Petition for Writ of Certiorari — Walker v. City of Birmingham

Supreme Court brief1967

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"s< COURT.

| Supreme Court of the AyiteD Btatesivis, cuca |

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paeae :

Wyarr Tre Watxer, Martin Luruze Kine, Jr, Ratea

Asernatuy, A. D, Kino, J. W. Haves, T. L. FsHEr,

F. L. SHUTTLESWORTH and ‘J. T.: Porter, ~ |

Petitioners,

; ilies

~ Crry or Bremincuam, a Municipal Corporation

: of the State of Alabama,

- PETITION FOR WRIT OF CERTIORARI TO THE Bs:

. SUPREME COURT OF ALABAMA |

er ee ee Jack GREEnsenc i

_ , James,M. Naser, IT a

~~" Nosaw C. Amaze

* - -. Leroy D. Cuanxk :

‘ : 10 Columbus Circle

New York, New York 10019

Antoun D..SHorrs «

1527 Fifth Avenue North ©

: Birmingham, Alabama .- - .

ORZELL Bristastay, JE

eS 1630 Fourth Avenue North

Birmingham, Alabama

: Attorneys for Petitioners. Te

Harry H. Wacurtsi ~

| Bensamay Sprecen

575 Madison Avenue

New Yofk, New York

Of Counsel.

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INDEX

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| : PAGE

Citations to ‘Opinions Below - ‘1

Suchet 8

Questions Presented ............ . -. 2

; Statement - Steaks | :

A. General Background

“B. Events Leading to the. City of Birmingham's ,

Prayer for Injunction <2pdocenens eee - ‘fi

©. The Injunction SNe MES

D: Continuation of ‘Peaceful Protests ‘Against

Segregation - - 12

E. Contempt: J udgment: How the Federal Ques- .

tions Were Raised and Decided Below ......... - 14

Dnseens FOR eatin THE Warr:

I. Petitioners’ rights under the due process and

equal protection clauses of the Fourteenth ~

Amendment were infringed by their conviction—

' for contempt where the injunction they -are

_ charged with disobeying is in violation of their

First and Fourteenth Amendment _

‘A. The ex parte injunction be April 10, 1963,

and Section 1159 of-the Birmjngham City

Code violate petitioners’ First and on,

Amendment rights : 21

1. Vagueness of the Injunction’s Terms ........ 21

~2. The Unconstitutionality of §1159 on - Its

Fave and as — 25

Sx | PAGE

- 3. Improper’ Exclusion of Evidenée on the

Unconstitutional Application ‘of $1159 .... 29

B. The conviction denied due process because

there was no eVidence petitioners participated

‘ in a forbidden “unlawful” —— or demon-

stration .......: . 30

_ © <I. Assuming arguendo that petitioners did disobey

. the injunction, Alabama may not validly punish

them. because the ex parte injunction was void

_as an unconstitutional infringement of their —

rights to’ free speech and ensemally. 2 —«32

Ill. Petitioners King, Abernathy, Walker and Shut-

tlesworth may not be punished for their Con-

stitutionally Protected statements to the’ press.

- criticizing the injunction and Alabama officials .... 38

_ IV. The conviction of petitioners J. W. Hayes ‘and

T. L. Fisher denied them due process because

there was no evidence that they had notice of or

knowledge of the terms of the injunction _ poomenennnne 42.

_ Cowrcuusion ; :' . : 45

' Aprrnpix— ;

Circuit Court Opinion Dated Apri 26, ee la

Opinion of Supreme Gourt of Alabama Dated

December 9, 1965 . / 8a

Judgment of Supreme Court of Alabama -Dated

December 9, 1965 .... 30a

_ Denial of Rehearing Dated January 20, 1966 ....... 32a

PAGE

* Some Ordinances of City of - Whaheint Ala- |

. bama, Requiring Segregation by Race ........... ae 83a

| Statutes, of State of Alabama Conferring Con-

: ' | tempt Powers on Courts Rinnydhenannnt 34g

| : TaBLe or AUTHORITIES |

-. Cases:

| halted ©: Kentucky, —- U:S. —— (May 16, 1966),

_ 34 USL. Week 4398 | 24

.- . . | Baggett v. Bullitt, 377 U.S. 360 24

, Bantam Books, Inc. v. Sullivan, 372 U.S. 58 ........... 24, 35

Barr v. City. of Columbia, 378 U.S. 146 ... 30.

Barrows v. Jackson, 346 U.S. 249 mae 35

Bridges v. California, 314 U.S. 252 40,41

Cantwell v. Connecticut, 310 U.S. 296 “34

Carter v. Texas, 477 U.S. 442 30

Coleman v. Alabama, 377 U.S. 129 -: 30

Congress of Racial Equality v. Douglas, 318 F.2d 95

(Sth Cir. 1963) «33

Cooper v. Aaron, 358 U.S. 1 . 35

Cox v. Louisiana, 379 U.S. 536 ._............ 20, 22, 24,-26, 28, 29

“Cox v. New Hampshire, 312 U.S. 569 : . 26.

Craig v. Harney, 331 U.S. 367 aaa e

Cramp v. Board of Public Instruction, 368 U.S. w= 24

r 2 . Devie v. Wechsler, 263 U.S. 22 .&.. | | 37

’ Dombrowski -v. Pfister, 380 U.S. 479 2

——* Dallas, 377 U.S. 408 - Leseece a

|. .< Eéwards v. South Carolina, 372 U.S. 229, », 29, 24

m ties Ex parte Fisk, 113 U.S. 713 36 —

Ex parte Rowland, 104 U.S. 604 . 36

Ex parte Sawyer, 124 U.S. 200 36

‘ . a

‘ ¢

. ad >

ba ‘ ’ F . . a ° ; “g

— .

S ‘ °

. “ . aot > ¢ . ‘ E ry - 20 eS Pre nrneen wee eperarten

. e-. ° 4 :

_ Fields v. City of Fairfield, 375 U.S. 248 .......21, 30, 32, 33

. Fields v. South Carolina, 375 U.S. 44 . .a--22, 24

Freedman. v. _—" 380 U. 8. 51 a 26, 35

Garner v. teullede, 368 U.S. 157 Kole 23, 30

Garrison v. Louisiana, 379 U:S. 64 wesseqeeeeenes 40, 41

- George v. Clemmons, 373 U.S. 241 sano

» Gober v. Birmingham, 373 U.S. 374: | 6, 22.

Hague v. (.1.0., 307 U.S. 496 . 26

Hamilton v. Alabama, 376 US. 650. wp.......24, 35

Hamm v. Rock Hill, 379 U.S. 306 ....: ; | 37%

Henry v. Rock Hill, 376 U.S..776 seuseeeDDy 24

Holt-v. Virginia, 381 U.S. 131 40

Johnson v. Virginia, 373 U.S. 61 24, 35,37 ~

Kunz v. New York, 340 U.S. 290 eccccecnerncnnnnnnne 26

-Lanzetta v. New Jersey, 306 U.S. 451 > 42

Largent v. Texas, 318 U.S. 418 . ; 26

Lombard v. Louisiana, 373 U.S. 267 .... . 28

- Lovell v. Griffin, 303 U.S. 444 ....... he 26

NAACP v. Alabama, 357 U.S. 449 2. cccccecsnnnv 24, 88, 37

NAACP v. Alabama, 377 U.S. 288 3 37, 41

. NAACP vy. Button, 371 U.S. 415 ily w-oet..24, 35, 36

Near v. Minnesota, 283 U.S. 697 | 35°

New York ‘Times Co. v. Sullivan, 376 U.S. 254 ............ 4b

N iemotko v. Maryland, 340. U. S. 268 ; ane OS

Pennekamp v. Florida, 328 U. S. 331 venseuecee MO, 41

Primm v. City of ‘iientae 42 Ala. App. 657, 177 -

* So.dd 326 (1964) . 7 on oT

PAGE

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aw heme angyi Moss ame oP

low worthy,

ance EEO ee

> ree . PAGE

Re Green, 369 U.S. 689 S.ucs....c-esse: i &

Re Oliver, 333 U.S. 257 sows D4, 36, 37

Re Sawyer, 360°U.S. 622 . | éene:..38, 40

- Saia v. New York, 334-U.S. 558 | 26

Schneider v. State, 308 U.S..M7 ) 26 |

‘Shelley v. Kraemer, 334.U.S. 1 ; ‘esereeeeedy 3D

Shuttlesworth v. Birmingham,. 382 U.S. 87 .............. 26,30 -

Shuttlesworth v. City of Birmingham, —— Ala. App.

/— +, 180° So. 2d 114 (1965). ........ ...20, 27, 31, 41

. Shuttlesworth and Billups v. Alabama, 373 U.S..262 a 22>

Smith v. California, 361 U.S. 147 24

Staub v. Baxley, 355 U.S. 318 .... ) 26, 27

Stevens v. Marks, 383 U.S. 234 aoe FY

Stromberg v. California, 283 U.S. 359 ... : 24, 38

Taylor v. Louisiana, 370 U.S. 154 sian ae

Terminiello v. Chicago, 337 U.S, 1 ..... —

Thomas v. Collins, 323 U.S. 516 .....4.............. ..24, 35, 36, 38

Thompson v. Louisville, 362 U.S. 199. ........ 21, 30, 32, 42, 44

Thornhill v. Alabama, 310 U.S. 88 24

United Gas, Coke and Chemical Workers v. Wisconsin -

Empléyment Relations Bd., 340 U.S. 383 .....2........ 36

United States v. Chambers, 291 U.S. 217 ............. 37

United States v. Shipp, 203 U.S. 563 34

United States v. State of. Alabama, 252 F. Supp. 95 —

(M.D. -Ala. 1966) .... 6

_ United States v. United: Mine Workers, 330 U.S. 258

20, 32, 33, 34, 35, 36

Williams v. North Carolina, 317 U.S. 287 - 38

Wood y. Georgia, 370 U.S. 375 inane 40,41 .

Worden v. Searls, 121 U.S. 14 ! | 34°

Wright v. Georgia, 373 U. S. 284. : «37

Yick Wo v. Hopkins, 118 U.S. 356 camer

N | PAGE

Statutes: ¥

Alabama Code (Reeompiled 1 1958), Title’ 13, §§4,5,9 0. 4

Building Code of City. of Birmingham (1944), $2002.1 .. 4, 6

_ General Code of City of Birmingham (1944), §369 ....4, 6, 17

- General Code of City of Birmingham (1944), $597 ........ 4,6

General Code of City of Birmingham (1944), §1159 ...... 3, 8,

| ; Ge. 19, 20, 21, 25, 27,

a ee or aa |

28 U'S.C. §1257(3) . eveecnen | 2 x 2

——

Other Authorities:

Congress and the Nation 1945-1964:- A Review of Gov- °

ernment and Politics in the Postwar Years ‘ “ongres-

sional Quarterly Service, 1965) a 56

_ Note, Amsterdam, The Void-for-Vagueness Doctrine

im the Supreme Court, 109 U. Pa. L. Rev.-67 (1960) .. ©

1963 Report of the United States Commission on- Civil

_ Rights (Government Printing Office, 1963) 5,67

United States House of Representatives, Committee on ~

the Judiciary, 88th Congress, 1st Session, Hearings ©

on Civil — Part ay wae 7

ty Iw THE ;

Supreme Court of the United States

. Ocrosge Term, 1965 i

‘ DE tinintens 7 | y

L . oe 7 * ‘a

Wvarr Tes Waker, Mantis Lurner Kine, Je, ‘Batra -

. . Aveanaruy, A. D, Kiyo, J. W. Haves, T. L. Fisuee, .

* F. L. Surrizswortn and J. T. Ports,

| Petitioners,

| : —v— ;

Crry or BrmmincHam, a Municipal Corporation — .. A

of the State of Alabama. :

PETITION FOR WRIT OF CERTIORARI TO THE -

): SUPREME COURT OF ALABAMA 2

Petitioners pray “That a wri€of vertiorari —_" review

| the judgment ofthe Supreme Court of Alg¥ama ‘entered

_ in the above entitled cause December 9, 1965, infra, p. 30a,

a rehearing denied January 20, 1966, infra, p. 32a.

Citations to Opinions Below

‘The opinion of the Supreme Court of Alabama’is re-—

ported at —— Ala. =—, 181 So.2d° 493 (1965), and is .

printed in the Appendix hereto, infra,. pp. 8a-29a. The

opinion of the Circuit Court for the Tenth Judicial Cir- -

‘quit of Alabama (Jefferson County) is unreported, but is

printed im the Appendix hereto, infra, pp. 1a-7a. a x

° ‘p

Jutisdiction

The Staion of the Supreme Court of Alabama was

entered December 9, "1965, infra, p. 30a. Motion for re-

—

hearing was denied by the Supreme Court of Alabama ~~~

January 20, 1966, infra, p. 32a. Petitioriers’ time for filing

petition for writ of ceritorari was extended to and includ-

_ ing June 19, 1966 by” an order signed by me. J ustice Black

on Apgl 13, 1966. i.

~ The jurisdiction ofthis Court i is invoked under 28 U.S.C.

| §1257(3), petitioners having asserted below and asserting

. here deprivation of rights secured by the Constitution of

the United —_—

Questions Presented

OL Whether petitioner’ S sii for contempt for

alleged disobedience of an ex parte injunction restraining

certain protest demonstrations against racial segregation

violate the First Amendment and the Due Process and —

Equal Protection Clauses of the ec aie Amendment

on the ground that: :

A. The injunction was unconstitutional because, ;

1. The terms of the injunctive decree were imper-

missibly vague ; |

2. The injunction enforced an ordinance ssititiaas

parades without permits which is unconstitutional on

its face and as applied on due process: - en pro-

tection grounds;

3. The trial court improperly excluded evidence

bearing on the unconstitutional administration of the

parade ordinance; —

A OXEITG

P wong, : 2 :

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a Pa

ak é ‘ . re

. 'B.. There-was no evidence that petitioners violated

the terms of the injunction’s prohibition against bd

lawful” parades and demonstrations?

II. Whether the court below was correct in holding that

even if tlre ——— arrpaysempwgd restrained free

| ure to obey i} »

III. Whether saitibinineed M. i. King; Jr., Abernathy,

Walker and Shuttlesworth' were denied due process by

being punished in part because of constitutionally pro- .

tected statements to the press* criticizing the ez parte

| injunction and Alabama officials? 2

IV. Whether petitioners Hayes wal Fisher were denied

. , due process by conviction without any evidence that they

_ had notice of or knowledge of ‘the terms. of the injunction?

Constitutional and Statutory Provisions Involved

1. This case involves the First Amendment and Section

1 of the Fourteenth Amendment to the Constitution of the

United States.

2.' This case also involves the following ordinance of the

City of Birmingham, a municipal corporation of the State

of pat

’

General Code of City of Birmingham,

Alabama (1944), §1159 .

It shall be unlawful id organize or hold, or to assist

' in. organizing or holding, or to take part. or participate -

in, any parade or procession or other public demon-

stration on the streets or other public ways of the

ety, unless a permit therefor has been secured from.

({€ sommission. . °

oe ; : ‘

To secure such permit, written application shall be

_. thade to the commission, setting forth the probable

pumber of persons, vehicles and animals which will be

. engaged in-such parade, procession or other public

demonstration, the purpose for which it is to be held:

or had, and. the’ streets or other public ways over, ,

along or in which it is desired to have or hold such .

parade, procession’ or other public demonstration. The

commission shall grant a written permit for such

parade, procession or other public demonstration, pre-

scribing the streets or other. public ways which may

be used therefor, unless in its judgment the public wel-

fare, | peace, safety, health, decency, good order, morals. -

-___or eOhvenience require that dt be refused. It shall be

unlawful to‘ use for-such_purposes any 0 ‘other streets .

or public ways than those set out in said permit. ~~"

_. The two preceding paragraphs) however, shall not

apply to funeral processions. (

3. ,The following Alabama statutes and Birmingham mv- .

nicipal ordinances involved are set out in the Appendix,

infra, PP. 33a to — oo, e .

_ _Code of Alabama (Recompiled 1958), Title 13, §$4, 5, 9;

Geheral Code of City of ile ee Alabama (1944),

§§369, 597 ; :

Building Code of et of Birmingham, Alabame (1944), |

§2002.1.

~ Statement

A. General Background | &

These cases involve judgments of contempt adjudicated

against petitioners by the Circuit Court of Birmingham,

° e.

seregit

ER tan.

Alabama, for woeiibia protest demonstrations against

. Tacial segregation on two occasions, contrary to an ex

parte injunction ordering them to refrain from “unlaw-

ful” parades, and for allegedly speaking in a contumacious

manner about the eourt which issued the injunction. The -

case involves, of course, certain discrete acts of petitioners.

But these acts have limited meaning unless seen in their

historical context. Petitioners, therefore, introduce this

Statement by reference to officially | oe facts which

put the issue in perspective. ~_

In early 1963, Birmingham Negroes appealed ‘ the

public conscience through peaceful protest demonstrations

in an effort to secure redress of their grievances, since .

_ other avenues were severely limited. Only 11.7% of.

Negroes of voting age. were registered to vote_in 1962

_ in Jefferson County (Birmingham), despite long-standing »

suits against voting discrimination -by the United States -

and private individuals.’ This situation was feflected in.

the fact that no Negroes were employed as city police

officers, tax: officials, government lawyers, court officials,

officials in the public health-or public works department

in the City of Birmingham, except in the performance

-of maintenance, janitorial or similar duties (R. 188). A

. “self-proclaimed white supremacist, Eugene (“Bull”) Con-

nor,” was Commissioner of Public Safety, the head of

the police department and. one of the three governing

commissioners of the City. -

11963 Repo?t of the United States Commission on Civil ~— (Gov-

ernment Printing Office, 1963), p. 32. ¢

3 Congress and the Nation 1945-1964: A Review of Gove and

” Politics in the Postwar Years one Quarterly Service, 1965),

p. 1604.

Segregation of the white and Negro races was enforced

by law in virtually every aspect of public life in Birming-.

ham.* Municipal ordinances provided for segregation in

restaurants, places of entertainment, and sanitation facili-:

ties. Gober v. Birmingham, 373 U.S..374 (1963), decided

following events involved in the instant case, held that.

enforcing the municipal segregation ordinances through

trespass convictions denied equal protection of the laws,

No Negroes attended schools with whites in Birmingham

or elsewhere in Alabama during the school year 1962-63.°

In June 1963, just after the Birmingham demonstrations,

at the University of Alabama (Tuscaloosa) Governor

George C. Wallace carried out his 1962 campaign pledge’.

“to stand in the schoolhouse door” to prevent integration

of Alabama’s schools, in the face of a federal court order.*

But despite the fact that an appeal to conscience through

. peaceful ions against legally enforced segregation was

{

3 Alabama had enacted ‘sweeping racial segregation. laws which were

applicable in Birmingham. In United States v. State of Alabama, 252

F. Supp. 95, 101 (M.D. Ala. 1966), Circuit Judge Rives pointed out .

in 1966 that “there are still forty-four sections of the Alabama Code

dedicated to the maintenance of segregation.” The opinion recounts

many aspects of the official policy of segregation and cites the statutes .

and cases.

‘ Birmingham municipal ordinances provided, among other things, that

places for the serving of food’ (§369 General Code), places for the

playing of certain games (§597 General Code), and toilet facilities

(§2002-1 Building Code) must be segregated (R. 110). These ordinances .

are printed in the Appendix hereto, infra, p. 33a.

5 1963 Report of the United States Commission on Civil Rights, supra, .-

p. 65. | ,

: an appropriate response to the situation, the United States

. Civil Rights Commission concluded in its 1963 Report that:

The official policy in... Birmingham, throughout |

the period covered by the Commission’s study, was

one of suppressing street demonstrations. While

’ police action in each arrest may not have been im-

proper, the .total pattern of official action, as in-

dicated by the public statements of city officials, was

to maintain segregation and to suppress protests.

The police followed that policy and they were usually

supported 7 local prosecutors and courts.’ 4

Referring to the Bicpbeaheni situation, President Ken-

nedy’i in June 1963 submitted a broad civil rights program

to the Congress which became the Civil Rights Act of 1964.

The President addressed the American people in a nation- .

wide television address and made “an appeal to conscience

—a_ request for their cooperation in meeting the growing

moral crisis in American race relations.” °

B. Events Leading to the City of Birmingham’s

Proyer for Injunction

Petitioners Wyatt Tee Walker, Martin _— King, Jr., -

Ralph Abernathy, A. D, King, J. W. Hayes, T. L. Fisher,

F. L. Shuttlesworth and J. T. Porter are members and

71963 Report of the United States Commission on Civil Rights, supra,

p. 112.

4 United States House of Rensenmntations, Committee on the Judiciary,

"88th Congress, lst Session, Hearings on Civil Rights, Part II, pp. 1446- -

1447. In his message to the Congress, the President said:

“The, venerable code of equity law commands ‘for every wrong,

a remedy.’ But in too many communities, in too many parts of

the country, wrongs are inflicted on Negro citizens for which no

effective remedy at law is clearly and readily available. State and.

local laws may even affirmatively seek to deny the rights to which’

~~ these citizens are fairly entitled—”

~ :_ Sere - —.

officers of the Alabama Christian Movement for Human

Rights and/or the Southern Christian Leadership Con-

_ ference, which seek to eliminate racial segregation through

constitutionally protected activities such as free speech and

picketing, through the courts, and other legal means (R.

260, 361, 385). An Alabama Department of Public Safety

investigator assigned to “racial” problems testified that

the organizations’ “teachings have been non-violent” (R.

276), and “the general theme is non-violence in every pro-

gram” (R. 277).

“Objecting to legally enforced racial einai in the

City of Birmingham described above, these organizations

\began. a program of peaceful protests in April 1963 which |

—

ee eee

were part of the series described above. Some protests

took the form of sit-ins ins the face of.the Birmingham

ordinance requiring segregation in eating establishments.’

Other protests took different form. Officers of the -or-

ganizations, aware that city officials might View some of

these protests as “parades” requiring city permits,”° or

several occasions ‘attempted to secure — Mrs. Lola

Fan: hast & Stk eenidis Wiedibes| Dies dies exh One

selves at the lunch counter in Lane’s Drug Store, a business establish-

ment open to the general public; the waitress asked if she could help

them and each ordered a cup of coffee. ‘Shortly thereafter the manager

appeared with a city police officer who arrested them for “trespass after

warning” (R. 113-114). A similar incident occurred the same day, when

four Negro citizens of Birmingham sought service at the Tutwiler Hotel

Coffee Shop (R. 115-116).

On April 9, several Negro citizens entered the Bohemian Bakery, a

business éstablishment open’ to the general public, obtained food in the

cafeteria line and seated themselves. Shortly thereafter the store

appeared with some city policemen. One officer said, “What should we

charge them with?”; another answered, “Trespass”; and another said,

“Give them disorderly conduct, tod.” Each member of the group was

ordered to rise and was searched ; they were arrested and taken to city

jail (R. 116-117).

1° See text of §1159, General Code of. City of pom, ‘supra, Pp-

—

. 5°

Hendricks, a member of the Alabama Christian Movement

’ for Human Rights, authorized by its president, Rev. Shut-

tlesworth, on April 3, 1963, went to the Police Department

and asked to see the person in charge of issuing permits,

~ and was directed to Police Commissioner Eugene (“Bull”)

Connor’s office in City Hall. When Commissioner Congor

received her, she said, “We came up to apply or see about

getting. a permit for picketing, parading, demonstrating,”

and asked if he could issue the permit, or refer her. to

other persons’ who would issue it. Commissioner Connor

replied, “No you will not get a permit: in Birmingham,

Alabama to picket. I will picket you over to the city jail.”

He repeated that twice (R. 418-421).

On April 5, Rev. Shuttlesworth, President, and N. H.

Smith, Secretary, of the Alabama Christian Movement,

sent a telegram to Police Commissioner Connor at City —

Hall, requesting “a permit to picket peacefully against the

injustices of segregation and discrimination in the gen-

eral area of Second, Third and Fourth Avenues on the —

east and west’ sidewalks of 19th Street on Friday and Sat-.

urday April Fifth and Sixth. We shall observe the normal

rules of picketing. Reply requested” (R. 412-416, 484).

- Commissioner Connor replied that he could not grant such

permits since this was the responsibility of the entire City’

’ Commission and said, “I insist that you and your people

do not start any picketing on the streets in Birmingham,

Alabama” (R.. 352-355, 484).

Petitioners offered to’prove below that the ‘City Com-

mission never issued permits for parades or marches; that

these were, in fact, issued by the City Clerk at the request

of the Traffic Department without authority of statute or

ordinance (R. 344-348, 354). The Court, however, ruled

that since the law required action by the Commission, it |

' was not relevant to.show whether the Commission in fact .

10 ,

followed the statutory procedure and refused to hear the

proof (R. 348-350). 3 tes

On April 6, at about 12:30 P.M., about: 42 persons left

the Gaston Motel in Birmingham and walked two abreast

towards the City Hall to petition the city government for

redress of grievances. They were orderly and obeyed all

' traffic signals. Police officers stopped them and. inquired

whether they had a parade permit. Upon answering “No”,

they were arrested for:“parading without a permit” and —

taken to the city jail (R. 112-113). April 7, at about 4

. P.M,, a similar incident occurred (R. 111-112). April 10,

- at about noon, about ‘ten Negro citizens walked together

towards City Hall carrying picket signs, intending to picket

peacefully to protest the city’s segregation policy. The

Chief of Police stopped them before they reached City

Hall, asked whether they had a permit to picket; upon say-

ing they did not, he arrested them (R: 118-119). ~

Petitioners offered evidénce below on the question of

how the permit statute was applied, to. show that it was

being applied discriminatorily against them. However,

Chief Inspéctor W. J. Haley of the Birmingham ‘Police

Department, was not allowed to answer the question “Isn’t

what is customarily. known as parades something with

bands and signs and—?” (R. 234), or the question “Have

you in your twenty-odd years of experience, yourself, do

you know of your own knowledge of any other group of

_ people similarly situated being arrested for parading with-

out a license?” (R. 232). Inspector Haley had seen school

children marching in two’s to tlie auditorium or to the

museum or to the City Hall, but did not believe this con-

stituted a parade and did not challenge them for parading

without a permit (R. 234). He implied that what made

petitioners’ processions “parades”, was that the leaders

(clergymen) were dressed in robes (R. 234). Haley stated

that some parades were considered “legal” in Birmingham,

but petitioners were not permitted by the court to ascer-

tain what types of parades were allowed (R. 233).

C. The Injunction —

On April 10, the City of Bireleshine filed 2 an ex pate

‘bill. for injunction against petitioners in the Circuit Court

for the Tenth Judicial Circuit of Alabama, Equity Divi-

sion, Jefferson County (R. 65-82).. The City alleged that

from April 3 through April 10; petitioners sponsored and

participated in “sit-in” demonstrations, “trespasses” or

“invasions” into the lunch counters of business establish-

ments where food is served to customers, street proces-

sions with the intent to march on City Hall without a

permit, and picketing places of business (R. 70-72), and

that one man in a crowd “attacked a police dog of the City

of Birmingham,.a member of the Canine Corps” (R. 72).

_ The City alleged that “the present acts and conduct- of

the resporidents [petitioners] hereinabove alleged, is a part

~ of a massive effort ‘by respondents [petitioners] and those

allied or in sympathy with them to forcibly integrate all

business establishments, churches, and other institutions

of the City of Birmingham” (BR. 73).™ oe

The bill for injunction was “presented to W. A. Jenkins,

Jr., Circuit Judge of the Tenth Judicial Circuit of Ala: ,

‘baie, without notice to petitioners, at 9:00 P.M., April 10

_ (R. 65-84, 120); a temporary injunction immediately is-

sued enjoining petitioners from:

11The City also alleged, as the basis for injunctive relief, that tthe

said actions and conduet aforesaid are calculated to cause and if allowed

_ to continue will likely cause injuries: or°loss of life to Police Officers of

the City of Birmingham and have caused and will likely to continue to

eause damage to property owned by the City of Birmingham in the *

operatiqn of its Police Department and will continue to be an undue

burden and strain upon said Police Department” (R. 73).

ee 12,

Engaging in, sponsoring, inciting or encouraging mass

street parades or mass processions or like demonstra-

tions without:a permit, trespass on private property

after being warned to leave the premises by, the owner

or person in possession of said private property, con-

> ° gregating on the street or public places into mobs, and ~

= unlawfully picketing business establishments or pmblic

buildings in the.City of Birmingham, Jefferson County, .

- State of Alabama or performing acts calculated to ~

cause breaches of the peace in the City of Birmingham,

Jefferson County, in the State of Alabama or from

. conspiring to engage in unlawful street parades, un-

~ lawful processions, unlawful demonstrations, unlawful

‘boycotts, unlawful trespasses, and unlawful picketing -

or other like unlawful conduct or from violating: the

ordinances of the City of Birmingham and the Stat-

utes of. the State of Alabama or from doing any acts

designed to consummate conspiracies to engage in said —_

unlawful acts of parading, demonstrating, boycotting,

trespassing and: picketing or other unlawful acts, or

from engaging in acts and conduct customarily known

as “kneel-ins” in churches in violation of the wishes

and‘desires of said churches (R. 76-77).

D. Continuation of Pensajus Protests Against

_ Segregation

After the City of Birmingham obtained the injunction,

petitioners Martin Luther King, Jr., Shuttlesworth, Ab-

ernathy and Walker issued a public statement (in the

~ . form of 4 press release) on April 11, saying in part:

In our struggle for freedom we. have anchored our

faith and hope in the righjmess of the Constitution and

the moral laws of the universe. . . . However. we are

now confronted with recalcitrant forces in the Deép

ne ’ sd ‘ ¢

~ ’

- South that will use the cougts to perpetuate the un-

~ -just and illegal system of racial separation. Alabama

has made clear its determination to defy the law. of

’.. the land. Most of its public officials ... . have openly

- defied the desegregation decision of the Supreme:

Court. We would feel morally and legal responsible

to obey the injunction if the ‘courts of Alabama ap-

plied equal justice to all of its citizens. . .. We cannot

. in all good conscience obey such an injunction which

is an unjust, undemocratie and unconstitutional mis-

use of the legal process. We do this not out of any

‘disrespect for the law but out of the highest respect

for the law... . . Out of our great love for the Constitu-

- tion of the U.S. and our desire to purify the judicial

system of the state of Alabama, we risk this critical

move with an awareness of the possible consequences

involved (R. 305-307, 482-483).

On Good Friday (April 12) and Easter Sunday ¢Apfil

14): some of the petitioners participated in peaceful protest

- demonstrations against segregation. On both occasions they

notified city police in advance to aid them in the perform-

ance of their duties (R. 231, 235, 269-271) and police. ap.

peared at the protests (R. 406-407). Police ‘did not permit

automobiles containing “white persons, nor any white pe-

destrians, to enter the predominantly Negro residential

area where the protest demonstrations’were to begin (R.

210, 225). 2 tly *s

On both Good Friday and Easter Sunday some of the -

petitioners and about 50 to 60 others left church after mid-

. day services, walking in orderly fashion two by two on

the sidewalk. They had informed city officials that they

intended to proceed to City Hall. They were joined by sev-

es y

eral hundred others who had been permitted by the police

to congregate near the church (R. 209-210, 219, 223, 231,

235, 262-263, 284-285): ‘Those who came. from church

walked in columns, of two’s; those who joined them were

qnot in columis but walked abreast, children in front, older

people behind (R. 225). No band played, nor were there |

any uniformed persons among the walkers (R: 330-331),

nor were there any placards {R. 230). They did not cross

against red lights or violate traffic regulations (R. 216).

Police described them a@ orderly, and said that at all times

they had the situation under control; and that law and -

order were maintained (R. 216,,219, 238, 332, 357).

... On both occasions persons in the walk from the churches

. including petitioners, ‘were arrested within a few blocks

, of the church, and charged with parading without a permit

in violation of §1159.

E. Conmenge Judginent: How the Federal Questions

Were Raised and Decided Below

On April 15, petitioners filed a “motion to dissolve in- —

junction and/or application for stay of execution pending

hearing,” in which they asserted that the injunction denied

: them due process of law under the Fourteenth Amendment

because sit. was ‘issued without notice to them, because it

.. was excessively vague, because it was a prior restraint on

- free speech protected by,the First Amendment, because it

was designed to enforce segregation, because it was based

upon a complaint which described only constitutionally pro-

‘tected conduct, and becanse the ordinance upon’ which it

was based excessively vague (R, 100-119). Petitioners —

also filed urrer (R. 176-178), an answer (R. 178-180),

and an answer (R. 186-189) to the bill for in-

Pai .

Ne ott

Sunstein} in which they raised similar -silesaibulteian: elaims.~

After petitioners filed their motion to dissolve the injune-

tion, the City af Birmingham filed a motion for an order —

' to. show cause.why petitioners should not be held in. con-

tempt for violating the ex parte temporary injunction (R.

119-144). The court ruled that even though petitioners had

filed their motion to dissolve first, it would consider the

City of Birmingham’s show cause order for contempt first .

(R. 194-195).

6 : a

In response to the City of Birmingham’s show cause

order for contempt, petitioners filed a “motion to discharge

and vacate order and rule to show cause” saying that they

had not violated the injunction because it prohibited en-,

gaging in or encouraging others to engage in “unlawful” .

conduct, specified therein, whereas the petitioners’ conduct

was lawful conduct protected by the First Amendment and

the due process and equal protection clauses of. the Four-

teenth Amendment to the Constitution of the United States. .

Petitioners also said that the original bill for injunction

upon which the tempegrary injunction was based did not

show that they had ‘engaged in unlawful conduct but that

they had engaged in conduct protected by the First and.

Fourteenth Amendments (R. 181-182). 5

In their answer to the show cause order,. petitioners de-

scribed the lawful conduct protected by the First and

Fourteenth Amendments in which they had engaged:

na) Walking two abreast in orderly manner on the pub-

, lie sidewalks of Birmingham observing all traffic regu-

» ati s with prior notice having been given to city .

officials in order to peacefully express their protest .

against continuing ‘racial discrimination in ‘Birming-

ham. ne F

b) Peaceful picketing in small groups and in orderly

manner of publicly and privately owned facilities.

c) Requesting service in privately owned stores open

~ to the general public in exercise of their right to equal

_ protection of the laws and due process of law which —

are denied by Section 369 of the 1944 General City

. . Code of ramet (R. 184-185).

At the contempt hearing petit tioners ethers evidence on

the issue of what éonstituted activity falling within the ban

on paratling without a permit, to show that this rule was

applied discriminatorily against petitioners in violation .

of their rights -to equal protection under the Fourteenth

. Amendment. The court excluded the evidence, saying “I

think the only question : was did they or did they not have a

permit” (R. 232-234).

—

‘Petitioners also offered evidence. that t they requested a

| “parade” permit which was denied arbitrarily, i in violation

of the Fourteenth Amendment. This was excluded on the

ground that they had not followed the statutory 12 Vinee

for obtaining permits (R. 420-421).

Petitioners offered to prove that the statutory procedure

, was in fact never followed, and that it would be a denial

of equal protection of the laws secured. by the Fourteenth — 7

Amendment to require petitioners to follow it (R. 344-348, °

354). The Court ruled this was not relevant, and refused

the offer (R. 348-3509. The Court refused an offer of proof

that there were no published rules and regulations pre-

‘seribing the manner in which permits are actually ob-

tained (R. 350)..

Petitioners offered to prove that parade permits were

_ freely given to white :persons under similar circumstances

‘ and for similar activities, which denied petitioners’ Four-

_ e’

. _ . °

PPLE LOG LRG A ts meee ~~ . . om *

° 3 Ms . =i,

ws a) sy ;

teenth Amendment rights. The court refused this offer

(R. 344-355, 232-234).

Petitioners offered. to prove that the purpose of their

activities was to protest against unconstitutional racial

discrimination by. exercising the right of free speech pro-

tected by ‘the First and Fourteenth Amendments ; this was

refused (R. 360).

. After presentation of the City of Birmingham’s evidence

during the hearing on the show cause order, petitioners

filed a “motion to exclude testimony against all respon-

dents [petitioners]” (R. 190-191) in which they asserted

that there was no evidence showing why they should be

punished for contempt based on “the statements made pub-

licly at press conferences and mass meetings on April 11,

1963,” since the evidence showed that they had “engaged

‘only in activity protected by the First Amendment and

by the due process clause of the Fourteenth Amendment

to the Constitution of the United States.” Petitioners T.

' L. Fisher and J. W. Hayes asserted that there was no evi-

dence showing that they were served with copies of the

court’s injunctive order of April 10, 1963, prior to their

arrest and imprisonment for parading without a permit on

April 12 or April 14, 1963 (R. 191).

_ The court.said that the basis of the show cause order,

chatging contempt; was the issuance of the press release

containing allegedly derogatory statements about Alabama

courts and,. particularly, the injunctive order of that court,

and petitioners’ participation in alleged: parades in viola- _

tin of the permit ordinance (R. 475-476). In response to

petitioners’ claim that their acts were lawful because con-

stitutionally protected by the First and Fourteenth Amend-

‘ments, and that the order enjoining peaceful protests ‘was

void because. it enforced Section 369 of the 1944 Code of

Birmingham requiring segregation in eating facilities, the

Court said the parade ordinance “is not invalid upon its

face as a violation of ‘the constitutional rights of free

. Speech as afforded to these defendants in the absence of

a showing of arbitrary and capricious action upon the part

_of: the:Commission of the City of. Birmingham in denying

the defendants a. permit to conduct a parade” (R. 476-

478). The Court held petitioners in contempt (R. 478)’.

and sentenced them to 5 days in jail and $50 fines (R. 480)...

In petition for certiorari to the Supreme Court of Ala-

bama, petitioners made substantially the ‘same claims as

- . below, asserting that the judgment of contempt denied

‘rights secured by the First and Fourteenth Amendments

in that the punishment constituted a prior restraint. on

freedom of speech, association, and the right to petition

for redress of grievances; that the injunction was exceés-

sive and vague, contrary to the due. process clause of the

Fourteenth Amendment, particularly in the context of an’

order restraining First Amendment rights; and that the

City of Birmingham failed to produce: evidence which

showed that petitioners did anything other than exercise

constitutional rights of free expression, and that, there-

fore, the contempt decree was baged on no evidence of

guilt, in violation of the due process clause of the Four-

teenth Amendment (R. 24).

The Alabama Supreme Court held that because peti-

tioners admittedly continued protest demonstrations after

the injunction issued, they violated the order against en-

_ gaging in parades without permit (R. 512-514). The Court

said, “Petitioners rest thu:r case on the proposition that

Section 1159 of the General City Code of Birmingham,

which regulates street parades, is void because it violates

the First and Fourteenth Amendments of the Constitution

of the United States, and, therefore, the temporary in-

junction is void as a prior restraint on the constitutionally

protected rights of Creedons of speech and assembly” (R.

.515). The Court held that “the circuit court had the duty

and authority; in the first instance, to determine the va- -

lidity of the ordinance, and, until the decision of the cir-

cuit court is reversed for error by orderly review, either

by the circuit court or a higher court, the orders of the

circuit. court based on its decision are to be respected and

disobedience of them is contempt of its lawful authority,

_. to be ‘punished, ” and therefore affirmed petitioners’ con-

victions for contempt on 522).

REASONS FOR GRANTING THE WRIT

: |

Petitioners’ rights under the due process and equal.

protection clauses of the Fourteenth Amendment were

infringed by their conviction for contempt where the

_ injunction they are charged with disobeying is in Wola-

tion of their First and Fourteenth Amendment rights.

Petitionaes contend that suppressing their protests’

against racial segregation violated constitutional guaran-

‘tees. The ex parte injunctive order of April: 10, 1963

{R. 76-77), the city ordinance prohibiting parades with-

‘out permits which underlies the injunction (General City

Code, 1944, Section 1159, supra, pp. 3-4), and the judg-

ment of contempt (R. 475-480), violated First and Four-

teenth Amendment guarantees of free speech and assembly.

The case presents important issues of free assembly, speech

and petition for redress of grievances in the .context of.

the total racial segregation policy of Birmingham in 1963.

This Court has reviewed other cases involving similar ques-

tions and has recognized the public re of the i is-

| sues?

The case comes wa three years after the events because

the Alabama Supreme Court kept it under advisement from

August 22, 1963 (R. 499), until December 9, 1965. But the

use of state court injunctive and criminal process to sup-

press peaceable assembly continues to present public ques-

tions of first importance.

The trial court rejected petitioners’ constitutional at-

tack on the injunction and the parade permit ordinance ‘on

the merits (R. 477-478), and held petitioners in contempt

for disobedience of an order enjoining “unlawful parades”

and parades without permits provided for in City ‘Code

$1159. (The trial court also apparently found some peti-

tioners in contempt for issuing a statement at a press

conference which was allegedly disrespectful and in defiance ©

- of the court’s authority. See part III, infra.)

On certiorari the Alabama Supreme Court held that

petitioners might be punished for disobeying the injunction,

- whether or not the injunction violated their constitutional

rights, relying upon its interpretation of U nited States v.

United Mineworkers, 330 U.S. 258 (20a-25a).. With that |

view of the law, the court found it unnecessary to discuss

the validity of the injunctive order ‘and constitutional

objections pressed by petitioners. Nor did the court below

mention petitioners’ defense that their conduct did not

violate the injunction because the order prohibited “un-

lawful parades” and their conduct was not “unlawful,

but was constitutionally protected.

——

12 Between 1961 and 1965, this Court passed on more than 30 cases

involving sit-in demonstrations. During recent years the Court also

passed on numerous cases. involving protest marches as in Edwards v.

South Carolina, 372 U.S. 229, and Cox v. Louisiana, 379 U.S. 536.

In the discussion abd follows, we first urge that the

. injunctive order of April 10, 1963, and §1159 are both un-

constitutional and violate pétitioners’ constitutional rights

to free speech and assembly on various grounds including

Fourteenth Amendment vagueness and equal protection

claims. Second, we urge that there was no evidence of an

“anlawful” parade forbidden by the injunction, and hence

no evidence of guilt within the doctrine of Thompson v.

Louisville, 362 U.S. 199, and Fields v. City of Fairfield, 375

U.S. 248. Third, we argue that even assuming, arguendo,

that petitioners did disobey the injunction, the state may

not constitutionally punish disobedience of an ex parte in-

-junctive order which infringes constitutional rights to

. free speech and assembly.

A. The en jarte tijenction of Aprit 10, 1968, and

Section 1159 of the Birmingham City Code violate

petitioners’ First and Fourteenth Amendment rights.

1. ‘Vagueness of the Injunction’ s Terms. oS a

The April 10, 1963, injunction undertook to end all Negro :

protest against the segregationist. regime of Birmingham.

The order was issued’-without notice or hearing on the

basis of the City’s complaint verified by Public Safety

Commissioner Eugene “Bull” Connor,-: and affidavits of

several policemen describing certain demonstrations against _

discrimination, In broad and sweeping language the order

undertook to prohibit, inter alia, parades without permits,

‘trespasses after warning, “unlawfully picketing business

establishments or public buildings,” “unlawful boycotts,”

and “performing acts calculated to cause breaches of the

peace in the City of Birmingham” (R. 76-77).

If this case requires review of all the injunction’s pro-

hibitions there should be no doubt of its invalidity. - For

example, the anti sit-in demonstration provision directly

aided the City ordinance compelling restaurant segregation

which this Court referred to.in invalidating convictions

_ in Gober-v. Birmingham, 373 U.S. 374, and* Shuttlesworth

and Billups v. Btrmingham, 373 U.S. 262. The general -

prohibition against “Acts calculated to cause breaches of

the peace” is plainly a vague and overbroad infringement

__ of free speech and assembly. Edwards v.. South Carolina, .

372 U.S. 229; Fields v. South Carolina, 375 U.S. 44; Henry

v. Rock Hill, 376.U.S. 776; and Cox v. Louisiana, 379 USS.

536, 544-552. ay

But the trial court apparently based its contempt fixtd-

_ sing only on an alleged violation of the portions of. the in-

junction prohibiting certain petitioners" “from engaging

in, sponsoring, inciting, or encouraging mass street parades

or mass procession .or like demonstrations without a -per-

mit” and from “conspiring ; ‘to engage in unlawful street

" parades, unlawful processions, unlawful demonstrations —

or other like unlawful conduct or from violating the ordi-

‘ nances of the City.of Birmingham and the Statutes of the

_ State of Alabama .?.”. The trial court never stated pre- '

cisely what portion of the order it thought was violated,

but rests on ‘the conclusion that petitidners conducted a

- parade-without a permit as well as upon alleged disrespect-

. ful remarks at a press conference. Thére was no apparent

reliance upon any theory that. petitioners violated the

order ‘by any means other than parading without a per-—

_ mit (R. 360): ..

. The Court: The ealy charge has been this particular i

parade, the one on Easter Sunday and the one on

48 Petitioners J. W. Hays and T. L. Fisher were not named as respon-

dents in the injunction suit, named in the injunction order, or served with

copies of the injunction prior to the alleged violation of the order. The

separate arguments addressed to this situation are set —_ below at

pp. 42 to 44. | °

Good Friday, and on the eneiiin of the meeting at

which time some press release was €ssued. Am I cor-

om in that?

Mr. McBee: Essentially that .is correct.

‘The Court: I don’t know of any other evidence or any

other Occasions. other than those, and I see no need

there has been no proof along that line.

The Alsboma Supreme Court quotes this statement and

- says that petitioners did parade or march without a aes

contrary to the order (17a-18a). -

«The order\is vague and overbroad insofar as it merely ~ /

‘aa *““unla ul” parades and demonstrations. A gen-

. eral prohibition against “unlawful” parades requires those

enjoined to determine at their peril the lawfulness of a

_ proposed garade by reference to the whole body of the law,

including, applicable constitutional provisions. Where the

only guideline is the Constitution those enjoined are le

~/? gauge the full range of legal and. factual issues neces-.

sary to a.decision of whether a particular parade is con-

stitutionally protected. An injunction making the constita-

_ tional boundary the line of criminality is obnoxious to all

the objections which have led this Court to void statutes

which encroached overbroadly+ on constitutionally pro-

tected conduct. First} because the constitutional boundary

is obscure and often presents:a difficult question,<the in-

junction gives no fair notice, “no warning as to what may

fairly be deemed to be within its compass.” Mr. Justice

Harlan, concurring in ‘Garner v. Louisiana, 368 VS. 157}.

185; 207; see Note, Amsterdam, The Void-for-Vagueness

. « Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67; 76

(1960), and authorities cited in footnote 51. Second, such

a vague proscription is readily susceptible of harsh, im- ——

24 a ot

. , ?

. proper and discriniinatory enforcement. Cf. N.A.A.C.P: v.

Button, 371 U.S. 415, 433; Thornhill v. Alabama, 310 U.S.

88, 97-98. Lastly, such an” order effectively coerces the

citizen to surrender his right to,engage in protected pro-

test through fear of punishment ‘for contempt, and thus

inhibits free expression. See Thornhill v. Alabama, 310

U.S. 88, 97-98; Smith v. California, 361. U.S. 147, 150-151;

Cramp v. Board of Public Instruction, 368 U.S. 278, 286-

288; Bantam Books, Inc. v. Sullivan, 372. U.S. 58, 66-70;~—

Baggett v. Bullitt, 377 US. 360, 378-379 ; Dombrowski v.

Pfister, 380 US. 479, 494. 4 “

This general prohibition against “onlawful” parades

and demonstrations presents essentially the same question

presented by prosecutions under generalized conceptions

of breach of the peace in Edwards v.. South Carolina, 372

U.S. 229; Fields v. South Carolina, 375 U.S. 44; Henry v.”

Rock Hill, 376 U.S. 776; and Cow -v. Louisiana, 379 U.S. °

536, 544-552. In each case the Court made clear that free

speech and assembly may be regulated only by precise

_ and narrowly drawn rules. See also Cantwell v.’ Connecti- -

- cut, 310 U.S. 296; Terminiello v. Chicago, 337 US. 1; .

Stromberg v. California, 283 U.S.:359; Ashton v. K inteaades,

pevaaes USS. ........ (May 16, 1966, 34 U.S. Law Week 4398).

And, of course, ‘the fact that the Vague proscription ema-

nates from a sweeping judicial edict rather than from a

vague legislative eriactment cannot save it, because the pro-

‘tections of the Fourteenth Amendment apply with -equal

force to the judiciary. N.A.A.C.P. v. Button, 37] U.S. 415;

‘Thomas v. Collins, 323 U.S. 516; cf. Shelley v. Kraemer,

334-U.S. 1; Johnson v. Virginia, 373-US. 61; Hamilton v.

Alabama, 376 US. 650; N.A.A.C.P. v. Alabama, 357 U.S.

449, 462. ,

eo eee. ee

2. The Uncanstitutionality of §1159 on Its Face-and as

. Applied.

. The injunction’s pavhibitjen against parades “without

©. . Permits” is equally invalid because the applicable permit

requirement is in Birmingham City Code $1159 which is

unconstitutional on its face, and as applied. Indeed, the ve

Alabama Court of Appeals has-held $1159 unconstitutional <

in a criminal proceeding arising from the: same Good Fri-

day walk involved in this case. ‘See Shuttlesworth v. City

of Birmingham, ........ Ala. App. ......... 180 So.2d 114 (1965),

(cert. granted by Ala. Sup. Ct., iene 20, 1966). Judge

Catés wrote that the conviction was invalid on several dis--

tinct grounds, viz., because §1159 imposed. an invidious —

prior restraint on free use of the streets; because it lacked _

ascertainable standards for granting or denying permits;

because it was discriminatorily applied contrary to Vick

*Wo v. Hopkins, 118 U.S. 356; and because there was in-

sufficient evidence that §1159 was violated by the Gdod

Friday walk on the sidewalks. ‘The City’s appeal from that

decision is now pending in the Alabama ‘Supreme Court,

) but the invalidity of §1159 under a host of this Court’s

decisions is plain.

The ordinance plainly fails to provide ene and

constitutional standards for granting or denying permits

and commits. the decision of tke Tight to peaceful use of _

the streetsgfor protest to the uncontrolled discretion of

the licensing officers. Pursuant to §1159 the Birmingham

City Commissian should grant a permit “unless in its judg-

- ment the public welfare, peace, safety, health, decency, -

good order, morals or convenience require that it be re-

fused.” The ordinance requires that the applicant state

“the purposé for which it [any parade, procession or other

public demonstration on the streets | is to be held or had.”

Thus, by committing to the ‘commissioners the right to

>. {

decide, in view of the purpose of a demonstration, whether

the “public welfare,” etc., will be served, the Commis-

sioners are empowered to suppress any protest they dis-

_ approve of. The law is unconstitutional on its face under

- this Court’s decision in Coz v. Louisiana, 379 U.S. 536, -

553-558, and: the precedents cited therein. As the Court:

stated in Cox, supra, 379 US. at 557-598 :

It is clearly unconstitutional to enable a public official

to determine which expressions of view will be per-

mitted and which will not or to engage in invidious

discrimination among persons or groups either by use

of a statute providing a system of broad discretionary

licensing power or, as in this case, the equivalent of

_such a system by selective enforcement of'an extremely

broad. prohibitory statute.

See also, Schneider v. State, 308 U.S. 147, 163-164; Lovell’ _

v. Griffin, 303 U.S. 444, 447, 451; Hague v. C.I.0., 307 U.S“

496, 516; Largent v. Texas, 318 U.S. 418, 422; Sata v. New

York, 334 U.S..558, 559-560; Niemotko v. Maryland, 340

U.S. 268, 271-272; Kunz v. New York, 340 U.S. 290, 294;

and Staub v. Bazley, 355 U.S. 313, 322-325. Cf. Shuttles-

worth v. Birmingham, 382 U.S. 87, 90; Freedman v. Mary-

land, 380 U.S. 51, 56.

Coa v. New ‘Hampshire, 312 U.S. 569, ited hy the trial

court, is distinguishable from this case. For in Cox there

were no “licensing systems which vest. in an adminis-_

_ trative official discretion to grant or withhold’a permit

- upon broad criteria unrelated to proper regulation of _ .

lie places.” Kunz v. New York, 340 U.S. 290, 293-294, >

And, of course, the Court has “uniformly held that the

failure to apply for a license under an ordinance which on

its face violates the Constitution doés not preclude review

en ern

: tS _ aigte =

in this Court of a jodgment of conviction under such an °

ordinance.” Staub v. Bazley, 355 U.S. 313, 319.

The Alabama Court of Appeals has held that 61159 was -

| discriminatorily applied i in reversing the prosecution of pe-

titioner Shuttlesworth for the Good. Friday 1963 march.

_ Shuttlesworth v. City of Birmingham, Sane! ee ;

180 So.2d 114, 136-139 (1965). After analyzing the record

in that case and in other prosecutions under the law (in ©

~ particular, Primm v. City of Birmingham, 42 Ala. App. 657,

177 So.2d 326 (1964)), Judge Cates concluded that the ~

“pattern. of enforcement exhibits a discrimination: within

the rule of Yick Wo v. Hopkins, supra” (180 So.2d at 139).

In this contempt proceeding, petitioners made repeated -

_ efforts to prove their claim of discriminatory enforcement

in violation of the equal : protection clause. (See infra,

pp. 29 to 30). The trial court refused to ‘admit much

of the testimony. However, a sufficient showing was made

to establish a violation of the equal protection clause in the

administration of $1159.

Some parades were considered “legal” and allowed in

. Birmingham, although the trial court would not allow peti-

tioners to develop what type of parades were permitted

(R. 233). Repeated efforts of civil rights demonstrators

to obtain permits were rebuffed, although the authorities

‘ were advised of their plans by the demonstrators them-.

selves (R. 231, 235, 269, 271) and by police investigators

(R. 219-221). When representatives of Rev. Shuttlesworth

‘went to see the person in charge of issuing permits for pa-

rading, picketing and demonstrating they were referred to

Public Safety Commissioner Eugene “Bull” Connor. Mrs.

Lola Hendricks told Connor “We came up to apply or see

,about getting a permit for picketing, parading, demon-

strating” (R. 420), and “asked if he could issue the permit”

or refer her to “persons who would issue a ened ” oe

Connor replied by stating:

No, you will not get a@ permit in Birmingham, Alabama

to picket. I will picket you over. to the _ Jail

(R. 420).

This evidence is sufficient to invalidate the ordinance and

the convictions. Cf. Lombard v. Louisiana, 373 U.S. 267.

‘Two days later, Rev..Shuttlesworth sent a telegram to

Mr. Connor (BR. 484), requesting a permit to picket (R.

484). Mr.«Connor wired back that a permit “cannot be

granted by me individually but is the responsibility of the

entire commission,” and then added: “I insist that you

_ and your people do not start any picketing on the streets

in Birmingham, Alabama” (R. 484). :

Mr. Connor’s statement to Mrs. Hendricks siniady es-:

tablishes an arbitrary and capricious-administration of the

permit law. The refusal to receive an application for a

’ permit or to furnish her with information other than the

statement that picketing would not be permitted plainly

‘shows the operation of uncontrolled and abused discre-

tionary power. Mr. Connor did not even Seek from Mrs.

Hendricks any information as to the time and place of

proposed deontrton the number of participants or

any information relevant to any permissible factors in de-

ciding a permit request. Immediately when confronted

with a representative of the Alabama Christian Movement

_ for Human Rights, Connor rejected the request.

As. Mr. Justice Black wrote concurring in Coz v. Loui-

siana, supra, 379 U.S. at 580-581:

iP believe that the First and Fourteenth Amendments .

require that if the streets of a town are open to some

views, they must be open to all. _ | }

Fae CR te inate > rein ee Ne Tee eee e

CiTBice hen Prae ced

‘

lca SMS nit dct et oasis

ee eee

a):

And to deny this appellant and his group use of the

streets because of their views against racial discrimi-

nation, while allowing other groups to use the streets

. to voice opinions on .dther subjects, also amounts, I

think, to an invidious discrimination forbidden by the

Equal Protection Clause of wad Fourteenth Amend-

ment.

See also, the concurring opinion of Mr. Justice Clark in

Cox, supra, 379 U.S. at 589. Under the regime of Eugene

“Bull” Connor the streets of Birmingham were “open to

- some views,” but not open to all. The ordinance as applied

denied equal protection.

8B I mproper Exclusion of Evidence on the Unconstitutional

Application of §1159.

Petitioners’ various proffers of sill which the trial

court refused to hear demonstrate even more conclusively ~

that the ordinance was not fair in its application. Indeed,

petitioners offered to prove that the procedure specified. by

§1159 was never followed, that the city commission never

‘issued permits under §1159 and that this function cus-

tomarily was performed by the City-Clerk at. the request

of the Traffic Department without any statutory authority ‘

(R. 344-354). It was established that there were no pub-

lished rules or regulations other than §1159 (R. 350). How-

_ ever, the trial court would not permit witnesses to answer

whether the city commission had ever voted on issuance of

permits (R. 347). 3

If the Court should believe that the evidence is insuf-

ficient to establish an ‘unconstitutional administration of

the ordinance, petitioners are at the least entitled to an

opportunity to prove the facts at a new hearing. The trial -

court’s conclusion that there was an “absence of a show- .

ing of arbitrary and capricious action upon the part of

— 30

the Commission of the City of Birmingham in denying the

defendants a permit to conduct a parade on the streets...”

was patently erroneous in view of the refusal to hear evi-

dence on the subject. The exclusion of such evidence was’ ~

in itself a denial of due process of law to petitioners. Cf.

Caleman v. Alabama, 377 U.S. 129, 133; Carter v. Texas,

177 US. 442, 448-449,

B. The entvatetion denied due process because there

ioas no evidence petitioners participated in a for-

bidden “unlawful” parade or demonstration. —

This Court has made it plain in Thompson v, Louisville,

362 U.S. 199, and in subsequent cases applying its rule, that

a conviction where there is no evidence of guilt denies due

process. See Garner v. Louisiana, 368°Y.S. 157; Fields v.

' City of Fairfield, 375 U.S. 248; Taylor v. Louisiana, 370

U.S. 154; Barr v. City of Columbia, 378 U.S. 146; Shuttles-

worth v. Birmingham, 382 U.S. 87, 93-95. Fields. v. Fair-.

field, supra, makes clear that this applies as much to a con-

tempt—presecution as to other criminal charges. In such

cases the Court has ascertained the elements of criminal-

ity and examined the record to determine if there was any

evidence of guilt. -Here petitioners were enjoined against

“gnlawful” parades in violation of the Birmingham parade

ordinance. -To sustain a conviction, the State was bound to

prove that petitioners oe participated i in an “onlaw-

ful” parade. .

There was no proof that the seelid' were unlawful. The

arguments set forth in Part IA, above, pp. 25 to 29,

demonstrate the invalidity of the permit requirement of

§1159 on its face and as applied, as well as the vagueness

of the injunction against “unlawful” parades and demon-.

strations. And, of course, there was no evidence, and there

could Have been no evidence, that petitioners knew the

ee haben oR ne AO eh iyi ae oe ae

wenn’

= a

wcll hairline sapem er Nee

31.

demonstrations were unlawful. There has never been any. -

suggestion that the parades were unlawful except by

_ reference to the permit requirement of section 1159. The

constitutional invalidity of that provision undermines any

possible claim that the petitioners knowingly violated the

injunction’s prohibition against “unlawful” parades.

Neither was there any evidence that petitioners partici-

pated in any parade for which a permit :-was required under

-§1159. The Alabama judicial construction of §1159 as ap-

plied to the. very same’ Good Friday events involved in

‘ this case is that the mere presence of a group walking

together on the sidewalks, obeying traffic regulations and

not walking on the roadway does not require a permit.

Shuttlesworth v. City of Birmingham ........ Ala. App. ........ -

180 So.2d 114, 139 (1965) (pending on certiorari). Judge

which would require, under the terms of _ the deci

of a permit.’””

The same conclusion follows with respect to petitioners

| who participated in the Easter Sunday march. They, too,

_were walking on the sidewalks, and obeyed traffic signals.

On both occasions police blocked off traffic and had large

numbers of officers present and in control of spectators

whom the police permitted to gather. And on both occasions .

members of the crowd of spectators followed the people .

who came out of the: church. The conviction is baged on

no evidence of guilt because there was no prohibited “un-

i lawful” parade, and no parade. in violation ofthe permit

requirement of §1159 as construed by the Alabama Court

_ of Appeals. — :

- The Alabama Supreme Court relies upon a supposed

admission in petitioners’ brief in the court below (18a-

.19a). The brief said only that after the injunction peti- |

ee ee ren oe Pe Pe MITONDS ee OT ow

tioners continued their participation in “protest demonstra-

tion.” There was no admission that petitioners participated

in a prohibited “unlawful” parade. or demonstration or that

they violated a valid permit requirement. To the contrary,

petitioners’ brief argued af length that their conduct was

constitutionally protected and that there was no evidence

of their guilt under the doctrine of eaempiye v. Louisville,

862 U.S. 199.

If the Court should determine that there was no evidence

that petitioners violated the injunction, if will be unneces-

of an unconstitutional ex parte injunction. Fields v. City

of Fairfield, 375 US. 248.

Il.

Assuming arguendo that petitioners did disobey the’

injunction, Alabama may not validly punish them be-

- cause the ex parte injunction was Void as an unconstitu-

tional infringement of their rights to free speech and

assembly.

_ The opinion:of the Alabama Supreme Court holds that

United States v. United Mine Workers, 330 U.S. 258, per-

mits punishment by criminal contempt for the violation

. Of an ex parte injunction without regard tothe constitu-

tionality of the injunctive decree. Indeed, the court below |

(unlike the court in Mine Workers) did not even discuss.

whether or not the injunctive order was valid.

The case thus presents the grave question, whether citi-

zens may be jailed for disobeying an ex parte injunctive

order which violates their constitutionally protected rights

_to free speech, peaceable assembly and petition for the

redress of grievances. This is a question of paramount

os oe ee an mals

importance. Its decision may well determine whether the

First Amendment freedoms will have continued vitality.

This Court recognized the gravity of this question by _

granting certiorari in a similar Alabama case and inviting

the United States to participate and argue the cause orally

as amicus curiae. Fields v. City of Fairfield, 375 U.S. 248.

In Fields, the court found it unnecessary to decide this

issue which had been thoroughly briefed and argued."

More recently, in Donovan v. Dallas, 377 U.S. 408, 414, in--

volving the power of states to’deny access to the federal

courts, the Court expressly declined to pass on whether dis- —

obedience of an invalid order could be -punished, because’

the issue had not been previously considered by the state

court. We read the Donovan.case as at least.a partial con-

firmation of our view, urged in detail below, that the ques-

tion is not foreclosed by Mine Workers, supra.

First Amendment freedoms can be destroyed if citizens

" may be punished for disobeying ex parte injunctive decrees

which violate the First Amendment. The proposition is so

plain that it requires no elaborate analysis to demonstrate

its validity. Plainly, some courts will use the injunctive

- power to suppress free expression of unpopular ideas.”* »

' 14 Fields v. City of Fairfield, No. 30, Oct. Term, 1963, Brief for Appel-

lants, pp. 21-36; Brief for the N.A.A.C.P. Legal Defense and Educational

Fund, Inc. as amicus curiae urging reversal, passim; Brief for the United

. States as amicus curiae urging reversal, pp. 11-13. The United _—.

pointed out in its brief (at pp. 12-13, n. 19) :

It is, of course, well settled that failure to apply. for a permit

under a licensing statute does not bar a subsequent attack on its

constitutionality. Smith v. Cahoon, 283 U.S. 553; Lovell v. Griffin,

303 U.S. 444; Staub v. City of Baxley, 355 U.S. 313. By a ity

of reasoning, it may be argued that one should not be compelled to

“apply for the dissolution of a plainly invalid judicial decree in order

to preserve the question of its constitutionality woes conviction for

disobeying it.

- 18 See for example N.A.A.C.P. V. Alabama, 357 U.S. 449; id., 360 U.S.

240; id., 377 U.S. 288; Congress of Racial Equality v. Douglas, = F.2d

95 (5th Cir: 1963).

La)

* Plainly, the power to enforce unconstitutional law is. the

power to govern unconstitutionally.. We do not believe that

the power of courts to defend their dignity requires or —

permits the power to destroy or “whittle ‘away” the First

- Amendment. Cf. Re Oliver, 333 U. S. 257, 278.

The Mine Workers’ decision should be distinguished,

limited to its non-constitutional context, or overruled. The

- result in Mine Workers did not depend: on the view that

void orders ‘must be obeyed, because five members of the —

Court held the injunction valid."* There was no claim in

Mine Workers that the injunctive order was unconstitu-

tional or affected free speech rights; the possible applica-

tion of the rule. against disobeying invalid orders to con-

_ stitutional claims-was discussed only by the dissenters

(330 U.S. at 352). The principal precedent relied on for

the Mire Workers: rule (United States v. Shipp, 203 U.S.

563),?" was a case where the judicial order was plainly

valid, and where there was no tenable claim that the court

order violated the contemnor’s First Amendment or her

constitutional rights.

_ 18In United States v. United Mine Workers, 330 US. 258, the opinion

of the Court, by Chief Justice Vinson (joined by Justices Reed and

. Burton) held the injunction valid and stated as an alternative —

. that disobedience of non-frivolous orders could be punished. Justi

Black and Douglas concurred, solely on the ground. that the injuncti

was valid without deciding whether violation of void orders might

punished. Justices Jackson and Frankfurter held the order invalid

agreed with C. J. Vinson and Justices Reed and Burton that invalid or-

ders could be enforced by criminal contempt. Justices Murphy and

Rutledge dissented on the ground that the order was invalid and that

invalid orders might not be enforced by contempt.

Thus, the contempt judgment was affirmed by a 7-2 vote. Five justices

thought the order valid, four thought it invalid. Five thought invalid

- orders might. be enforced by contempt; two justices ei and ‘two

expressed no view.

37 Worden v. Searls, 121 U.S. 14, also cited in Mine inti was not

a criminal contempt case.

eaten mauadee Sinvtanre Se OS Ee ee ee

This Court has, said that: mint : seein freedoms

” need breathing Space to survive.” N.A.A.C.P. v. Button

- 71 U.S. 415,. 433. A “system of prior restraints of exh

pression comes to this Court bearing a heavy presumption.

against its patron Ae validity,” Bantam Books, Ine. v.

Sullivan, 372 U.S.:.58, 70. See Near-v. Minnesota, 283 U.S.

697 ; Thomas v. Collins, 323 US. 516; Freedman v. Mary-

land, 380 U.S. 51.- Ex parte injunctive orders restraining |

free expression without.any adversary contest of factual or

legal issues determinative*of constitutional claims, impose _

prior restraints totally devastating to the right of free ex-.

pression. They should be treated with the same suspicion

accorded to administrative prior restraints. Cf. Freedman

~-v. Maryland, 380 U.S. 51, 57-59. A rule that forbids chal-

lenge of ex parte injunctions in contempt proceedings,

despite their unconstitutionality, creates_a prior restraint

effectively immunized from challenge.

The undeniable effect of the rule stated by the court below

is to permit the states to jail persons for acts protected

hy the Constitution. In other contexts this Court has

recognized that both direct and indirect state efforts to

render constitutional rights ineffective must be prevented.

whatever the form of the state ‘action. Compare Barrows

_v. Jacks6h, 346 U.S. 249, with Shelley v. Kraemer, 334 U.S.”

“1, And see, Cooper v. Aaron, 358 U §. 1, 17, and cases cited.

It is argued in support of the_result reached below that

the. principle stated is necessary. in aid\of respect for the

courts and to preserve the rule of law through orderly

judicial processes. A variety- of decisions of this Court

(both before and after Mine Workers, supra) demonstrate

that this is not sound. In such cases as Johnson v. Virginia,

373 U.S. 61 (courtroom segregation), and Hamilton v.Ala-

baia, 376 U.S. 650 (witness ordered to testify despite

racially discriminatory form of address), this Court re-

9 ) 36

jected arguments that a judge’s orders, like thdse of a

ship’s captain, must be obeyed whether right or wrong: See |

algo, George v. Clemmons, 373 U.S. 241 (courtroom segrega-

tion). And where a judge improperly ordered a witness to

surrender his privilege against self-incrimination, the Court -

- reversed a contempt conviction notwithstanding the affront _

to the Court’s dignity. Stevens v. Marks, 383 U.S. 234. See

also Re Oliver, 333 U.8. 257, 278. The only difference be-_

tween those cases and this one is that here the court order

is labeled “injunction. ” Mere labels should not determine

basic constitutional rights. N A.A.C.P. v. Button, 371 US.

| a, 429.

- ¢ Thomas v: Collins, 323 U.S, 516, was sitniliar to this —

case. There was no suggestion that disobedience of the in-

valid order required punishment notwithstanding the in-

fringement of constitutional Tights. ‘And see the pre-Mine

Workers cases holding that no penalty could be imposed for °

disregard of void orders. Ex parte Sawyer, 124 US. 200;

Ex parte Fisk, 113 U.S. 713; Ex parte Rowland, 104 U.S.

— 604.

In the 19 years rm Mine Workers ‘gis Court ie not

applied its principle to enforce a void @pcree by criminal

contempt. Indeed, it has been distinguished or ignored in

‘the context ‘of labor disputes where no constitutional claims

_ were “tendered. Mine Workers was not mentioned at all

in United Gas, Coke and Chemical Workers v. Wisconsin

_ Employment Relations Bd., 340 U.S. 383, when ‘the Court

reversed contempt genvictions on the ground that the in-

junction disobeyed was void because of federal preemption.

. In Re Green, 369 U.S. 689, the Court explicitly distinguished

Mime Workers and reversed a contempt conviction where

the injunction was void because Congress preempted the . :

field. Re Green, supra, leads, a fortiori, to the conclusion

‘

“8 ; 37 >

that an inhibition on state judicial power of constitutional

(as opposed to statutory) dimension renders an injunction

equally void.

Certainly this issue, which is so vital to the enjoyment of

First Amendment rights,.cannot turn solely on the basis

of loeal practice or procedure. Punishment under an un-

constitutional injunction presents a constitutional question

_for-this Court to decide apart from any issue of Alabama

procedure. Cf. Davis v. Wechsler, 263 U.S. 22, 24; Wright

v. Georgia, 373 U.S. 284; NAACP v. Alabama, 357 US: .

449; NAACP v. Alabama, 377 U.S. 288. f

We submit that a doctrine compelling obedience ‘ a

‘lawless judicial order wilt do more to promote disrespect

for law. than a contrary rule. Mr. Justice Black wrote in

Re Oliver, 333 U.S. 257, 278: .

The right to be heard in open court before one is con-

_ demned is too valuable to be whittled away under the~

guise of er of the court’s authority. 3

The right of free expression is oxiailiy precious, as were .

the rights involved in Johnson v. Virginia, supra; and

Stevens v. Marks, supra. Citizens are entitled to conduct

their affairs on the basis of the law of the Constitution as

‘declared by the highest Court of the land. When they in

good faith disobey the orders of lower tribunals on the —

ground that such orders are inconsistent with the Constitu-

tion, they must run the risk of punishment if they are

wrong.. But, they should not be punished when they are

' - right. Our law has long permitted citizens assumed guilty .

of violating a valid law to go free when subsequent changes

of law effectively repeal the criminal provisions involved.

United States v. Chambers, 291 U:S. 217; Hamm v. Rock

. ry 38

those who are finally determined to have engaged in con-

stitutionally protected activities in the face of an invalid

ex parte injunction.

) Il. :

Petitioners King, Abernathy, Walker and Shuttles-

worth may not be punished for their Constitutionally

Protected statemexts to the press eat the i injune-

tion and Alabama officials.

- The trial court’s judgment of sasialnes seemingly rests

. in part upon the ground that statements and news releases

by some of the petitioners contained derogatory statements.

about the Alabama courts and the injunctive order. How- -

ever, the matter is not entirely clear. There is certainly

no indication that the punishment, or dny part of it, was

imposed solely because of allegedly derogatory statements.

' If petitioners prevail with the arguments in Parts I and II

above, it may be.unnecessary for the Court-to pass upon the

claims made in this part. See Re Sawyer, 360 U.S. 622,

636-638. *

bain, petitioners were found generally guilty of con-

tempt under an accusation relying on the alleged deroga-

tory remarks, and the trial court did eonsider and give

some weight to this evidence. Thus, the conviction must |

be reversed if this or any of the charges is constitutionally —

~ vulnerable. This result is required by the settled principles

enunciated in Thomas v. Collins, 323 U.S. 516, 529; Strom--

berg v. California, 283 U.S. 369, 367-368; Williams v. North

Carolina, 317 U.S, 287, 291-293. “The judgment must be

_ affirmed as to both [charges] or as‘to neither.” Thomas

v. Collins, supra, 323 U.S. at 529.

The role played by the charge of disreapecttel remarks

- requires some explanation. The City’s petition for a show

39°

cause order charged petitioners Walker, Martin L. King,

Shuttlesworth and Abernathy with contempt on the basis

of the April 11, press releaSe (quoted in the opinion be-

low, 11la-12a).** On April 15, Judge Jenkins ordered peti-

tioners Walker, Abernathy, Shuttlesworth and M. L. King,

Jr. to show cause why they should not be punished for

contempt “unless they shall publicly retract or recant the

_ statements made publicly at press conference and mass

meeting on as 11, 1963, or their intention to violate the

injunction . .” (BR. 46).

’ At trial the State put on evidence about the press con-—

ference, introduced the press release, and evidence that

King read the statement and that Shuttlesworth reaffirmed -.

the matter contained in the release (R. 305-310; 482-483). .

The City also proved that when Shuttlesworth was served... :

with the injunction in the middle of the night he said,

“This is a flagrant denial of our constitutional privileges”

(R. 249). This and similar evidence was summarized and

quoted by the Alabama Supreme Court (opinion below, |

infra 10a-15a).

During the trial the oonet said the press conference -

and the two marches were the grounds for the contempt —

charge (R. 360). Petitioners’ counsel,. cognizant of the

demand for a retraction, offered a statement explaining

petitioners’ position (R. 421-423; 486-487); the Court re-

jected it as not “in ~~ way purging the — (R.

423).

18 Tt. was alleged that .the statement “constitutes an open, defiant re-

peated and continuing day by day contempt of this court and contempt

of said injunction, and said contempt is continued and repeated each day

until said respondents shall publicly recant or retract same by announce-

‘ment by said respondents so recanting or retracting same with similar or

equal press, radio and T.V. a as when said statements were made” _

(R. 42). |

eae =

The. trial court opinion noted .that the petition “charges .

the violating of the Court’s order granting the temporary

injunction by their issuance of a press release . ... which

release allegedly contained derogatory statements concern-

' in particular” (la, infra). The court went on to find gen-

erally: that “the actions” (without further specification).

. of petitioners were “obvious acts of contempt, constituting

deliberate and blatant denials of the authority. of this

Court and its order” (4a, infra), and noted that petitioners

- had.given “no apology” (5a, infra). The Alabama Su-

preme Court opinion recites the evidence but does not

specifically rely upon anything other than the two marches

to sustain the judgment. .

‘To the extent that the contempt judgment was based on

the alleged derogation of the court by petitioners’ press

- release and statements, it plainly violates First Amend-

ment rights: Garrison v. Louisiana, 379 U.S. 64; New York.

Times Co. v. Sullivan, 376 U.S. 254; Wood v. Georgia,

370 U.S. 375; Bridges v. California, 314 U.S. 252; Penne-

kamp v. Florida, 328 U.S. 331; Craig v. Harney, 331 USS. :

367; cf. Holt v. Virginia, 381 U.S. 131 (attorney’s criti-

cism) ; Re Sawyer, 360 U.S, 622 (attorney’s criticism). Mr.

‘Justice Brennan wrote in Garrison, supra, 379 U.S. at

. 74-75:

For speech concerning public affairs is more than self-

expression; it is the essence of self-government. The .

First and Fourteenth Amendments embody our “pro-

found national commitment to the principle that debate _

on public issues should be uninhibited, robust, and

wide-open, and that it may well include vehement,

caustic and sometimes unpleasantly sharp attacks on

government and public officials.” New York Times Co.

v. Sullwan, 376 U.S., at 270.

_ Petitioners’ statement (reprinted infra 11a-12a) criti-

cized Alabama officials for perpetuating segregation and

defying the desegregation decisions of this Court and as-

serted that the injunction was an “unjust, undemocratic |

and unconstitutional misuse of the legal process” (11a-12a).

- Neither of the courts below made any findings or conclu-

sions appraising this statement in accord with the stan-

dards set down in Cratg, supra; Bridges, supra; Pen-

nekamp, supra; and Wood, supra. Nor was there any find- _ -

ing, or effort to prove, that, the statements were false or

- malicious under the standards of Garrison, supra.

Petitioners had a right under the First Amendment to

say that the injunction was unconstitutional, unjust and a

_ violation of their rights, and that. Alabama officials were

working to support segregation. They were surely free

to say that the judge was wrong on his law. Craig v.

“Harney, 331 U.S. 367, 375-377. As Mr. Justice Brennan

wrote in Re Sawyer, 360 ‘US. 622, 735 “[d]issenting opin-

ions in our reports are apt to make petitioner’s speech

look like tame stuff) indeed.” The Alab2ma official govern-

mental attifude toward desegregation and civil rights or-

ganizations is a matter of common repute and well known

to this Court. See the history of litigation set forth in

Mr. Justice Harlan’s opinion in N.A.A.C.P. v. Alabama,

377 U.S. 288. Petitioners’ assertion that the law enforce-

ment officials of Birmingham were discriminating against

them made basically the same point that was made by the

Alabama Court of Appeals holding that the administration

of City Code §1159 was discriminatory’ and unconstitu-

tional. Shuttlesworth v. Birmingham, ........ Ala. App. ........ ;

. 180 So.2d 114 (1965).

Iv.

The conviction of petitioners J. W. Hayes and T. L.

Fisher denied them due process because there was no

evidence that they had notice of or beciiiuad of the

terms of the injunction.

The conclusion of the court below that -gtitionare Hayes

and Fisher had knowledge of the ferms of the injunction

is plain error. There is no‘evidence to support that-con-

clusion. There obviously could be no punishable violation

of an order by one who had no knowledge of its prohibi- —

tions. Thomas v. Louisville, 362 U.S. 199; Lanzetta v.

New Jersey, 306 U.S. 451.

Petitioners Hayes and Fisher were not named as par-

ties to the bill of injunction and were not named in the

injunctive order. This was flatly acknowledged in the

City’s petition for a show cause order (R. 38). Both

Hayes -and Fisher were alleged to have violated the in-

junction by participating in the march on Easter Sun-

day, April 14, 1963. They were not served with copies

of the injunctive order until after their alleged violation

of ‘it.?® :

The court below concluded that Rev. Fisher _— of the

injunction based upon his own testimony. The court men-

tions that he had: attended church meetings on Friday and

Saturday, but there was no indication how this had any

probative value with respect to knowledge of the injunction.

The opinion then quotes some of Fisher’s testimony on

19 Hayes acknowledged being served on April 16 (R. 397). Fisher ac-

knowledged receiving the contempt citation but said he never was served

with the injunction (R. 362). The court below stated that Hayes and

Fisher were not served “until.after the Sunday March” (opinion below

' 27a, infra).

20s Qemwiad 0 hve acerimecne

abe shinakiiebi dil —* a

cross examination; we set out in the margin the entire

series of questions and answers.”

This testimony shows that Fisher did not admit knowl-

edge of the terms of the injunction: He specifically denied -

understanding the order. He also denied reading about it

in the newspapers (R. 370-371). Testimony that. he was

told that he probably would go to jail if he marched im-

plies no knowledge\of the terms of the injunction since the.

‘marchers were arxested under §1159 of- the City Code and”

‘not the injunction.\ The State offered no proof of its own

tending to show th t Fisher had ee of the injunc-

tion.

on \

20 “Q: What did you hear about the injunction? What did they

tell you about it? A. I only heard about the injunction. It wasn’t.

interpreted to me.

Q. Was it interpreted to you you. would sovtaty have to go to

jail if you took part in that march or walk? A. Yes, but I didn’t

see any reason I would have to go.

°Q. I understand, but you were not told if you got in that march

you would have to go to jail? A.I was told if I walked on the

streets of Birmingham I would have to go to jail...

Q. I am talking about this Easter Sunday procession. That is

what they were talking about? 4A. That’s right.

Q..And you were told that you would go to jail if you did, or

probably would? -A. I was never. told that.

Q. You understood you would? A. Not for just walking on the

streets of Birmingham.

Q. You mean for walking in this procession you ‘didn’t understand

you would be arrested? A. I didn’t understand I would be arrested

for walking.

Q. You didn’t understand you would be arrested for walking? A.

I can’t understand it yet.

Q. You didn’t understand it then and you don’t understand it now?

’ A. That’s right. .

Q. All right, did anybody say anything to you about who was in-

_eluded in the injunction? A. After I was confined and after the

- contempt I read it.

Q. You have read the contempt? A. That's right, but I haven’t

read the injunction yet.

Q. When did you hear about the injunction? A. When did I hear

about the injunction?

_ Q. Yes, not the contempt but the injunction? A. I think ,I told

the detective that interviewed me that I heard about an injunction,

about an injunction, not any particular injunction” (R. 368-369).

As to petitioner Hayes, the court below concluded he

. had knowledge of the injunction on testimony by Detec-

. tive Harry Jones that he asked Hayes about the injunc-

’ ‘tion, that Hayes‘said he knew of it; and that he was~

marching in the face of it anyway; that he was doing it

for human dignity (R. 315). ‘ Hayes: ~acknowledged that

- he told the detective that he had heard about the injunc-

tion (R. 402), and stated that he had heard about the

injunétion. on Good Friday on TV (R. 402). He said,

“I just heard this news flash that an injunction had been 7

issued against demonstrators in Birmingham” (R. 403).

“He said that he did not inquire about the injunction “be- .

cause I had not been enjoined” (R. 403-404). Thus, there

| was no. évidence. that Hayes had. knowledge of what the

injunction actually prohibited. There was no shdwing that

he understood it or had an opportunity to understand it.

He was exactly correct in thinking that “he” had not been

enjoined for he was not a party to the injuriction suit

and had not been named in the injunction. -

- he finding that Hayes and Fisher clearly had kmowl-:

‘edge of the order in such a way as to understand it, and

that they committed a willful violation of it, rests only

on . speculation. This is no substitute -. for. evidence.

~een ginal sant emanate

. . . > “ ; ; Y . se —

CONCLUSION

It is. respectfully submitted: that the petition. for writ

of certiorari should be granted. |

Respectfully submitted, - ; peice

Jack GREENBERG |

i ' James M. Naserr, IIT

| hehe ‘Norma® C. AmAKER

Leroy D. Cuank 4}

t ~ 10 Columbus’ Circle

. New York, New York 10019

Arrnus D. SHorss

’ 1527 Fifth Avenue North |

' Birmingham, Alabama

Onze. Bruincs.ey, JR se

~ 1630 Fourth Avenue North

Birmingham, Alabama

Attorneys for Petitioners

575 Madison Avenue

New York, New York

Of Counsel

~ out . <ere — —

Ree ener = ete ee Reet Renee eee RS ERNST - ee = Yo. -oe

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