Petitioners, members of the "white supremacist" National States
Rights Party, held a public rally in Princess Anne, Maryland, on
August 6, 1966, at which aggressively and militantly racist
speeches were made to a crowd of both whites and Negroes. It was
announced that the rally would be resumed the next night, August 7.
That day, the respondents, local officials, obtained an
ex
parte restraining order from the Somerset County Circuit
Court, there having been no notice to or informal communication
with petitioners. The order restrained petitioners for 10 days from
holding rallies "which will tend to disturb and endanger the
citizens of the County," and the August 7 rally was not held. After
trial 10 days later, the Circuit Court issued another injunction,
extending the effect of the earlier order for 10 months. The
Maryland Court of Appeals affirmed the 10-day order, but reversed
the 10-month order, holding that "the period of time was
unreasonable."
Held:
1. The case is not moot. The Maryland Court of Appeals' approval
of the 10-day order continues to play a role in the response of
local officials to petitioners' efforts to continue their
activities in the county. Pp.
393 U. S.
178-179.
2. The 10-day restraining order must be set aside because, where
the principles guaranteed by the First Amendment and applicable to
the States by the Fourteenth are involved, there is no place for
such
ex parte order, issued without formal or informal
notice to petitioners, where no showing is made that it is
impossible to serve or notify the opposing parties and to give them
an opportunity to participate in an adversary proceeding. Pp.
393 U. S.
179-185.
247 Md. 126, 230 A.2d 452, reversed.
Page 393 U. S. 176
MR. JUSTICE FORTAS delivered the opinion of the Court.
Petitioners are identified with a "white supremacist"
organization called the National States Rights Party. They held a
public assembly or rally near the courthouse steps in the town of
Princess Anne, the county seat of Somerset County, Maryland, in the
evening of August 6, 1966. The authorities did not attempt to
interfere with the rally. Because of the tense atmosphere which
developed as the meeting progressed, about 60 state policemen were
brought in, including some from a nearby county. They were held in
readiness, but, for tactical reasons, only a few were in evidence
at the scene of the rally.
Petitioners' speeches, amplified by a public address system so
that they could be heard for several blocks, were aggressively and
militantly racist. Their target was primarily Negroes and,
secondarily, Jews. It is sufficient to observe, with the court
below, that the speakers engaged in deliberately derogatory,
insulting, and threatening language, scarcely disguised by
protestations of peaceful purposes, and that listeners might well
have construed their words as both a provocation to the Negroes in
the crowd and an incitement to the whites. The rally continued for
something more than an hour, concluding at about 8:25 p.m. The
crowd listening to the speeches increased from about 50 at the
beginning to about 150, of whom 25% were Negroes.
In the course of the proceedings, it was announced that the
rally would be resumed the following night, August 7. [
Footnote 1]
Page 393 U. S. 177
On that day, the respondents, officials of Princess Anne and of
Somerset County, applied for and obtained a restraining order from
the Circuit Court for Somerset County. The proceedings were
ex
parte, no notice being given to petitioners and, so far as
appears, no effort being made informally to communicate with them,
although this is expressly contemplated under Maryland procedure.
[
Footnote 2] The order
restrained petitioners for 10 days from holding rallies or meetings
in the county "which will tend to disturb and endanger the citizens
of the County." [
Footnote 3] As
a result, the rally scheduled for August 7 was not held. After the
trial which took place 10 days later, an injunction was issued by
the Circuit Court on August 30, in effect extending the restraint
for 10 additional months. The court had before it, in addition to
the testimony of witnesses, tape recordings made by the police of
the August 6 rally.
On appeal, the Maryland Court of Appeals affirmed the 10-day
order, but reversed the 10-month order on the ground that
"the period of time was unreasonable, and that it was arbitrary
to assume that a clear and present
Page 393 U. S. 178
danger of civil disturbance and riot would persist for ten
months."
Petitioners sought review by this Court, under 28 U.S.C. §
1257(3), asserting that the case is not moot and that the decision
of the Maryland Court of Appeals continues to have an adverse
effect upon petitioners' rights. We granted certiorari.
We agree with petitioners that the case is not moot. Since 1966,
petitioners have sought to continue their activities, including the
holding of rallies in Princess Anne and Somerset County, and it
appears that the decision of the Maryland Court of Appeals
continues to play a substantial role in the response of officials
to their activities. [
Footnote
4] In these circumstances, our jurisdiction is not at an
end.
This is the teaching of
Bus Employees v. Missouri,
374 U. S. 74
(1963), which concerned a labor dispute which had led to state
seizure of the business. This Court held that, although the seizure
had been terminated, the case was not moot, because
"the labor dispute [which gave rise to the seizure] remains
unresolved. There thus exists . . . not merely the speculative
possibility of invocation of the [seizure law] in some future labor
dispute, but the presence of an existing unresolved dispute which
continues. . . ."
Id. at
374 U. S.
78.
In
Southern Pacific Terminal Co. v. ICC, 219 U.
S. 498 (1911), this Court declined to hold that the case
was moot although the two-year cease and desist order at
Page 393 U. S. 179
issue had expired. It said:
"The questions involved in the orders of the Interstate Commerce
Commission are usually continuing . . . , and their consideration
ought not to be, as they might be, defeated, by short term orders,
capable of repetition, yet evading review. . . ."
Id. at
219 U. S.
515.
These principles are applicable to the present case. The
underlying question persists and is agitated by the continuing
activities and program of petitioners: whether, by what processes,
and to what extent the authorities of the local governments may
restrict petitioners in their rallies and public meetings.
This conclusion -- that the question is not moot, and ought to
be adjudicated by this Court -- is particularly appropriate in view
of this Court's decision in
Walker v. Birmingham,
388 U. S. 307
(1967). In that case, the Court held that demonstrators who had
proceeded with their protest march in face of the prohibition of an
injunctive order against such a march, could not defend contempt
charges by asserting the unconstitutionality of the injunction. The
proper procedure, it was held, was to seek judicial review of the
injunction, and not to disobey it, no matter how well founded their
doubts might be as to its validity. Petitioners have here pursued
the course indicated by
Walker, and, in view of the
continuing vitality of petitioners' grievance, we cannot say that
their case is moot.
Since the Maryland Court of Appeals reversed the 10-month
injunction of August 30, 1966, we do not consider that order. We
turn to the constitutional problems raised by the 10-day injunctive
order.
The petitioners urge that the injunction constituted a prior
restraint on speech, and that it therefore violated the principles
of the First Amendment which are applicable to the States by virtue
of the Fourteenth Amendment. In any event, they assert, it was not
constitutionally
Page 393 U. S. 180
permissible to restrain petitioners' meetings, because no "clear
and present danger" existed.
Respondents, however, argue that the injunctive order in this
case should not be considered as a "prior restraint," because it
was based upon the events of the preceding evening and was directed
at preventing a continuation of those events, and that, even if
considered a "prior restraint," issuance of the order was justified
by the clear and present danger of riot and disorder deliberately
generated by petitioners.
We need not decide the thorny problem of whether, on the facts
of this case, an injunction against the announced rally could be
justified. The 10-day order here must be set aside because of a
basic infirmity in the procedure by which it was obtained. It was
issued
ex parte, without notice to petitioners and without
any effort, however informal, to invite or permit their
participation in the proceedings. There is a place in our
jurisprudence for
ex parte issuance, without notice, of
temporary restraining orders of short duration; but there is no
place within the area of basic freedoms guaranteed by the First
Amendment for such orders where no showing is made that it is
impossible to serve or to notify the opposing parties and to give
them an opportunity to participate.
We do not here challenge the principle that there are special,
limited circumstances in which speech is so interlaced with
burgeoning violence that it is not protected by the broad guarantee
of the First Amendment. In
Cantwell v. Connecticut,
310 U. S. 296, at
310 U. S. 308
(1940), this Court said that "[n]o one would have the hardihood to
suggest that the principle of freedom of speech sanctions
incitement to riot."
See also Chaplinsky v. New Hampshire,
315 U. S. 568,
315 U. S. 572
(1942);
Milk Wagon Drivers Union v. Meadowmoor Dairies,
312 U. S. 287,
312 U. S. 294
(1941). Ordinarily, the State's constitutionally permissible
interests are adequately served by criminal
Page 393 U. S. 181
penalties imposed after freedom to speak has been so grossly
abused that its immunity is breached. The impact and consequences
of subsequent punishment for such abuse are materially different
from those of prior restraint. Prior restraint upon speech
suppresses the precise freedom which the First Amendment sought to
protect against abridgment. [
Footnote 5]
The Court has emphasized that "[a] system of prior restraints of
expression comes to this Court bearing a heavy presumption against
its constitutional validity."
Bantam Books v. Sullivan,
372 U. S. 58,
372 U. S. 70
(1963);
Freedman v. Maryland, 380 U. S.
51,
380 U. S. 57
(1965). And even where this presumption might otherwise be
overcome, the Court has insisted upon careful procedural
provisions, designed to assure the fullest presentation and
consideration of the matter which the circumstances permit. As the
Court said in
Freedman v. Maryland, supra, at
380 U. S. 58, a
noncriminal process of prior restraints upon expression
"avoids constitutional infirmity only if it takes place under
procedural safeguards designed to obviate the dangers of a
censorship system."
Measured against these standards, it is clear that the 10-day
restraining order in the present case, issued
ex parte,
without formal or informal notice to the petitioners or any effort
to advise them of the proceeding, cannot be sustained.
Cf.
Marcus v. Search Warrant, 367 U. S. 717,
367 U. S. 731
(1961); [
Footnote 6]
A Quantity of Books v.
Kansas,
Page 393 U. S. 182
378 U. S. 205
(1964). [
Footnote 7] In the
latter case, this Court disapproved a seizure of books under a
Kansas statute on the basis of
ex parte scrutiny by a
judge. The Court held that the statute was unconstitutional. MR.
JUSTICE BRENNAN, speaking for a plurality of the Court, condemned
the statute for "not first affording [the seller of the books] an
adversary hearing."
Id. at
378 U. S. 211.
In the present case, the reasons for insisting upon an opportunity
for hearing and notice, at least in the absence of a showing that
reasonable efforts to notify the adverse parties were unsuccessful,
are even more compelling than in cases involving allegedly obscene
books. The present case involves a rally and "political" speech in
which the element of timeliness may be important. As MR. JUSTICE
HARLAN, dissenting in
A Quantity of Books v. Kansas,
pointed out, speaking of "political and social expression":
"It is vital to the operation of democratic government that the
citizens have facts and ideas on important issues before them. A
delay of even a day or two may be of crucial importance in some
instances. On the other hand, the subject of sex is of constant but
rarely particularly topical interest."
378 U.S. at
378 U. S.
224.
In the present case, the record discloses no reason why
petitioners were not notified of the application for injunction.
They were apparently present in Princess Anne. They had held a
rally there on the night preceding the application for and issuance
of the injunction. They were scheduled to have another rally on the
very
Page 393 U. S. 183
evening of the day when the injunction was issued. [
Footnote 8] And some of them were
actually served with the writ of injunction at 6:10 that evening.
In these circumstances, there is no justification for the
ex
parte character of the proceedings in the sensitive area of
First Amendment rights.
The value of a judicial proceeding, as against self-help by the
police, is substantially diluted where the process is
ex
parte, because the Court does not have available the
fundamental instrument for judicial judgment: an adversary
proceeding in which both parties may participate. The facts in any
case involving a public demonstration are difficult to ascertain,
and even more difficult to evaluate. Judgment as to whether the
facts justify the use of the drastic power of injunction
necessarily turns on subtle and controversial considerations, and
upon a delicate assessment of the particular situation in light of
legal standards which are inescapably imprecise. [
Footnote 9] In the absence of evidence and
argument offered by both sides and of their participation in the
formulation of value judgments, there is insufficient assurance of
the balanced analysis and careful conclusions which are essential
in the area of First Amendment adjudication. [
Footnote 10]
The same is true of the fashioning of the order. An order issued
in the area of First Amendment rights must be couched in the
narrowest terms that will accomplish the pinpointed objective
permitted by constitutional mandate and the essential needs of the
public order. In this sensitive field, the State may not employ
Page 393 U. S. 184
"means that broadly stifle fundamental personal liberties when
the end can be more narrowly achieved."
Shelton v. Tucker,
364 U. S. 479,
364 U. S. 488
(1960). In other words, the order must be tailored as precisely as
possible to the exact needs of the case. The participation of both
sides is necessary for this purpose. [
Footnote 11] Certainly, the failure to invite
participation of the party seeking to exercise First Amendment
rights reduces the possibility of a narrowly drawn order, and
substantially imperils the protection which the Amendment seeks to
assure.
Finally, respondents urge that the failure to give notice and an
opportunity for hearing should not be considered to invalidate the
order because, under Maryland procedure, petitioners might have
obtained a hearing on not more than two days' notice. Maryland Rule
of Procedure BB72. But this procedural right does not overcome the
infirmity in the absence of a showing of justification for the
ex parte nature of the proceedings. The issuance of an
injunction which aborts a scheduled rally or public meeting, even
if the restraint is of short duration, is a matter of importance
and consequence in view of the First Amendment's imperative. The
denial of a basic procedural right in these circumstances is not
excused by the availability of post-issuance procedure which could
not possibly serve to rescue the August 7 meeting, but, at best,
could have shortened the period in which petitioners were prevented
from holding a rally.
We need not here decide that it is impossible for circumstances
to arise in which the issuance of an
ex parte restraining
order for a minimum period could be justified
Page 393 U. S. 185
because of the unavailability of the adverse parties or their
counsel, or perhaps for other reasons. In the present case, it is
clear that the failure to give notice, formal or informal, and to
provide an opportunity for an adversary proceeding before the
holding of the rally was restrained, is incompatible with the First
Amendment. Because we reverse the judgment below on this basis, we
need not and do not decide whether the facts in this case provided
a constitutionally permissible basis for temporarily enjoining the
holding of the August 7 rally.
Reversed.
MR. JUSTICE BLACK concurs in the result.
MR. JUSTICE DOUGLAS, while joining the opinion of the Court,
adheres to his dissent in
Kingsley Books, Inc. v. Brown,
354 U. S. 436,
354 U. S.
446-447, and to his concurring opinion in
Freedman
v. Maryland, 380 U. S. 51,
380 U. S.
61-62.
[
Footnote 1]
Petitioner Norton said,
"I want you to . . . be back here at the same place tomorrow
night, bring every friend vou have. . . . We're going to take it
easy tonight . . ."
and
"You white folks bring your friends, come back tomorrow night. .
. . Come on back tomorrow night, let's raise a little bit of hell
for the white race."
[
Footnote 2]
Maryland Rule of Procedure BB72.
[
Footnote 3]
The text of the Writ of Injunction is as follows:
"We command and strictly enjoin and prohibit you the said Joseph
Carroll, Richard Norton, J. B. Stoner, Connie Lynch, Robert Lyons,
William Brailsford and National States Rights Party from holding
rallies or meetings in Somerset County which will tend to disturb
and endanger the citizens of the County and to enjoin you, the said
defendants, from using and operating or causing to be operated
within the County any devices or apparatus for the application
[
sic] of the human voice or records from any radio,
phonograph or other sound making or producing device thereby
disturbing the tranquility of the populace of the County, until the
matter can be heard and determined in equity, or for a period of
ten days from the date hereof."
"Hereof, fail not, as you will act to the contrary at your
peril."
[
Footnote 4]
Petitioners recite that they were denied the right to hold a
rally in Princess Anne on July 17, 1967, and that the letter of
rejection relied upon the Court of Appeals' decision. They
acknowledge that, on July 25, they were authorized to hold rallies
in Princess Anne on July 28, 29, and 30, 1967; but they appear to
complain that the permit stipulated that the sound should not be
amplified for more than 250 feet, and that "you will not be
permitted to use racial epithets or to make slanderous remarks
about the members of any race or ethnic group."
[
Footnote 5]
The elimination of prior restraints was a "leading purpose" in
the adoption of the First Amendment.
See Lovell v.
Griffin, 303 U. S. 444, at
303 U. S.
451-452 (1938).
[
Footnote 6]
Marcus rejected the contention that
Kingsley Books,
Inc. v. Brown, 354 U. S. 436
(1957), supported
"the proposition that the State may impose the extensive
restraints imposed here on the distribution of these publications
prior to an adversary proceeding on the issue of obscenity."
367 U.S. at
367 U. S. 736.
In
Kingsley, a New York statute authorizing an injunction
pendente lite against the distribution of obscene books
was upheld. By statute, the person enjoined could get a hearing
"within one day after joinder of issue." The New York courts have
subsequently held that no
ex parte injunction may be
issued under the statute.
Tenney v. Liberty News Distribs.,
Inc., 13 App.Div.2d 770, 215 N.Y.S.2d 663 (1961).
[
Footnote 7]
Compare the considerations leading to the
Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §§ 101-115.
See F. Frankfurter N. Greene, The Labor Injunction 200-205
(1930).
[
Footnote 8]
The petition for the temporary injunction recited that Carroll
and the others against whom the injunction was sought "are
presently in Somerset or Wicomico Counties of the State of
Maryland."
[
Footnote 9]
Cf. Frankfurter & Greene, The Labor Injunction,
supra.
[
Footnote 10]
There is a danger in relying exclusively on the version of
events and dangers presented by prosecuting officials, because of
their special interest.
Freedman v. Maryland, supra, at
380 U. S.
57-58.
[
Footnote 11]
Cf. Williams v. Wallace, 240 F.
Supp. 100 (D.C.M.D.Ala.1965). There, District Judge Johnson
initially refused to issue an injunction
ex parte against
the absent state officials. Then, after a hearing at which the
plaintiffs submitted a detailed plan for their proposed
Selma-Montgomery march, he enjoined the State from interfering with
the march as proposed in the plan.