John Marshall Harlan II

“ An individual's right to restrict the use of his property, however unregenerate a particular exercise of that right may be thought, lies beyond the reach of the Fourteenth Amendment. The dilution or virtual elimination of that right cannot well be justified either on the premise that it will hasten formal repeal of outworn segregation laws or on the ground that it will facilitate proof of state action in cases of this kind. ”

“ Of course this is not to say that their existence on the books may never play a significant and even decisive role in private decision making. But the question in each case, if the right of the individual to make his own decisions is to remain viable, must be: was the discriminatory exclusion in fact influenced by the law? ”

“ Any person violating this section shall, upon conviction, pay a fine of ten dollars and each day's violation thereof shall constitute a separate and distinct offense.'↑ At the trial testimony was introduced showing that Gober and Davis (two of the 10 defendants in the Gober case) , as well as 'other persons' who 'were present * * * in the Court room' when the defendants in the Gober case were tried for trespass, attended the meeting at Shuttlesworth's house. ”

“ At the trial existence of the Greenville segregation ordinance was shown and the city adduced no rebutting evidence indicating that the Kress manager's decision to exclude these petitioners from the white lunch counter was wholly the product of private choice. ”

“ Such a theory might well carry the consequence that a private person so operating his restaurant would be subject to a Civil Rights Act suit on the part of an excluded Negro for unconstitutional action taken under color of state law (cf. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492) -an incongruous result which I would be loath to infer that the Court intends. ”

“ This last of these cases concerns the Alabama convictions of two Negro clergymen, Shuttlesworth and Billups, for inciting, aiding, or abetting alleged violations of the criminal trespass ordinance of the City of Birmingham.
On the premise that these two petitioners were charged with inciting, aiding, or abetting only the 'sit-ins' involved in the Gober case, 373 U.S. 374, 83 S.Ct. 1311, the Court, relying on the unassailable proposition that 'there can be no conviction for aiding and abetting someone to do an innocent act', 373 U.S. 265, 83 S.Ct. ”

“ In this case, involving 'sit-ins' at the McCrory store in New Orleans, Louisiana, the Court carries its state action rule a step further. Neither Louisiana nor New Orleans has any statute or ordinance requiring segregated eating facilities. ”