There's been a longstanding dispute in American English law as to whether anything that one person is permitted to do. A group of people may be permitted into those numbers ever make a difference. I think now it's thought that they do make a difference that collective boycotts quite different from a single refusal to deal and so forth and therefore they there are certain kinds of mass tactics that take on a course of aspect simply because lots of people are doing them that they would not have if they were done alone.

I didn't have the kind of. Funny thought goes through my mind I probably respect the negro question. It's only because many are doing it that it has any claim to legitimacy at all that it takes on significance in the fact that it's a group movement and a single negro running in dissent as well and it is at a lunch counter probably would get no sympathy from us to be viewed by a different image and to question them as picketing. That's been up a number of times and the courts always turning on the same thing they have a pale moon regulation of mass picketing while it has a terrible history of Murphy when he was on the court and the famous opinion aside it was free speech and it's a view that I think almost no one else is been really sympathetic to yet a kind of point was of is a form of demonstration and so forth. But he was going to give us a categorical free speech protection. And it is interesting to note that Holland tracked this case out again and it was not beside the Thornhill case in 10 years and suddenly her in the West. Suppose he's a very hard headed lawyer and would probably hate this kind of repressed in the labor case finds it very handy and since he's rather congenial a special view he's taking what's going on here.

Weather observations a labor thing would suggest here one is that the courts became quite preoccupied with what the objective of the particular self-help tactic was. Now it so happens in the sitting cases the object of an attack to get in a coincide exactly with the tactic is to sit in the objective is to be able to sit in. But if you've got if you move that around a little bit I mean if the objective were suddenly to force all people in Birmingham to fight in their homes and take some kind of extreme cases to make the point and you're going to have mass demonstrations until people are burning it might open their homes and invite him to dinner. Then I think the court would be forced to decide. Analogous literally to labor cases as to whether the privilege exists only in cases that are regarded as justified by the legitimate objectives of the Negro movement or whether they're justified because they're peaceful proper things you can do and you just can't stop them is that a Labor thing is is all gone in terms of defining proper labor objectives and saying some things you can't. Secondary boycotts become bad in certain kinds of strikes become a bad thing and therefore that the objective becomes as important as the tactic. I mean you can strike

unqualifiedly for any purpose. You can pick it for any purpose. The one other thing I think we might say about the labor thing has something to do with the Ministry of law interest here is that it's widely regarded as the kind of issue that the common law could no longer handle began as an issue to question him in a common law basis. Is that in this case in that case and so forth it became so explosive in terms of the difference in popular feeling about the need to regulate a wider area than the court to regulate a single case became so obvious that the tactic has generally been one of a sort of code of regulation for the entire problem almost as a separate body of jurisprudence by itself. It starts as a tort doctrine and becomes as we say emancipated as it gets so complicated in terms of what's required to solve that problem it takes very special legislation keyed into own probably only the labor problem I mean this is very little do they thing else. That suggests faintly that the Negro thing got it was going to last long enough and if it got active enough you might get again a kind of code of permissible negro self-help behavior not

permissible. A very elaborate balancing of regulations something like the Taft-Hartley I mean we have this kind of swing back and forth is how liberal are they and maybe with administrative tribunal as in There is the immediate arbiters of the issues like this because they should be so rapidly that they experience with the labor the thing is that the legal system was not capable of handling that by its normal traditions and tactics that became too difficult and it's something more comprehensive at least was required. My guess is that in some ways a negro movement's much simpler than the labor movement is an engineering thing in terms of the number of things Negroes can do. Are much less the number of things that the worker could do because the strike is such a powerful weapon is not present. I think there are many communities that in effect have. Sort of. Regulations and boards it was true the rate was reduced to a all for execs to do with whether they would. If you had this problem in the north I don't suppose I'd have anything to do with the trespass.

Mr Calvin now takes up the question of criminal trespass. The lack of a criminal trespass statute in the Garner case made it possible for the court to avoid ruling on the broader issue of segregation at the time this meeting was recorded. The court had not yet ruled on the conviction of citizens arrested for trespassing upon the private property of store owners who had apparently on their private initiative refused to serve negroes. The distinction between what is public and what is private is so crucial that says Mr Calvin the strain of solving the negro issue today could force a revolution in our ideas of private property since trespass to land seems to be so involved in these cases it might be sensible to say a few words about that noble doctrine which is here again you have a long standing legal tradition. With respect to the topic that's where God in general is so the simplest of all legal ideas and one of the oldest and the ideas really nothing more than you expected to be that if you enter on the land of another

without his consent to remain on it you commit at least a tort and that interestingly enough you need show no harm he can sue you simply for the violation of his absolute power to dispose of the land any child no harm and he can sue you for if he wishes to collect the trivial damages that might be involved. The offense is the entry without consent it is nothing more than that then isn't harming to enter without consent. Absolute idea of the integrity of the property thing. Also he has as you might expect certain self-help privileges respect to getting out of there that are kind of moderate I mean it's a long hard to say exactly where they stop because they merge with self defense but I think it would be assumed that if the kind of crazy hypothetical cases we try and put. Teaching this if you imagined a massive person when these these professional football guards or something sitting on your land peacefully saying to me very clear it was great legal advice saying I want to understand that and that threatening you with anybody I'm just not going to get out of here. So the only

force that any kind of force you have handy that you could use to move in this is going to be obviously insufficient. I don't think you could use that group of force would be necessary to be successful there without committing authority against him if you could believe that his presence there did not represent any threat to you personally in the trouble this kind of hypothetical It was like having that would be sitting there at some point the example begins to dissipate but in theory at least the system says that there's only a moderate amount of force is permissible by way of eviction and then you've got to go to court yourself. There is as is these cases illustrates up to recently I would set back an almost never use of criminal trespass. I would I would guess that if one went back for the last hundred years apart from the race cases that the instances of criminal trespass being I would I would think are almost zero in the cases where this is. I'm just going to do that. The it has something to do with how longstanding the erosion of the idea of private property is a common law which I think is worth noting if a man talks and another man's bought during a

storm. And without its private properties without the permission of the owner of the property the owner of the property being that exactly good Samaritan cuts the boat adrift and as a result the people in the boat that were trying to dock are injured. The lawsuit is a suit by the people who were injured against the owner of the property for exercising a self-help move of paying the boat adrift and the court has no problem on the side and they recover. I mean they they had by necessity a right to dock his dock. For the time being at least and he had no right to self-help left by way of. Interfering with it. I once made up an exam question based on that. Which I think illustrates how far this could go I mean if you imagine that they get the fact the owner comes along they see each other. And they get into a scuffle in which the owners attempting to evict in the kind of voters attending this day. And there's some violence used. I'm sure it will turn out that the law would say that the owner that the man in the boat is in defense of his property right in the owner's property and therefore has a legitimate use of force is against the owner of the property itself. And

this will be regarded as is quite conventional attack and for a long time. Therefore there's something quite spectacular about this degree of suspension of private property rights in case of a case of great physical necessity for everything changes if in fact the property belongs to the other man for the time being insofar as he needs the use of it because the necessity. If you stretch the notion of physical necessity to something like social moral necessity which other mad dogs with. With but it's in some senses lately there. So I say the only reason I cite this is practice so interesting and partly because in fact it indicates how often radical. This kind of of qualifying the boundaries of private property really is. In the very common occurrence of the bartender who throws a drunk out of the saloon. Is he entitled to do that or is you have to call the police to remove it or ending on an exactly how he does it and what the other guy's interest in unprofitable litigation will turn out to be. Probably in most cases the bouncer uses more force and would be entitled to but he has some privilege of eviction. Would there be a finding possibly that if in

fact the drunk was disorderly and noxious and the order to go in he didn't go would he be constrained then to call the police to Reno he be permitted to to a victim mitigated victim without physical violence or if he could use physical violence if the drunks threatening quality suggested that there was some self defense problem involved. And in fact since cases like this customer got a jury would expect a more commonsense response than the law actually formally gives and I was trying to relate it to these other cases where in fact they did not attempt to remove these negroes I don't know that they allege they were disturbing the peace but they called the police to remove them. There's be no requirement in the case of this kind not involving race that you had to do that. Not know it is interesting to speculate what would have happened had the South tactic been physically remove them with bouncers in this general fashion as they probably didn't do due to supporting them out there without it worried about violence erupting if they tried it I mean that probably would have been a dangerous technique. Oh then a rather peculiar one lately if they'd been able to do it physically. They could have avoided these great issues from coming to court for simply picking him up and carrying him out.

If a disturbance is going on you're not required to wait until the police get there which self-help remedy in that sense is needed is still available to even the police are available. But if there's a limit to the force you can use and the use of a gun to use a real strong arm tactics undoubtedly in theory. Exposure to liability and maybe in fact as I say there's been a lot I suppose since a year one practically the idea that an innkeeper or a common carrier could not discriminate and as a matter of common law. But not because of any association with a Negro Question Given the fact that these cases arise in drug stores and restaurants and so forth. You get one of these breathtaking legal ironies of how close a question comes to him and south a hundred years ago this because of X and classification. It's quite a neat point as to why a restaurant is not an inn. If it had been the restaurant would have been under the innkeeper's obligations that would have disposed of the question and this is by an eyelash and in fact is very little law I had occasion professionally a couple years ago to look into this and I have very little on this point is really I mean it is very hard point to settle the roots of the thing make them rather close ins with the smoke

but that's where I go it was a great inconvenience not to be able to take part in one but now transplant that. It might be the case that any group would have to travel some 10 to 15 miles in industrials of the Center where he's working in order to be able to find a place to eat and then there's the convenience the inconvenience may be more comparable than it just seems on the surface. Well that's I think that's probably right there is there is a germ as Douglas expects very heavily genuine analogy here between this idea which is actually uncontroversial and conventional and the kind of thing that probably isn't the proper he wishes to establish I think was striking me as being kind of funny is that as a legal matter it's the most simplest most trivial distinction possible that arrest is done in and if it were these particular cases if they had been bought lunch counters is that to be a fluke would help a lot of other cases but for this these particular cases would have been this was of 200 years ago by the English common law without any regard to Negro question at all and that at some point is really making those applications for ROOM. Hotel in this denied. Would you. Automatically have a common

law of finding that you can't do that. Let me jump on that. What happened as I said yesterday when the whole Civil War thing. Move down was of the northern states about 18 or 20 of them including Illinois and New York passed so-called civil rights statutes. In a sense expanding this this particular common law rule by making the extension to restaurants that the common law did not make is a matter of innkeeper and therefore made it a statutory offense both criminally and as a matter of tort to refuse service to anyone because of race color or creed. In most of the Northern jurisdictions she had this overlay the statute and the common law and take the particular case in the book I was talking about has both points raised. It is interesting in terms of Negro strategy that this particular beef and its really insane talk to a Negro leader about this at some point because my impression is that. I don't know what the situation New York is like but only recently say within the last 10 years in Chicago has the better hotels been available to negroes. They are now but they weren't earlier for 75 or 80 years Illinois had the statute on the books making it an offense for the Palmer House

to refuse negroes as it always did. It never appealed to the Negro movement to go after this particular target even though it had already available to it. Quite a powerful legal instrument. It makes it quite interesting as to why the tactic is now thought to be so desirable in the south. Expect the same kind of problem. Having having really very clearly deliberately decided not to use in the north with a lot much much better shape for their purposes and self. And also I don't know what caused the hotel to finally change their mind make or be gay had its first demonstration in Thompson's restaurant in Chicago and the opening of restaurants and hotels in California Santa Barbara Pasadena and so forth. Your rise accomplished although it's in the California constitution it was done without use of this legal remedy it was done without a legal remedy it was done by a nonviolent demonstration take me once and there is one funny bit of learning in this that does Alexander Woollcott. Showing how neatly the law analyzes things he got in a fight with the shooter

brother some years ago and they brought him from their theaters he brought a suit under the New York civil rights statute for being kept out on the grounds he was being kept. They're simply telling the state to keep it in keeping at people you don't like it. It's only if you do it on the grounds of race color creed that you can't and therefore that it was are perfectly OK in keeping well. This is a. Fair question. Mr. Garment question returns to the discussion of Douglas's opinion. Douglas held at all that the star was a private enterprise. Since it operated under a public license it was a public facility and state therefore could not constitutionally enforce racial segregation. Since it was Restaurant and Bar case why didn't he settle for this small extension of income law particularly because it's going to pay for something to do with tenuous distinctions on. What constituted as inflation of that of this region are all and it's true the second case and he repeats this is this back last night when this this one bar case does it

better he makes more use of these press the second time around isn't it because he's simply laying down the principle upon which he wishes to state that he will decide all such cases when they come to him. Runs away that's another question but isn't he laying down the principle now bill raising the question why he throws a license on a whiteness of Genesis he certainly alienated some legal minds by the generosity of the step is taken I guess pajamas position was we could've taken a much narrower step. But this is when you go back and said All you have to do here is expand slightly the common law definition in here in this particular case particular cases or that would be obviously you want to do much more. Maybe encouragement. We're trying to educate his brothers who I think he was the one judge that didn't make one answer this if he was the one judge of the whole group that obviously meant to decide this question for keeps. If the others were deciding it temporarily he wanted to put it away. So the point is that if you take the categories of public private property that the law traditionally had one category was innkeeper in a common carrier a second category was legislative development of the idea of a public accommodation. Were interesting

enough the legislation itself has the concept it's like a common law concept except it's found only I think in this legislation in this form and it has considerable extension and it includes the barbershop and includes it gives some preexisting point to Douglass's view that places open to the public in a sense different from places are not open to the public and the laws always had that notion in mind. Although I think it is true that the only place it ever had that knowledge in mind was respect the civil rights that is affecting the negro question. But there's 75 years of legislation using the concept of a place of public accommodation enumerated very specifically what they are. Which strongly supports the line he's drawing which is a line somebody else drew before Douglas drew and therefore it has that advantage. The third point is a nifty point I have of my own that I'm delighted to bring out and that is that the there is a problem and they feel about the obligation of landowners and people to come on their land in very briefly to get to the point I want to make about this. The law has solved it by classifying it the status of the invitee as its way of deciding what kind of obligation the owner owes him.

I think the best thing you can be in the temple legal legal categories is a business visitor. And it's better than being a social guest which is in itself an interesting reflection of values but the current law has all sorts of tricky minor rules about detecting when a person is or is not a business visitor. When this is a business arrangement obviously they've had great trouble with things like department stores and some very funny cases such as if you come in to use the bathroom or you get out of the rain. You want to Marshall Fields and you had to get injured in the course of that. It's quite clear you did not intend to buy anything that time. I you Businesses are not in the law very solemnly debates this kind of thing is a Massachusetts case in which a guy came in to mail a letter at a public mailbox. If you only buy a cigar I know he'd have ended up with a good case of liability didn't. And they're all very very sound like working that small line without a point I wish to make about that is that Dean Prosser who's a great expert in this stuff wrote an article a few years ago arguing very powerfully the law had gone wrong in

terms of its own traditions on this problem. That they should have classified the places instead of the people they should have private in public places and in fact this was the original law that somehow got messed up. It was quite clear that certain places were open to the public and if they were open to the public for it for that purpose they made no difference what the invitee was it was he was a member of the invited public and should have been the relevant judgment. Therefore Department star in that sense was emphatically open to the public including the guy that came in to use the toilet and so forth. Now this the thing is that here again you get this kind of resonance of Douglas's distinction you see this is this is again of thinking which is occurred to people previously as being a kind of powerful. Indication somehow the place is open to the public are different than places that are private. And in fact I think that's really the best most recking support for the way in which Douglas is thinking about the problem. Do you have any inclination to probe a little further what the specific point of the sit in tactic might be thought to be because I think the sense a legal fit with a problem must depend somewhat on the function of the tactics and Harry get some views about that at the time. Why did

they do this. What were they hoping to accomplish by doing this I think. There is a concrete example. The last sit ins and little. Were started at the beginning of the Christmas shopping season and the purpose there. Shank jam is a good place to be segregated which to scare off. Other white passengers for fear there would be some sort of groups in the story so that makes exactly a self-help tactic to coercively in that sense force the owner of the store to yield rather than lose the patronage because this was so conspicuous at that moment of growth. Troy thank you long time. There involving the alligators. Calling the spring very serious health visitor all the same kinds of things into the hand but the point there in Detroit and this is a sort of generalized protest they have now been I feel

of they exhausted this sort of large scale demonstration. They're now considering loading the aid alligators in the new city park to haul off 40 people apiece. The purpose here is a sort of generalized protest. No jobs not enough public jobs. Too much de facto segregation too much segregation on federal jobs in the county and so there is no specific object is just how can we keep up the interest something got started. How was the was the law register such that they're all expecting or hoping to get arrested on the straight. Yeah I don't think you can tell and I think that you can see that the fragility of the creativity of the Negro movement will produce a whole series of ingenious self-help moves that are meant to be a nuisance. They are effective and will have leader cut legal tender was made against them and I don't the be kind of foolhardy to predict exactly how this would come out and there may be a whole series of things it's permissible to

do as it turned out just sit ins where you just say the object D.A. is generalizable son I have to be what I want to be just be judged on the fact that they're making a hell of a nuisance of themselves. No city and county business didn't go along because all. There's a misfortune on the 24th of August for us for one reason I think I raise the object because it has something to do with the so-called sociological reality that the courts put on recognizing in the cases because they are depending on what you thought they were doing. Your legal judgment about the propriety of what they did might vary the if this is a protest that kind of picketing meant to simply make salient the public mind their cause. Then you're moved very close the free speech aspect of this thing. If it's simply a coercive tactic like the interfering this Christmas shopping meant it meant to deal an economic blow to the owner of the store then you have you have something more disturbing to handle so to speak in terms of the of the vigor of the self-help movement the question What are your privileges for this purpose. One last thing as I said before it's rather interesting that so far the objectives of this if I was gone sided with the moves I don't see why it would continue to be true. I mean they

didn't have labor U.S. labor began to strike for reasons quite wildly removed from their immediate economic self-interest. Once you put this particular gun in the Negro hands I mean to talk harshly by for a moment I suppose I could shoot anybody even my Can't they use it for any purpose that occurs to them as opposed to using it simply for purposes that are so narrowly within their legitimate objectives of the case decision with the pollution that there was obviously an immediate purpose of these processes as problems develop in the industry because it was all the signal to reverse and that was simply to make the community if Yoona doesn't permit them this is the counter they are the communal functions not the. The general intent of this is a movement is to make them with some of the best in the book. At that point the collision of other legal doctrine probably would control. So that if we imagine this rather bizarre case I was putting before it's kind of hard to get a realistic example because a negro woman has in fact been responsible and sensible about what it wanted. And there's no sense in giving interim examples because they're not they're not really the problem but if they decided for some reason along the line you were

indicating that you really were not you weren't an equal in this community when you got invited to their homes for dinner. And therefore by gosh whatever the tactic was I was going to be they're going to use all the elevators in the county building to something like that to bring something to a halt. By kind of peaceful nuisance until they were invited in till X number of negroes were invited to dinner with him into the matter. But the I would think so then I would think a lot would analyze it probably without regard to the year the race component of it and sadly they were being peaceful amping and so forth and so on as they do in these cases. The length of this argument is the very basis that there is carried out the dream right I'm not sure as I think he's in trouble probably mean we can look at that layer is whether he is logically in trouble with respect to the fact there is any terminus for his argument. Does any of the above between all the socialization on the one hand. And in the U.S. along the other doesn't take this seriously now is it anymore is it as significant for a negro to be able to eat at a public lunch counter when there's a negro lunch counter available to him as if to be

able to eat in someone's home. In terms of the kinds of values about human ignorance of whether you might guess that the more important that you would be in someone's home because that's that's really becoming unequal. Alex CAREY It seems to me you start out looking at the whole movement and see that there's a fairly simple human requirement being. Asked by the Negroes which is to be treated just like other people just like white people. And they clain any fact. The distinction that is being made by these proprietors of businesses and by the state government and so forth are irrelevant distinctions. And so those all supposedly educated thought now who get involved in this incredible tortured in direct. Kind of reasoning what I don't see what. Douglas makes that long list of all the statutes of Louisiana. Which are prohibiting actions on the part of

Negroes or on the part of whites in respect of them which seem on the face of them to be wrong. The statutes ought to be struck down. Now what is the advantage in the long run of the legal process of the legal reasoning. What social facts or long range dangers is it perceiving is a guarding us against one is very much a question of Rawson that like a question. Let me not exactly answer but simply talk to it but one thing I think we ought to keep in front of us is a kind of Turmel question about the cases is whether any of the opinions as I think you're indicating get what you it is a talking not legally is the real issue in this. Satisfying it all is comments about the issue is it something. Or bleak in obscurantist about doing which they go about it. Then I have real sympathy for that point as at some one here it seems to me that there isn't the kind of perfect perception of the issue and stating the opposing tensions in anything

that the court argues about. Any of the opinions on the other hand I don't know that I have so much sympathy for your concluding phrasing of the question I suppose a sense in which this was called a crisis issues to see whether the preexisting commitments traditions etc. of the society can handle no problem like this without changing every every rule they've had previously. This is a legal perspective. So how can she fit this one in without tearing the society apart in the process of doing it and it's because of that image that the traditional the respect for private property for a whole series of other rules that come into play in the law tends to be rather heavily appear to be supporting. Now it is true that there is no guarantee that the at the heart of an issue will be the heart of the legal analysis through which the issue can be phrased to me I mean to be raised from slightly more. Say. Promise law legal remedies. White man's law it's written for white men for white men to problems for problems the negroes will

never confronted. We are slaves. We have been slaves we come from slavery been defrauded of our property systematically for many years sold of. Private property had in the white nonsense has no. Real connection with our problems with our birthright for a slight. Call. That one of the essential here. When you say well look present. The look present law year old remedies for their protests they say up to a point yes. Essentially. The you know the problem is that the laws were composed of white men not against nigger not against except in some in a few cases but they were as a class all in this country works as a class against negro. Rights and things. But they said that a perfectly terrible point in fact you could make exactly the opposite point that nothing is more moving.

I think they're more impressive. Than the progress that they've been able to make sure that white man's lot in the last 15 years and I think in my view of many negroes that is handed out. Civil war. Never leaves a back room Osama. How much progress we've made on these lofty response. Or you were seduced to make progress. WALLACE Are you going to make it you have been listening to the first of three discussions on the Garner case recorded at the Center for the Study of democratic institutions in Santa Barbara. During the summer long conference on law jurisprudence and the Bill of Rights. The meeting was conducted by Harry Calvin Jr. of the University of Chicago Law School participating in the discussion where the chairman Mr. Hutchens Joseph Tuscon Richard LICHTMAN Harry Ashmore Harvey Wheeler judge Edwin Dunaway W.H. ferry John Wilkinson William Gorman and myself this is how Kaufman and Santa Barbara.