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Vol. I, No. 4
April, 1956

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Integration and the Bus Boycott

In Montgomery, Alabama, criminal proceedings have been instituted against 93 Negroes active in the bus boycott (growing out of the Parks case, 670.5). Rev. King, a leader of the boycott, was convicted (see 40.3); an attorney was threatened with disciplinary action (see Gray, 560.5), after he filed suit in federal court contesting the constitutionality of the state statutes requiring segregation on intra-state carriers (see Browder, 670.6).

The statute invoked by Alabama authorities was passed as part of a bill restricting the activities of labor and unions, and provides punishment for "two or more persons, * * * without just cause or legal excuse * * *" who "enter into any combination or conspiracy * * * for the purpose of hindering, delaying or preventing any other persons, firms * * * from carrying on any lawful business." When a related section came before the U. S. Supreme Court in Thornhill v. Alabama, 310 U. S. 87, the Court noted that the words "without just cause or legal excuse" could not save the law because the words had no ascertainable meaning, either inherent or historical. But the section now being invoked against Rev. King was declared constitutional when the Alabama Supreme Court (in Lash v. State, 14 So. 2d 229, 235 (1943)) ascribed a definite meaning to these words. (Certiorari denied.)

In Alabama State Federation of Labor v. McAdory, 18 So. 2d 810, the Alabama Supreme Court in 1944 held unconstitutional another related statute making it a misdemeanor for employees to refuse to handle materials because not produced by union members. In Carter v. State, 11 So. 2d 764, the Alabama Court held void for uncertainty a companion statute making it a misdemeanor for a person, without just cause, to do any act with intent or reason to believe such act would injure another's lawful business.

In the face of these precedents, the trial court in the King case overruled defendant's demurrer which claimed the statute was void under First and Fourteenth Amendments: 1) as violation of right to free speech; 2) as abridgment of right to peaceably assemble; 3) deprivation of liberty without due process; 4) denial of equal protection. An appeal is pending.

NOTE: See action instituted in Louisiana against the National Association for the Advancement of Colored People (180.4, 180.5) immediately after the victory for Negro plaintiffs in Bush (610.9) when Federal Judge Wright ordered integration in New Orleans public schools.

State Prosecutions for Sedition

The Supreme Court, reversing the conviction under the Pennsylvania Sedition statute in Nelson (130.1), reiterated that once Congress has indicated that it intends to preempt the control of a field, all state action is superseded. A majority of the Court felt that the pattern of the federal legislation, beginning with the Smith Act of 1940 and continuing to the Communist Control Act of 1954, indicated such a design. The decision, however, apparently leaves to the states power to punish acts directed at local governments. (See majority's reliance on Gilbert v. Minnesota, 254 U. S. 320.)

The Court was not entirely oblivious to more urgent considerations. It declared: [The Pa. statute] "is strongly reminiscent of the Sedition Act of 1798." If anything may be read into this remark, it suggests that the Court might not approve of the statute on substantive grounds if that issue came before it. Again: "Without compelling indication to the contrary, we will not assume the Congress intended to permit the possibility of double punishment." Does this merely reveal the reason why the Court felt that the state may not enter the field of sedition against the national government, or did the Court really intend to lay a basis for modification of U. S. v. Lanza. 260 U. S. 377?

Justices Reed, Burton and Minton dissented.

It remains to be seen what effect the Nelson decision will have on the Kentucky Braden case (130.3) and other state prosecutions under sedition and membership statutes: Struik (130.4, 210.4) and Hood (130.5, 210.5) in Massachusetts; Knox (210.1) in Alabama; Albertson (210.3) in Michigan.

It is also possible that the Nelson decision will affect the scope of the power of state investigating committees in the field of national and state security. Watch Morgan (396.2), Raley (396.5), Sweezy (390.1), Uphaus (170.1). or Kaplan, Tormey or Luscomb (170.2-170.4).

Privilege Against Self-Incrimination

Of major significance at a time when the wisdom of the Fifth Amendment is under violent attack is the decision in Ullmann v. U. S. (351.1). Although Mr. Justice Frankfurter, writing for the majority, devotes considerable space to its definition and to a reaffirmation of its importance in our constitutional scheme, he ends by affirming Ullmann's conviction for contempt.

The petitioner, a witness before a federal grand jury investigating espionage, claimed his privilege and persisted in his refusal to testify, although granted immunity by the U. S. Attorney under the 1954 Act. The majority had no difficulty in concluding that the Act conferred an immunity as broad as the Amendment required, and broad enough in terms to apply to state prosecutions as well. Nor did it, despite its previous concern for the sanctity of the Amendment, discern any conflict between the literal language of the Amendment and the compulsion of testimony. To the argument that many other sanctions may be brought to bear upon a witness besides those contained in the Criminal Statute, the answer was simply that it was only against the latter that the protection was afforded.

Justices Douglas and Black dissented. Their opinion views the case in historical context and exposes the fallacy of holding that immunity from direct criminal prosecution satisfies the Constitution: "The forfeiture of property on compelled testimony is no more abhorrent than the forfeiture of rights of citizenship. Any forfeiture of rights as a result of compelled testimony is at war with the Fifth Amendment."

Cases which may be affected by this decision: federal—Fitzgerald, 351.2; and Ohio contempt of legislature cases in which state immunity act was involved (Morgan, et al., 396.2-396.7).

NOTE: See decision of U. S. Supreme Court in Slochower, reported in this issue (460.3) re discharge from academic employment for use of the privilege.