(dissenting).
This case emphasizes the wisdom of the rule that an appellate court should exercise careful and cautious restraint before substituting its judgment for that of a resident trial judge when the judgment under review relates more to the facts proven and the demeanor of the litigants and witnesses, rather than to abstract principles of law. Before stating my reasons for this dissent, I wish to make a general observation by way of preface or preamble.
Nothing said herein is intended to lend comfort or encouragement to those who advocate the use of, or who' use brass knuckles and other forms of violence; or to those who undertake deliberately to provoke others to breach the peace or create violence. Troublemakers do not solve problems. They thrive on trouble and its consequent publicity, confusion, provocation, unrest, condemnation, taunting and jeering behavior. Periods of drastic change call for magnanimous, patient and restrained conduct on the part of all elements of society, especially those who claim to be leaders. It is time for people to realize that a court is not a sovereign alchemist that can transmute violence, hate, distrust, fear, evil intent and prejudice into a rule of right conduct. People must do that themselves with encouragement and aid from the Judiciary.
The number of cases which come before the courts for review are but a handful compared with the numerous contacts and relationships which must take place from day to day amongst people with differing views and conflicting concepts. Minds that are motivated by hatred and evil motives become the repositories of wrongs and the generators of ill-mannered and shameful conduct resulting in obloquy, spoliation and hideous sufferings. There has never been a better time than now for people of different origins, backgrounds and beliefs to look for and emphasize the good qualities in others; and if they refuse to do so, the poisonous infection which will result inevitably is likely to endure for generations. The human mind that is seized and saturated with hatred rarely ever wishes to part with it.
In reversing the lower court, it seems to me that the majority has failed to give proper consideration to two fundamental principles of law which are controlling and recognized by all appellate courts. These principles are:
1. Broad discretion is lodged in trial courts in the matter of issuing temporary restraining orders and preliminary injunctions. The majority has denied any discretion to the District Court and has erroneously, in my judgment, concluded that there was an abuse of discretion. It is a well established principle of law that the trial court who is present where the trouble arises, who sees and hears the witnesses, and who can sense “the feel” of the situation is far better qualified to decide such questions than an appellate court upon review of a cold record. Howard Hay Foundation v. Safety Harbor Sanatorium, 5 Cir., 1944, 145, F.2d 661; Burton v. Matanuska, 9 Cir., 1957, 244 F.2d 647; Jimenez v. Barber, 9 Cir., 1958, 252 F.2d 550; Joseph Bancroft and Sons Co. v. Shelley Knitting Mills, Inc., 3 Cir., 1959, 268 F.2d 569.
2. Findings of fact by the trial court are presumed to be correct and will not be set aside unless clearly erroneous. Without indulging any presumption whatever in favor of the trial court, the majority has substituted its judgment of the witnesses and the facts for the judgment of the trial court. United States v. E. I. Du Pont De Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264, 1273 (1955); Peurifoy v. Commissioner, 358 U.S. 59, 79 S.Ct. 104, 3 L.Ed.2d 30, 33 (1958); International Boxing Club v. U. S., 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed. 270, 279 (1959); Horton v. United States Steel Corp., 5 Cir., *1041961, 286 F.2d 710. In my view, the necessary findings by the trial court are amply supported by substantial evidence ; and the legal conclusions reached are well supported by the facts as found.1
There is only one appellant, a New York corporation, the Congress of Racial Equality (CORE), and the appellees are C. H. Douglas, Individually and as Mayor of the City of McComb, and Mr. and *105Mrs. Aubrey McGehee. There is no individual appellant — only a corporate one. Only the appellant CORE is mentioned in the injunctive order.2 No person but CORE gave notice of appeal. Designation of contents of the record on appeal was given only by CORE. Again, we emphasize that no individual appellant is involved. In spite of this fact, the majority grounds its opinion on the following reason:
“We find that the injunction below is an unconstitutional abridgement of the First Amendment rights, as protected by the Fourteenth Amendment, as a prior restraint on the freedom of speech.”
This is the first instance I have found where freedom of speech on the part of a corporate defendant is used as the basis for reversing a trial court in circumstances here present. As stated, the appellant CORE filed no pleadings seeking any relief on its own behalf or on behalf of any individual it claimed to represent; and it offered no evidence. There is no suggestion of a class action or the appearance of any litigant in a representative capacity. In Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1938), the court held:
“Natural persons, and they alone, are entitled to the privileges and immunities which § 1 of the Fourteenth Amendment secures for ‘citizens of the United States.’ Only the individual respondents may, therefore, maintain this suit.
******
“Since freedom of speech and freedom of assembly are rights secured to persons by the due process clause, all of the individual respondents are plainly authorized by § 1 of the Civil Rights Act of 1871 to maintain the present suit in equity to restrain infringement of their rights. As to the American Civil Liberties Union, which is a corporation, it cannot be said to be deprived of the civil rights of freedom of speech and of assembly, for the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons. Northwestern [Nat.] Life Ins. Co. v. Riggs, 203 U.S. 234, 255, [27 S.Ct. 126, 51 L.Ed. 168, 173, 7 Ann.Cas. 1104]; Western Turf Ass’n v. Greenberg, 204 U.S. 359, 363 [27 S.Ct. 384, 51 L.Ed. 520, 522].”
See also Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1-201, 81 S.Ct. 1359, 6 L.Ed.2d 625 (1961) ; Adams v. City of Park Ridge, 293 F.2d 585 (7 Cir., *1061961); International Ladies G.W.U. v. Seamprufe, D.C., 121 F.Supp. 165 (1954); The Constitution of the U. S., Corwin Ed. 1953, p. 809. The majority relies heavily on N.A.A.C.P. v. Ala., 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), but that case has no bearing on the issues here involved. There N.A.A.C.P. sought to protect its membership lists and affirmatively asserted such right. The court held that the Association could, protect the right of anonymity of its members. The lists were in possession of the Association, and i-t alone could protect the privacy of them. As held by Hague and other cases, the right of free speech can not be asserted by an artificial person. The majority further asserts:
“The posture of this case in particular is even more favorable to the defendants than was the Edwards case to the defendants therein, in that an injunction is involved here which prohibits the exercise of constitutionally guaranteed rights.”
The majority has overlooked the fact that the injunctive order relates only to one corporate defendant.
I am also at a loss to understand how the majority can make the following assertion;
“CORE and other organizations, organized for the purpose of peacefully demonstrating and speaking against unconstitutional state and local laws enforcing segregation, would then find themselves virtually inarticulate. These fundamental rights to speak, assemble, seek redress of grievances and demonstrate peacefully in pursuance thereto cannot be abridged merely because a riot might be threatened to be staged or that the police officers are afraid that breaches of the peace will occur if these rights are exercised.”
As pointed out in Note 1 CORE filed no responsible pleadings whatever except motions to dismiss; and it offered no evidence. The quoted assertion of the majority is the assertion of a fact unknown to the record. There is absolutely nothing in the record to show the purpose for which CORE was organized, and regardless of that fact, the record does not show that CORE conducted itself on the occasion here involved for the purpose of “ * * * peacefully demonstrating and speaking * * * ” against certain laws and practices. On the record before us the majority can not, with logic, proclaim the purposes of the corporate defendant and pass upon its conduct on the occasions in question when there is no evidence to support such conclusions of fact. In its erroneous view of the facts, the majority states, “The only incidence of malevolent behavior came from the white crowd milling around the terminal.” Throughout the opinion, the majority varnishes the conduct of the Negroes with benevolent descriptive terms, while at the same time characterizes the conduct of the white crowd as malevolent. Such conclusions and characterizations have no foundation whatever in the record. Indeed, the majority opinion gives one the impression that nothing happened and that all was “sweetness and light” in McComb, Mississippi. Such a conclusion is contrary to the assertion of the appellant CORE in its own brief.3 The use of such descriptive terms as “All hell broke out”, the arrest of 4 residents of McComb for “disturbing the peace”, the receipt of a telegram from the Justice Department *107requesting police protection, publicized movements with the presence of photographers, T. V. cameramen, and news reporters from distant cities, the presence of fists and brass knuckles, the attempt to bréale the window of a ear, beating upon the counter and using provocative language, and other similar incidents, defy the description contained in the majority opinion.
As a matter of fact, not only were the police officers and the officials of the City of McComb alerted and disturbed, the record clearly shows that they were ini formed of the impending actions by agents of the F.B.I.4 The local officers were also confronted with a restraining order issued on November 27, 1961, by a three judge court which resulted in some reluctance on the part of such officers to exercise any authority whatever. This feeling of restraint necessitated a call from these officials to the Justice Department in order to obtain advice and per*108fiaps permission, as to what local police officers would be permitted to do. Indeed, the situation was discussed by the local officers and Honorable Burke Marshall, Assistant Attorney General, Chief of the Civil Rights Section of the Department of Justice. The following telegram was in evidence:
“In confirmation of our telephone conversation this morning you may be assured that the court order of November 27 does not in any way prohibit police action to protect persons using the bus terminals affected by the order. In our opinion the police of McComb are not only free but have a duty to take whatever steps are necessary, including the patrolling of the premises and the dispersal of crowds. The order and the Federal law contemplate that the police will provide the same protection to persons using the facilities of the bus terminals as is given to other citizens in the city. They may do so by any preventive or other means which do not have the purpose or effect of coercing racial segregation or interfering with the exercise of the rights protected by the order. You may be assured of our desire to cooperate and to be of assistance to the city in any way that we can in order to protect the safety of interstate travelers and to permit peaceful compliance with the order of the court and the law.
“Burke Marshall Asst Atty Gen Civil Rights Die.”
The majority has held that notwithstanding the testimony about hell breaking loose; fisticuffs and boisterous conduct; the presence of the F.B.I. who alerted local police officers of coming events; a telephone conversation between local police officers and the Justice Department, and a telegram from the Justice Department, there was yet no evidence to support a reasonable inference that violence and public disturbance provoking a breach of the peace were involved. This conclusion is reached by the majority in the face of the fact that two experienced U. S. District Judges 5 had acted, one granting a temporary restraining order and the other a preliminary injunction.
If the situation had gotten out of hand; if the local police officers had refused to act; if the resident U. S. District Judges had refused to grant relief, the evidence indicates that people would have been injured and property would have been destroyed; 6 in which event there would *109have been a hue and cry, no doubt, that local officers did not believe in “law and order”, and wilfully refused to perform their duty.
The majority places great emphasis on the case of Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed. 2d 697, but the opinion has misconstrued that decision. In the Edwards case the court was careful to point out:
“There was no evidence to suggest that these onlookers were anything but curious, and no evidence at all of any threatening remarks, hostile gestures, or offensive language on the part of any member of the crowd.”
In the instant case, both groups, Negro and White, were more than curious; there were threatening remarks, hostile gestures and offensive language. If not, why the concern of the F.B.I. and the Chief of the Civil Rights Section of the Justice Department in Washington, D. C.?7
Finally, the only order before us for review is one enjoining a corporate defendant “ * * * from sponsoring, encouraging or financing persons to utilize the terminal facilities * * * for the purpose of fomenting violence or provoking breaches of the peace in or near said terminal facilities; or for such purpose after having publicized their purposes and intentions to so utilize or misuse such facilities; or for the purpose of creating or securing unto themselves notoriety and publicity, as the sponsoring organization of such fomentation and provocation; or for the purpose of testing the tempers and reactions of the local citizens of said City in the absence of local police protection.”8 Expressly excluded from the operation of the injunction is “ * * * any impingement upon the normal, usual or ordinary travel of any person in interstate or intrastate commerce to, through or from the City of McComb, Mississippi.” 9 (Emphasis supplied.)
Only unlawful conduct is enjoined— normal conduct is guaranteed by the order.
I would affirm.
. A few typical examples of errors of fact contained in the majority opinion follow:
1. THE OPINION:
“The evidence relative to the conduct of the CORE members was almost entirely favorable. They behaved in an ‘appropriate manner,’ never ‘antagonistic,’ never ‘boisterous,’ and in ‘a reasonably quiet manner’ according to the testimony of three of the plaintiff’s witnesses.”
THE RECORD:
The only time the word “antagonistic” is used relates to a time subsequent to the issuance of the temporary restraining order.
“Q. Now, has the situation in your opinion in McComb changed at all from what it was last week?
“A. Yes, sir.
“Q. In what way has it changed? What have you observed about the city this week?
“A. Following the issuance of the temporary restraining order signed by Judge Mize, and when the public became aware of it, the situation cleared up tremendously.
“Q. Did members of the colored race ride a bus into McComb yesterday?
“A. Yesterday? I will have to look. Yes, sir. Yes, of course.
“Q. That would be Wednesday, this past Wednesday, the 6th of December?
“A. Yes, sir.
“Q. Were there any incidents or disturbances?
“A. No.
“Q. Were there any unusual or large crowds gathered at the bus station when the bus arrived bearing these people?
“A. There might have been up to six or eight more people than would be considered normal down there at the time.
“Q. Were they in your opinion antagonistic, or did you observe — let’s put it this way, did you observe these people that were there, these six or eight that you say would not normally be there? Did they exhibit any antagonistic motions or did they exhibit any antagonism in their voices or manner that you could observe?
“A. No, sir.”
2. THE OPINION:
“In fact, with the exception of the one incident of demanding service by beating on the counter, the testimony disclosed that the Negroes acted in no way hostile, violent or provoking. At all times they behaved in an orderly fashion.”
THE RECORD:
“Mr. McGohee said that he was inside the bus station and they approached and started to the counter, to the lunch counter, and he told them, ‘That is a private business not operated by the Greyhound Company and you can not use this side of it’. His words were, ‘They walked thi-ough me and sat down’. He said, ‘I followed them and went on the other side of the counter and told them, ‘I can not serve you here. This is a private business and I can not serve you. If you will go through that door to the other side we will serve you.’ He said at about that time he had to go to the south a few feet to sell a ticket and that — if you will pardon the words, the words he told me— ‘all hell broke loose’.”
3. THE OPINION:
“It was clear that the rides were publicized, but there is little evidence to indicate how the press got hold of the planned trips. One of the local CORE officials said that he knew of no planned publicity.”
THE RECORD:
“Q. Mr. Mayor, in the conversation that you had with Mr. Burke Marshall in the U. S. Attorney’s Office did he tell you what connection CORE, or the Congress of Racial Equality, had with these people that were coming to McComb?
“A. Not in this particular conversation that we are referring to now.
“Q. In any subsequent conversation that you had with Mr. Buz'ke Marshall?
“A. Yes, sir.
“Q. What did he describe to you to be CORE’S part in these activities?
“A. He told me, or his office told me, I don’t know whether it was he or Mr. - what is the attorney with him?
“Q. Heilboz-d.
“A. Heilbord — if I had any suggestion to make to them, feel free to do so. And I said to him, I asked him if I could make a suggestion — now, this is Mr. Marshall —and he said yes. I said, ‘If we can have these publicized movements discouraged and discontinued it will be a lot of help to us in maintaining and keeping peace and order’. And reference was made to CORE’S movements, anziounced movements, and I said, ‘If Washington will use their influence or what influence *105they have to discourage that it 'will be helpful’. He said, ‘I’ll do that today and call you back,’ and he called me back and he said that he’d had a telephone conversation with CORE’S headquarters and they had promised to discontinue these publicized movements. Now, that’s what he said to me in a subsequent telephone conversation. * * * ” (Emphasis supplied.)
“Q. Tell us what the stories that were carried over the regular news media in McComb stated on Thursday with regard to the intentions, if any, of persons who had been in McComb on Wednesday to return to McComb, or particularly to the bus station or train station at McComb.
“A. The Associated Press wire service stated that the five Negroes after their return to New Orleans were engaged in meetings there, and several of them zoere qzioted in interviezos in which they said that they had no immediate plans at that moment but that they did plan to return.” (Emphasis supplied.)
4. THE OPINION:
“CORE and other organizations, organized for the pziz-pose of peacefully demonstrating and speaking against unconstitutional state and local laws enforcing segregation, would then find themselves virtually inarticulate.” (Emphasis supplied.)
THE RECORD:
The record is totally silent. Except for motions to dismiss, CORE filed nothing and proved nothing. On this point there are no allegations and no proof.
. There is the usual provision including “ ® ® * its officers, agents, servants, employees, attorneys and those persons acting in active concert or active participation with them who receive actual notice of this order, by personal service or otherwise.”
. The following is from the brief of CORE at page 3:
“Almost immediately thereafter, in Mc-Gelioo’s words, ‘All hell broke out’ (R. 115). The negroes were forcibly ejected from the terminal by members of the crowd (R. 85). On the following day, as a result of that incident, four residents of McComb were arrested for ‘disturbing the peace’ (R. 80, 101).
“On the same day, after receiving a telegram from the Justice Department (R. 218) requesting police protection at the terminal, the Selectmen of the city authorized the police to patrol the terminal on a regular basis (R. 103-4, 209).
“On Friday a field representative of CORE met the 1:30 bus from New Orleans (R. 175) and picked up a group of five Negro passengers (R. 178) without *107incident (R. 178-9). The negroes returned to New Orleans on the 8 :30 bus (R. 185).
“On Saturday, December 2d, the field representative of CORE met negro passengers, all natives of McComb (R. 182) who had arrived from Jackson, Mississippi. The negroes left the bus and used the terminal without incident (R. 187) but as they entered the auto of the CORE representative a crowd that had gathered beat the auto with fists and brass knuckles, kicked the sides and attempted to break the window of the car (R. 188). A police officer intervened and the beating stopped (R. 188).”
. The following is from the record, pp. 204-205 and 206-208:
“Q. On Tuesday evening, November 28, 1961 did you receive a telephone call from any member of the Federal Bureau of Investigation?
“A. I did.
“Q. Who was that man who called you?
“A. Jack Quigley.
“Q. Speak up a little.
“A. Mr. Jack Quigley.
“Q. And what did he tell you on that occasion?
“A. He informed me that CORE was planning another ride for the next day to McComb.
“Q. Now, you say another ride. This would have actually been the first one?
“A. The first ride to McComb.
“Q. This would have been for the next day, which would have been a Wednesday, is that right, sir?
“A. Correct.
“Q. Now, on Wednesday did a group of people come into the McComb — a group of colored people come into the McComb bus terminal from New Orleans?
“A. They did.
“Q. Was this in accordance with your information from Mr. Quigley?
“A. Yes, sir.
* * # * •
“Q. Was Mr. Quigley at that time in McComb, Mississippi?
“A. Yes, sir, he had arrived in McComb.
“Q. At any time during the day of Wednesday, the 29th of November, 1961, did Mr. Quigley contact you with any message as to the intent or intentions of this group of persons?
“A. Yes, sir, he did.
“BY MR. RACHLIN: I wish to clarify the question.
“BY THE COURT: Let me get that question again.
(The reporter read the last question and the last answer)
“BY MR. CLARK:: If Your Honor please, I am again emphasizing to you that it is not my purpose by this question to prove what these intentions were, but simply to prove the fact that this police officer received a communication on that day from another police officer and what that communication was.
“BY THE COURT: I overrule the objection.
“BY MR. CLARK (Continuing) :
“Q. Did he contact you and tell you what these persons planned to do?
“A. He did.
“Q. What did he tell you that they planned to do?
“A. He told me that he had been in contact with these people that came in on the bus and their intentions were to go to the bus station at 3:20 or 3 :25 and’ catch the 3:30 bus out of McComb.
“Q. All right, sir. Now, while Mr. Quigley was there in your office, or in the City Hall where your office is located, do you know whether any of these persons did come to the bus station?
“A. I did not know at that time.
“Q. What was the first indication that you had that they were at the bus station, those five colored persons that had come in that morning?
“A. Mr. Quigley came back to my office, he called me out in the hall and told *108me that there had been a fight at the bus station, that I had better get down there and see about it.
“Q. All right, sir, now, what time was it that Mr. Quigley told you that?
“A. Shortly after three o’clock.
“Q. And then did you go and investigate the fight?
“A. I did.
“Q. What did that investigation disclose to you as to whether or not these five persons had come back about thirty minutes before they told you they were coming?
“A. When I arrived on the scene all the persons involved—
“Q. When you were told that they were coming.
“A. —they had gone, and I immediately tried to find them. I looked all afternoon and it was six o’clock that afternoon before I did find them.
“Q. Did you find those persons to be the same five colored people that rode in from New Orleans?
“A. They were, yes, sir.
“Q. So it was your information that morning from the Federal Bureau of Investigation that they would not be at the bus station until 3 :25 ?
“A. That’s correct.
“Q. But apparently they did not go there at that time?
“A. They apparently jumped the gun. That’s what they did.”
. Judge Mize issued a temporary restraining order on the 2nd day of December 1961; and Judge Cox issued a preliminary injunction on the 22nd day of December 1961.
. As shown by the testimony of witness Gordon:
“Q. If this temporary restraining order is removed do you think that burden— do you believe as the police commissioner that that burden will return to the police force?
“A. If the temporary restraining order is removed and these people come back *109in to visit that bus station chaos will result. (emphasis supplied)
“Q. Do you believe that it will place a burden on your police force in McComb?
“A. An intolerable burden.”
. The record is replete with incidents of violence and potentially explosive situations among which are the following:
In response to a question concerning the investigation made of a disturbance on Wednesday, the first day that the CORE members came in, the police commissioner of McComb testified:
“They disclosed that a photographer had been taking pictures in the vicinity of the bus station all day and that about 2:00 o’clock p. m. he was in the vicinity of the bus station, he was questioned and a fight developed between him and one or more persons also there.”
Police Chief George Guy testified to 5 Negroes being beaten and ejected from the bus terminal on Wednesday at a time when the police department was investigating the photographer fracas above mentioned.
Witness McGehee testified that one of the 5 negroes who were ejected beat upon the counter of the bus terminal restaurant with a knife and in a loud provocative voice demanded: “Why in the hell can’t we get service in here?”
The police chief testified that four men were arrested and charged with assault and battery on Thursday in connection with the fight in the bus station on Wednesday.
On Friday, a photographer was seen being chased through town:
“ * * * I did observe a man running pell mell northward carrying a camera in his hand with a crowd of people chasing him on both sides of the street. I did also observe various, many repeated assemblies in small groups of people during the day.”
. Although the majority considers it of no importance, it is a fact that the F.B.I. informed the Chief of Police of the City of McComb that these Negroes would return at 3:20, but actually they came 30 minutes early, and arrived before the police.
. There is evidence in the record that the facilities formerly used by white persons had been used by negroes for months without incident until the occurence of the events under review:
“Q. Over what period of time have you noticed colored persons entering into the *110west side or what was formerly designated as the white roaiting room in the terminal therel How long had this been going on? (emphasis supplied)
“A. Mr. Clark, I don’t believe I can answer your question. It has been quite a while.
“Q. Could you give me some general estimate as to whether it has been in the term of months or yeea'S?
“A. I had rather say months, but I can’t be sure about that. I had rather say months.
“Q. Have you ever seen violence as a result of colored people coming into that terminal?
“A. No, none.
“Q. Has there been any publicity about these former visitors in this white side of the waiting room, or what used to be the white side of the waiting room?
“A. No, sir.
“Q. So that prior to this time there have been colored people in there without incident?
“A. Yes, sir. I’m thinking, or my judgment is that we were notified that those people were coming there as agitators. This was what I have learned later, that they notified the people that they were coming there as agitators and to create a disturbance, which I think they have done. They did it up brown.”