383 U.S. 745 (1966)
In October 1964 a federal grand jury in the Middle District of Georgia returned an indictment charging six named defendants—Herbert Guest, James Spurgeon Lackey, Cecil William Myers, Denver Willis Phillips, Joseph Howard Sims, and George Hampton Turner—with a single criminal conspiracy under 18 U.S.C. § 241 that began on or about January 1, 1964 and continued until the date of the indictment.1
The indictment alleged that the defendants conspired to injure, oppress, threaten, and intimidate Negro citizens in the free exercise of several rights secured by the Constitution and laws of the United States, and it listed nine specific means by which the objects of the conspiracy were to be accomplished, including shooting, beating, and killing Negroes, damaging their property, pursuing them in automobiles while threatening them with guns, making threatening telephone calls and in-person threats, going in disguise on the highway, causing their arrest by means of false reports that they had committed criminal acts, and burning crosses at night in public view.2
The indictment set forth five numbered paragraphs describing the rights the defendants allegedly conspired to deny.3 The first paragraph tracked language from the Civil Rights Act of 1964 and concerned the right to full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations of motion picture theaters, restaurants, and other places of public accommodation.4 The second paragraph asserted the right to equal utilization, without racial discrimination, of public facilities in the vicinity of Athens, Georgia, owned, operated, or managed by or on behalf of the State of Georgia or any subdivision thereof.5 The third paragraph addressed the full and equal use on the same terms as white citizens of the public streets and highways in the vicinity of Athens.6 The fourth paragraph charged interference with the right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State.7 The fifth paragraph added other rights exercised and enjoyed by white citizens.8
The defendants moved to dismiss the indictment on the ground that it failed to charge an offense under federal law. The District Court sustained the motion and dismissed the indictment in its entirety as to all defendants and all numbered paragraphs.9 Two of the defendants, Sims and Myers, had already been prosecuted in the Superior Court of Madison County, Georgia, for the murder of Lemuel A. Penn and had been acquitted by a jury.10
The United States appealed directly to the Supreme Court under the Criminal Appeals Act, 18 U.S.C. § 3731. The Court postponed decision of the question of its jurisdiction to the hearing on the merits, which was held on November 9, 1965.11
Whether 18 U.S.C. § 241 reaches conspiracies to interfere with the right to travel freely to and from the State?12
Section 241 reaches conspiracies to interfere with rights secured by the Constitution, and the right to travel from one State to another is a right secured by the Constitution that is protected against private interference.13
Yes. The indictment charged the six defendants with conspiring to interfere with the right to travel freely to and from the State of Georgia by means including shooting, beating, and threatening Negroes.14 The right to travel occupies a position fundamental to the concept of the Federal Union and has been repeatedly recognized by the Court.15 The allegation of specific intent to impede the exercise of that right brings the conspiracy within the sanction of § 241.16
The District Court erred in dismissing the portion of the indictment relating to the right to travel.17
Related opinions on this issue
Justice Harlan concurs in the reversal of the District Court's dismissal of the portion of the indictment relating to the right to travel.18 He agrees that the right is secured by the Constitution.19 He agrees that § 241 reaches conspiracies to interfere with that right when state interference is alleged.20
Harlan would sustain this aspect of the indictment only on the premise that it sufficiently alleges state interference with interstate travel.21 He dissents from any broader holding that § 241 reaches purely private conspiracies obstructing the right to travel.22 No such private right has been acknowledged in prior precedent.23
The statute should not be read to create one without clear constitutional grounding.24
Whether 18 U.S.C. § 241 reaches conspiracies to interfere with the right to equal utilization of state-owned public facilities?25
Section 241 reaches conspiracies to interfere with rights secured by the Fourteenth Amendment, including the right to equal utilization of state-owned public facilities, when the indictment alleges sufficient state involvement.26
Yes. The second numbered paragraph of the indictment alleged a conspiracy to interfere with the right to equal utilization without racial discrimination of public facilities owned by the State of Georgia. The indictment contained an express allegation of state involvement by means of causing the arrest of Negroes by false reports.27 This allegation is sufficient to require denial of the motion to dismiss because it may cover active connivance by state agents.28
The District Court erred in dismissing the portion of the indictment relating to the right to equal utilization of public facilities.29
Related opinions on this issue
Joined by Justice Black And Justice Fortas
Justice Clark joins the opinion of the Court in full.30 He agrees that the indictment is sufficient because the allegation of causing arrests by means of false reports might cover active connivance by agents of the State in carrying out official discrimination.31 Clark emphasizes that the Court's construction of the indictment avoids any necessity to determine the precise threshold of state action required under the Equal Protection Clause.32
He further states that there can be no doubt that the specific language of § 5 of the Fourteenth Amendment empowers Congress to enact laws punishing all conspiracies, with or without state action, that interfere with Fourteenth Amendment rights such as the right to utilize public facilities.33
Justice Harlan dissents from the holding that § 241 reaches conspiracies to interfere with the right to equal use of public facilities.34 In his view that right is not secured against private interference by the Constitution in the manner required by § 241.35 The Fourteenth Amendment protects against state action, not private action, as established in the Civil Rights Cases.36
While Congress has power under § 5 to reach private interference, Harlan does not believe that § 241 was intended to do so.37 He would therefore affirm the District Court's dismissal of the portion of the indictment relating to the use of public facilities.38
Joined by The Chief Justice And Justice Douglas
Justice Brennan agrees with the result reversing dismissal of the second numbered paragraph but reaches it on different grounds.39 He concludes that § 241, as an exercise of congressional power under § 5 of the Fourteenth Amendment, prohibits all conspiracies to interfere with the exercise of a right secured by the Constitution, including the right to equal utilization of state facilities, without regard to whether state officers participated in the conspiracy.40 Brennan reasons that a right is secured by the Constitution if it finds its source in the Constitution, and § 241 implements that protection even against purely private interference.41
He would hold that proof of the conspiracy charged will establish a violation without requiring proof of active state officer participation.42
Whether the District Court's dismissal of the first paragraph of the indictment was reviewable on direct appeal under the Criminal Appeals Act?43
Under the Criminal Appeals Act, 18 U.S.C. § 3731, an appeal does not lie from a judgment dismissing an indictment that rests on the mere deficiencies of the indictment as a pleading as distinguished from a construction of the statute.44
No. The District Court held that the first paragraph failed to state an offense because it omitted the allegation of racial discrimination and alternatively because the remedies in the Civil Rights Act of 1964 are exclusive.45 Since the judgment rested at least alternatively on a defect in pleading, settled principles preclude review on direct appeal.46
The Court lacks jurisdiction to review the District Court's judgment on the first paragraph of the indictment.47