On April 10, 1963, a temporary injunction was issued by an
Alabama circuit court judge, pursuant to a bill of complaint filed
by Birmingham officials, enjoining petitioners from participating
in or encouraging mass street parades without a permit as required
by city ordinance. The bill and accompanying affidavits stated that
demonstrations, parades, and picketing had been engaged in by
petitioners for the preceding seven days, and were expected to
continue. Some of the petitioners, who had been served with copies
of the writ the next morning, held a press conference and announced
their intention to disobey the injunction. No permit to parade was
then or thereafter requested, but parades were held on April 12,
Good Friday, and April 14, Easter Sunday. At a contempt hearing,
petitioners sought to attack the constitutionality of the
injunction on the ground that it was vague, overbroad, and
restrained free speech. They also sought to attack the parade
ordinance on a similar ground and on the basis that it had been
administered in an arbitrary and discriminatory manner. The circuit
judge refused to consider these contentions, stating that there had
been no motion to dissolve the injunction or any effort to comply
with it by applying for a parade permit. The court held that the
only issues were whether it had jurisdiction to issue the
injunction and whether petitioners had knowingly violated it.
Petitioners were found guilty, and the Alabama Supreme Court
affirmed.
Held: Petitioners could not bypass orderly judicial
review of the temporary injunction before disobeying it.
Howat
v. Kansas, 258 U. S. 181. Pp.
388 U. S.
314-320.
(a) The state court that issued the injunction had, as a court
of equity, jurisdiction over petitioners and over the subject
matter of the controversy. P.
388 U. S.
315.
(b) The injunction was consistent with the strong interest of
the city government in regulating the use of its streets and other
public places. Pp.
388 U. S.
315-316.
(c) While the generality of language in the parade ordinance
would raise substantial constitutional issues, petitioners did not
apply to the courts for an authoritative construction which
might
Page 388 U. S. 308
have given the licensing authority granted in the ordinance a
narrow and precise scope. As in
Cox v. New Hampshire,
312 U. S. 569, and
Poulos v. New Hampshire, 345 U. S. 395, it
cannot be assumed that the ordinance is void on its face. Pp.
388 U. S.
316-317.
(d) The breadth and vagueness of the injunction itself would be
subject to constitutional question, but the way to raise that
question was to apply to the state courts to have the injunction
modified or dissolved. P.
388 U. S.
317.
(e) Even if the parade ordinance on which the injunction was
based had been previously administered in an arbitrary and
discriminatory manner, it does not follow that the ordinance is
void on its face. Petitioners did not apply for a parade permit
after issuance of the injunction, the claimed arbitrary refusal of
which would have been considered by the state court upon a motion
to dissolve the injunction. Pp.
388 U. S.
317-318.
(f) The rule of law which the Alabama courts relied on was
firmly established by precedents which put petitioners on notice
that they could not bypass orderly judicial review of the
injunction before disobeying it. P.
388 U. S.
319.
279 Ala. 53,
181
So. 2d 493, affirmed.
MR. JUSTICE STEWART delivered the opinion of the Court.
On Wednesday, April 10, 1963, officials of Birmingham, Alabama,
filed a bill of complaint in a state circuit court asking for
injunctive relief against 139 individuals and
Page 388 U. S. 309
two organizations. The bill and accompanying affidavits stated
that, during the preceding seven days:
"[R]espondents [had] sponsored and/or participated in and/or
conspired to commit and/or to encourage and/or to participate in
certain movements, plans or projects commonly called 'sit-in'
demonstrations, 'kneel-in' demonstrations, mass street parades,
trespasses on private property after being warned to leave the
premises by the owners of said property, congregating in mobs upon
the public streets and other public places, unlawfully picketing
private places of business in the City of Birmingham, Alabama;
violation of numerous ordinances and statutes of the City of
Birmingham and State of Alabama. . . ."
It was alleged that this conduct was "calculated to provoke
breaches of the peace," "threaten[ed] the safety, peace and
tranquility of the City," and placed "an undue burden and strain
upon the manpower of the Police Department."
The bill stated that these infractions of the law were expected
to continue, and would "lead to further imminent danger to the
lives, safety, peace, tranquility and general welfare of the people
of the City of Birmingham," and that the "remedy by law [was]
inadequate." The circuit judge granted a temporary injunction as
prayed in the bill, enjoining the petitioners from, among other
things, participating in or encouraging mass street parades or mass
processions without a permit as required by a Birmingham ordinance.
[
Footnote 1]
Page 388 U. S. 310
Five of the eight petitioners were served with copies of the
writ early the next morning. Several hours later, four of them held
a press conference. There a statement was distributed declaring
their intention to disobey the injunction because it was "raw
tyranny under the guise of maintaining law and order." [
Footnote 2] At this press conference,
one of the petitioners stated:
"That they had respect for the Federal Courts, or Federal
Injunctions, but, in the past, the State Courts had favored local
law enforcement, and if the police couldn't handle it, the mob
would."
That night, a meeting took place at which one of the petitioners
announced that, "[i]njunction or no injunction we are going to
march tomorrow." The next afternoon, Good Friday, a large crowd
gathered in the vicinity of Sixteenth Street and Sixth Avenue North
in Birmingham. A group of about 50 or 60 proceeded to parade along
the sidewalk while a crowd of 1,000 to 1,500 onlookers stood by,
"clapping, and hollering, and [w]hooping."
Page 388 U. S. 311
Some of the crowd followed the marchers and spilled out into the
street. At least three of the petitioners participated in this
march.
Meetings sponsored by some of the petitioners were held that
night and the following night, where calls for volunteers to "walk"
and go to jail were made. On Easter Sunday, April 14, a crowd of
between 1,500 and 2,000 people congregated in the mid-afternoon in
the vicinity of Seventh Avenue and Eleventh Street North in
Birmingham. One of the petitioners was seen organizing members of
the crowd in formation. A group of about 50, headed by three other
petitioners, started down the sidewalk two abreast. At least one
other petitioner was among the marchers. Some 300 or 400 people
from among the onlookers followed in a crowd that occupied the
entire width of the street and overflowed onto the sidewalks.
Violence occurred. Members of the crowd threw rocks that injured a
newspaperman and damaged a police motorcycle.
The next day, the city officials who had requested the
injunction applied to the state circuit court for an order to show
cause why the petitioners should not be held in contempt for
violating it. At the ensuing hearing, the petitioners sought to
attack the constitutionality of the injunction on the ground that
it was vague and overbroad, and restrained free speech. They also
sought to attack the Birmingham parade ordinance upon similar
grounds, and upon the further ground that the ordinance had
previously been administered in an arbitrary and discriminatory
manner.
The circuit judge refused to consider any of these contentions,
pointing out that there had been neither a motion to dissolve the
injunction nor an effort to comply with it by applying for a permit
from the city commission before engaging in the Good Friday and
Easter Sunday parades. Consequently, the court held that the
Page 388 U. S. 312
only issues before it were whether it had jurisdiction to issue
the temporary injunction, and whether thereafter the petitioners
had knowingly violated it. Upon these issues, the court found
against the petitioners and imposed upon each of them a sentence of
five days in jail and a $50 fine, in accord with an Alabama
statute. [
Footnote 3] The
Supreme Court of Alabama affirmed. [
Footnote 4] That court, too, declined to consider the
petitioners' constitutional
Page 388 U. S. 313
attacks upon the injunction and the underlying Birmingham parade
ordinance:
"It is to be remembered that petitioners are charged with
violating a temporary injunction. We are not reviewing a denial of
a motion to dissolve or discharge a temporary injunction.
Petitioners did not file any motion to vacate the temporary
injunction until after the Friday and Sunday parades. Instead,
petitioners deliberately defied the order of the court and did
engage in and incite others to engage in mass street parades
without a permit."
"
* * * *"
"We hold that the circuit court had the duty and authority, in
the first instance, to determine the validity of the ordinance,
and, until the decision of the circuit 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.
Howat v. State of Kansas,
258 U. S.
181."
279 Ala. 53, 60, 62-63,
181
So. 2d 493, 500, 502.
Howat v. Kansas, 258 U. S. 181, was
decided by this Court almost 50 years ago. That was a case in which
people had been punished by a Kansas trial court for refusing to
obey an anti-strike injunction issued under the state industrial
relations act. They had claimed a right to disobey the court's
order upon the ground that the state statute and the injunction
based upon it were invalid under the Federal Constitution. The
Supreme Court of Kansas had affirmed the judgment, holding that the
trial court
"had general power to issue injunctions in equity and that, even
if its exercise of the power was erroneous, the injunction was not
void, and the defendants were precluded
Page 388 U. S. 314
from attacking it in this collateral proceeding . . . , that, if
the injunction was erroneous, jurisdiction was not thereby
forfeited, that the error was subject to correction only by the
ordinary method of appeal, and disobedience to the order
constituted contempt."
258 U.S. at
258 U. S.
189.
This Court, in dismissing the writ of error, not only
unanimously accepted but fully approved the validity of the rule of
state law upon which the judgment of the Kansas court was
grounded:
"An injunction duly issuing out of a court of general
jurisdiction with equity powers upon pleadings properly invoking
its action, and served upon persons made parties therein and within
the jurisdiction, must be obeyed by them however erroneous the
action of the court may be, even if the error be in the assumption
of the validity of a seeming but void law going to the merits of
the case. It is for the court of first instance to determine the
question of the validity of the law, and until its decision is
reversed for error by orderly review, either by itself or by a
higher court, its orders based on its decision are to be respected,
and disobedience of them is contempt of its lawful authority, to be
punished."
258 U.S. at
258 U. S.
189-190.
The rule of state law accepted and approved in
Howat v.
Kansas is consistent with the rule of law followed by the
federal courts. [
Footnote
5]
Page 388 U. S. 315
In the present case, however, we are asked to hold that this
rule of law, upon which the Alabama courts relied, was
constitutionally impermissible. We are asked to say that the
Constitution compelled Alabama to allow the petitioners to violate
this injunction, to organize and engage in these mass street
parades and demonstrations, without any previous effort on their
part to have the injunction dissolved or modified, or any attempt
to secure a parade permit in accordance with its terms. Whatever
the limits of
Howat v. Kansas, [
Footnote 6] we cannot accept the petitioners'
contentions in the circumstances of this case.
Without question, the state court that issued the injunction
had, as a court of equity, jurisdiction over the petitioners and
over the subject matter of the controversy. [
Footnote 7] And this is not a case where the
injunction was transparently invalid or had only a frivolous
pretense to validity. We have consistently recognized the strong
interest of state and local governments in regulating the use of
their streets and other public places.
Cox v. New
Hampshire, 312 U. S. 569;
Kovacs v. Cooper, 336 U. S. 77;
Poulos v. New Hampshire, 345 U. S. 395;
Adderley
Page 388 U. S. 316
v. Florida, 385 U. S. 39. When
protest takes the form of mass demonstrations, parades, or
picketing on public streets and sidewalks, the free passage of
traffic and the prevention of public disorder and violence become
important objects of legitimate state concern. As the Court stated,
in
Cox v. Louisiana,
"We emphatically reject the notion . . . that the First and
Fourteenth Amendments afford the same kind of freedom to those who
would communicate ideas by conduct such as patrolling, marching,
and picketing on streets and highways as these amendments afford to
those who communicate ideas by pure speech."
379 U. S. 379 U.S.
536,
379 U. S. 555.
And as a unanimous Court stated in
Cox v. New
Hampshire:
"Civil liberties, as guaranteed by the Constitution, imply the
existence of an organized society maintaining public order without
which liberty itself would be lost in the excesses of unrestrained
abuses. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use
of public highways has never been regarded as inconsistent with
civil liberties, but rather as one of the means of safeguarding the
good order upon which they ultimately depend."
312 U.S. at
312 U. S.
574.
The generality of the language contained in the Birmingham
parade ordinance upon which the injunction was based would
unquestionably raise substantial constitutional issues concerning
some of its provisions. [
Footnote
8]
Schneider v. State, 308 U.
S. 147;
Saia v. New York, 334 U.
S. 558;
Kunz v. New York, 340 U.
S. 290. The petitioners, however, did not even attempt
to apply to the Alabama courts for an authoritative construction of
the ordinance. Had they done so, those courts might have given the
licensing authority granted in the ordinance
Page 388 U. S. 317
a narrow and precise scope, as did the New Hampshire courts in
Cox v. New Hampshire and
Poulos v. New Hampshire, both
supra. Cf. Shuttlesworth v. Birmingham, 382 U. S.
87,
382 U. S. 91;
City of Darlington v. Stanley, 239 S.C. 139,
122 S.E.2d
207. Here, just as in
Cox and
Poulos, it
could not be assumed that this ordinance was void on its face.
The breadth and vagueness of the injunction itself would also
unquestionably be subject to substantial constitutional question.
But the way to raise that question was to apply to the Alabama
courts to have the injunction modified or dissolved. The injunction
in all events clearly prohibited mass parading without a permit,
and the evidence shows that the petitioners fully understood that
prohibition when they violated it.
The petitioners also claim that they were free to disobey the
injunction because the parade ordinance on which it was based had
been administered in the past in an arbitrary and discriminatory
fashion. In support of this claim, they sought to introduce
evidence that, a few days before the injunction issued, requests
for permits to picket had been made to a member of the city
commission. One request had been rudely rebuffed, [
Footnote 9] and this same official had later
made clear that he
Page 388 U. S. 318
was without power to grant the permit alone, since the issuance
of such permits was the responsibility of the entire city
commission. [
Footnote 10]
Assuming the truth of this proffered evidence, it does not follow
that the parade ordinance was void on its face. The petitioners,
moreover, did not apply for a permit either to the commission
itself or to any commissioner after the injunction issued. Had they
done so, and had the permit been refused, it is clear that their
claim of arbitrary or discriminatory administration of the
ordinance would have been considered by the state circuit court
upon a motion to dissolve the injunction. [
Footnote 11]
This case would arise in quite a different constitutional
posture if the petitioners, before disobeying the injunction, had
challenged it in the Alabama courts, and had been met with delay or
frustration of their constitutional claims. But there is no showing
that such would have been the fate of a timely motion to modify or
dissolve the injunction. There was an interim of two
Page 388 U. S. 319
days between the issuance of the injunction and the Good Friday
march. The petitioners give absolutely no explanation of why they
did not make some application to the state court during that
period. The injunction had issued
ex parte; if the court
had been presented with the petitioners' contentions, it might well
have dissolved or at least modified its order in some respects. If
it had not done so, Alabama procedure would have provided for an
expedited process of appellate review. [
Footnote 12] It cannot be presumed that the Alabama
courts would have ignored the petitioners' constitutional claims.
Indeed, these contentions were accepted in another case by an
Alabama appellate court that struck down on direct review the
conviction under this very ordinance of one of these same
petitioners. [
Footnote
13]
The rule of law upon which the Alabama courts relied in this
case was one firmly established by previous precedents. We do not
deal here, therefore, with a situation where a state court has
followed a regular past practice of entertaining claims in a given
procedural mode, and without notice has abandoned that practice to
the detriment of a litigant who finds his claim foreclosed by a
novel procedural bar.
Barr v. City of Columbia,
378 U. S. 146.
This is not a case where a procedural requirement has been sprung
upon an unwary litigant when prior practice did not give him fair
notice of its existence.
Wright v. Georgia, 373 U.
S. 284,
373 U. S.
291.
The Alabama Supreme Court has apparently never in any criminal
contempt case entertained a claim of nonjurisdictional error.
[
Footnote 14] In
Fields
v. City of Fairfield, 273
Page 388 U. S. 320
Ala 588,
143 So. 2d
177, [
Footnote 15]
decided just three years before the present case, the defendants,
members of a "White Supremacy" organization who had disobeyed an
injunction, sought to challenge the constitutional validity of a
permit ordinance upon which the injunction was based. The Supreme
Court of Alabama, finding that the trial court had jurisdiction,
applied the same rule of law which was followed here:
"As a general rule, an unconstitutional statute is an absolute
nullity, and may not form the basis of any legal right or legal
proceedings, yet, until its unconstitutionality has been judicially
declared in appropriate proceedings, no person charged with its
observance under an order or decree may disregard or violate the
order or the decree with immunity from a charge of contempt of
court, and he may not raise the question of its unconstitutionality
in collateral proceedings on appeal from a judgment of conviction
for contempt of the order or decree. . . ."
273 Ala., at 590, 143 So. 2d at 180.
These precedents clearly put the petitioners on notice that they
could not bypass orderly judicial review of the injunction before
disobeying it. Any claim that they were entrapped or misled is
wholly unfounded, a conclusion confirmed by evidence in the record
showing that, when the petitioners deliberately violated the
injunction, they expected to go to jail.
The rule of law that Alabama followed in this case reflects a
belief that, in the fair administration of justice, no man can be
judge in his own case, however exalted
Page 388 U. S. 321
his station, however righteous his motives, and irrespective of
his race, color, politics, or religion. [
Footnote 16] This Court cannot hold that the
petitioners were constitutionally free to ignore all the procedures
of the law and carry their battle to the streets. One may
sympathize with the petitioners' impatient commitment to their
cause. But respect for judicial process is a small price to pay for
the civilizing hand of law, which alone can give abiding meaning to
constitutional freedom.
Affirmed.
|
388
U.S. 307appa|
APPENDIX A TO OPINION OF THE COURT
"
TEMPORARY INJUNCTION -- April 10, 1963"
"A verified Bill of Complaint in the above styled cause having
been presented to me on this the 10th of April 1963 at 9:00 O'Clock
P.M. in the City of Birmingham, Alabama."
"Upon consideration of said verified Bill of Complaint and the
affidavits of Captain G. V. Evans and Captain George Wall, and the
public welfare, peace and safety requiring it, it is hereby
considered, ordered, adjudged and decreed that a peremptory or a
temporary writ of injunction be and the same is hereby issued in
accordance with the prayer of said petition. "
Page 388 U. S. 322
"It is therefore ordered, adjudged and decreed by the Court
that, upon the complainant entering into a good and sufficient bond
conditioned as provided by law, in the sum of Twenty five Hundred
Dollars ($2500.00), same to be approved by the Register of this
Court that the Register issue a peremptory or temporary writ of
injunction that the respondents and the others identified in said
Bill of Complaint, their agents, members, employees, servants,
followers, attorneys, successors and all other persons in active
concert or participation with the respondents and all persons
having notice of said order from continuing any act hereinabove
designated particularly: engaging in, sponsoring, inciting or
encouraging mass street parades or mass processions or like
demonstrations 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, congregating on the street or
public places into mobs, and unlawfully picketing business
establishments or public 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, unlawful 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 Statutes 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."
"W. A. Jenkins, Jr., As Circuit Judge of the Tenth"
"Judicial Circuit of Alabama, In Equity Sitting."
Page 388 U. S. 323
|
388
U.S. 307appb|
APPENDIX B TO OPINION OF THE COURT
"In our struggle for freedom, we have anchored our faith and
hope in the rightness of the Constitution and the moral laws of the
universe."
"Again and again the Federal judiciary has made it clear that
the priviledges [
sic] guaranteed under the First and the
Fourteenth Amendments are to [
sic] sacred to be trampled
upon by the machinery of state government and police power. In the
past, we have abided by Federal injunctions out of respect for the
forthright and consistent leadership that the Federal judiciary has
given in establishing the principle of integration as the law of
the land."
"However we are now confronted with recalcitrant forces in the
Deep South that will use the courts to perpetuate the unjust and
illegal system of racial separation."
"Alabama has made clear its determination to defy the law of the
land. Most of its public officials, its legislative body and many
of its law enforcement agents have openly defied the desegregation
decision of the Supreme Court. We would feel morally and legal
[
sic] responsible to obey the injunction if the courts of
Alabama applied equal justice to all of its citizens. This would be
sameness made legal. However the ussuance [
sic] of this
injunction is a blatant of difference made legal."
"Southern law enforcement agencies have demonstrated now and
again that they will utilize the force of law to misuse the
judicial process."
"This is raw tyranny under the guise of maintaining law and
order. We cannot in all good conscience obey such an injunction,
which is an unjust, undemocratic and unconstitutional misuse of the
legal process."
"We do this not out of any desrespect [
sic] for the law
but out of the highest respect for
the law. This is not an
attempt to evade or defy the law or engage in
Page 388 U. S. 324
chaotic anarchy. Just as in all good conscience we cannot obey
unjust laws, neither can we respect the unjust use of the
courts."
"We believe in a system of law based on justice and morality.
Out of our great love for the Constitution 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."
[
Footnote 1]
The text of the injunction is reproduced as
388
U.S. 307appa|>Appendix A to this opinion.
The Birmingham parade ordinance, § 1159 of the Birmingham City
Code, provides that:
"It shall be unlawful to organize or hold, or to assist in
organizing or holding, or to take part or participate in, any
parade or procession or other public demonstration on the streets
or other public ways of the city, unless a permit therefor has been
secured from the commission."
"To secure such permit, written application shall be made to the
commission, setting forth the probable number 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,
prescribing the streets or other public ways which may be used
therefor, unless in its judgment the public welfare, peace, safety,
health, decency, good order, morals or convenience require that it
be refused. It shall be unlawful to use for such purposes any other
streets or public ways than those set out in said permit."
"The two preceding paragraphs, however, shall not apply to
funeral processions."
[
Footnote 2]
The full statement is reproduced as
388
U.S. 307appb|>Appendix B to this opinion.
[
Footnote 3]
"The circuit court, or judges thereof when exercising equity
jurisdiction and powers may punish for contempt by fine not
exceeding fifty dollars, and by imprisonment, not exceeding five
days, one or both."
Ala.Code, Tit. 13, § 143.
See also id. §§ 4-5, 126.
The circuit court dismissed the contempt proceedings against
several individuals on grounds of insufficient evidence.
Those petitioners who participated in the April 11 press
conference contend that the circuit court improperly relied on this
incident in finding them guilty of contempt, claiming that they
were engaged in constitutionally protected free speech. We find no
indication that the court considered the incident for any purpose
other than the legitimate one of establishing that the
participating petitioners' subsequent violation of the injunction
by parading without a permit was willful and deliberate.
[
Footnote 4]
The Alabama Supreme Court quashed the conviction of one
defendant because of insufficient proof that he knew of the
injunction before violating it, and the convictions of two others
because there was no showing that they had disobeyed the order. 279
Ala. 53, 64,
181
So. 2d 493, 504.
Two of the petitioners here claim that there was a complete
dearth of evidence to establish that they had knowledge of the
injunction before violating it, and that their convictions are
therefore constitutionally defective under the principle of
Thompson v. Louisville, 362 U. S. 199. The
Alabama Supreme Court's recitation of the evidence on this issue,
which is supported by the record, plainly shows this claim is
without foundation. It is, of course, a familiar doctrine that
proof of the elements of criminal contempt may be established by
circumstantial evidence.
Bullock v. United States, 265
F.2d 683,
cert. denied sub nom. Kasper v. United States,
360 U.S. 932.
[
Footnote 5]
Brougham v. Oceanic Steam Navigation Co., 205 F. 857;
Trickett v. Kaw Valley Drainage Dist., 25 F.2d 851,
cert. denied, 278 U.S. 624;
O'Hearne v. United
States, 62 App.D.C. 285, 66 F.2d 933,
cert. denied,
290 U.S. 683;
Locke v. United States, 75 F.2d 157,
cert. denied, 295 U.S. 733;
McCann v. New York Stock
Exchange, 80 F.2d 211,
cert. denied sub nom. McCann v.
Leibell, 299 U.S. 603;
McLeod v. Majors, 102 F.2d
128;
Kasper v. Brittain, 245 F.2d 92,
cert.
denied, 355 U.S. 834.
See also Ex parte Rowland,
104 U. S. 604;
In re Ayers, 123 U. S. 443;
In re Burrus, 136 U. S. 586;
United States v. Shipp, 203 U. S. 563;
United States v. Mine Workers, 330 U.
S. 258.
[
Footnote 6]
In
In re Green, 369 U. S. 689, the
petitioner was convicted of criminal contempt for violating a labor
injunction issued by an Ohio court. Relying on the preemptive
command of the federal labor law, the Court held that the state
courts were required to hear Green's claim that the state court was
without jurisdiction to issue the injunction. The
petitioner in
Green, unlike the petitioners here, had
attempted to challenge the validity of the injunction
before violating it by promptly applying to the issuing
court for an order vacating the injunction. The petitioner in
Green had further offered to prove that the court issuing
the injunction had agreed to its violation as an appropriate means
of testing its validity.
[
Footnote 7]
Ala.Const., Art. 6, § 144; Ala.Code, Tit. 7, §§ 1038-1039.
[
Footnote 8]
See n1,
supra.
[
Footnote 9]
Mrs. Lola Hendricks, not a petitioner in this case, testified
that, on April 3:
"I went to Mr. Connor's office, the Commissioner's office at the
City Hall Building. We went up and Commissioner Connor met us at
the door. He asked, 'May I help you?' I told him, 'Yes, sir, we
came up to apply or see about getting a permit for picketing,
parading, demonstrating.'"
"
* * * *"
"I asked Commissioner Connor for the permit, and asked if he
could issue the permit, or other persons who would refer me to,
persons who would issue a permit. He said, 'No, you will not get a
permit in Birmingham, Alabama to picket. I will picket you over to
the City Jail,' and he repeated that twice."
[
Footnote 10]
Commissioner Connor sent the following telegram to one of the
petitioners on April 5:
"Under the provisions of the city code of the City of
Birmingham, a permit to picket as requested by you cannot be
granted by me individually but is the responsiboity [
sic]
of the entire commission. I insist that you and your people do not
start any picketing on the streets in Birmingham, Alabama."
"Eugene 'Bull' Connor, Commissioner of Public Safety."
[
Footnote 11]
In its opinion, that court stated:
"The legal and orderly processes of the Court would require the
defendants to attack the unreasonable denial of such permit by the
Commission of the City of Birmingham through means of a motion to
dissolve the injunction, at which time this Court would have the
opportunity to pass upon the question of whether or not a
compliance with the ordinance was attempted and whether or not an
arbitrary and capricious denial of such request was made by the
Commission of the City of Birmingham. Since this course of conduct
was not sought by the defendants, the Court is of the opinion that
the validity of its injunction order stands upon its
prima
facie authority to execute the same."
[
Footnote 12]
Ala.Code, Tit. 7 App., Sup.Ct.Rule 47.
[
Footnote 13]
Shuttlesworth v. City of Birmingham, 43 Ala.App. 68,
180 So. 2d 114. The case is presently pending on certiorari review
in the Alabama Supreme Court.
[
Footnote 14]
As early as 1904, the Alabama Supreme Court noted that:
"An evident distinction is to be made in contempt proceedings
for the violation of the writ of injunction, where the writ is
improvidently or irregularly issued, and where it is issued without
jurisdiction. . . ."
Old Dominion Telegraph Co. v. Powers, 140 Ala. 220,
226, 37 So. 195, 197.
See Board of Revenue of Covington County
v. Merrill, 193 Ala. 521, 68 So. 971.
[
Footnote 15]
Reversed on other grounds,
375 U. S. 248.
[
Footnote 16]
The same rule of law was followed in
Kasper v.
Brittain, 245 F.2d 92. There, a federal court had ordered the
public high school in Clinton, Tennessee, to desegregate. Kasper
"arrived from somewhere in the East," and organized a campaign "to
run the Negroes out of the school." The federal court issued an
ex parte restraining order enjoining Kasper from
interfering with desegregation. Relying upon the First Amendment,
Kasper harangued a crowd "to the effect that, although he had been
served with the restraining order, it did not mean anything. . . ."
His conviction for criminal contempt was affirmed by the Court of
Appeals for the Sixth Circuit. That court concluded that "an
injunction order issued by a court must be obeyed," whatever its
seeming invalidity, citing
Howat v. Kansas, 258 U.
S. 181. This Court denied certiorari, 355 U.S. 834.
MR. CHIEF JUSTICE WARREN, whom MR. JUSTICE BRENNAN and MR.
JUSTICE FORTAS join, dissenting.
Petitioners in this case contend that they were convicted under
an ordinance that is unconstitutional on its face because it
submits their First and Fourteenth Amendment rights to free speech
and peaceful assembly to the unfettered discretion of local
officials. They further contend that the ordinance was
unconstitutionally applied to them because the local officials used
their discretion to prohibit peaceful demonstrations by a group
whose political viewpoint the officials opposed. The Court does not
dispute these contentions, but holds that petitioners may
nonetheless be convicted and sent to jail because the patently
unconstitutional ordinance was copied into an injunction -- issued
ex parte without prior notice or hearing on the request of
the Commissioner of Public Safety -- forbidding all persons having
notice of the injunction to violate the ordinance without any
limitation of time. I dissent because I do not believe that the
fundamental protections of the Constitution were meant to be so
easily evaded, or that "the civilizing hand of law" would be
hampered in the slightest by enforcing the First Amendment in this
case.
The salient facts can be stated very briefly. Petitioners are
Negro ministers who sought to express their concern about racial
discrimination in Birmingham, Alabama, by holding peaceful protest
demonstrations in that
Page 388 U. S. 325
city on Good Friday and Easter Sunday, 1963. For obvious
reasons, it was important for the significance of the
demonstrations that they be held on those particular dates. A
representative of petitioners' organization went to the City Hall
and asked "to see the person or persons in charge to issue permits,
permits for parading, picketing, and demonstrating." She was
directed to Public Safety Commissioner Connor, who denied her
request for a permit in terms that left no doubt that petitioners
were not going to be issued a permit under any circumstances. "He
said,
No, you will not get a permit in Birmingham, Alabama to
picket. I will picket you over to the City Jail,' and he repeated
that twice." A second, telegraphic request was also summarily
denied, in a telegram signed by "Eugene `Bull' Connor," with the
added information that permits could be issued only by the full
City Commission, a three-man body consisting of Commissioner Connor
and two others. [Footnote 2/1]
According to petitioners' offer
Page 388 U. S.
326
of proof, the truth of which is assumed for purposes of this
case, parade permits had uniformly been issued for all other groups
by the city clerk on the request of the traffic bureau of the
police department, which was under Commissioner Connor's direction.
The requirement that the approval of the full Commission be
obtained was applied only to this one group.
Understandably convinced that the City of Birmingham was not
going to authorize their demonstrations under any circumstances,
petitioners proceeded with their plans despite Commissioner
Connor's orders. On Wednesday, April 10, at 9 in the evening, the
city filed in a state circuit court a bill of complaint seeking an
ex parte injunction. The complaint recited that
petitioners were engaging in a series of demonstrations as "part of
a massive effort . . . to forcibly integrate all business
establishments, churches, and other institutions" in the city, with
the result that the police department was strained in its resources
and the safety, peace, and tranquility were threatened. It was
alleged as particularly menacing that petitioners were planning to
conduct "kneel-in" demonstrations at churches where their presence
was not wanted. The city's police dogs were said to be in danger of
their lives. Faced with these recitals, the Circuit Court issued
the injunction in the form requested, and in effect ordered
petitioners and all other persons having notice of the order to
refrain for an unlimited time from carrying on any demonstrations
without a permit. A permit, of course, was clearly
unobtainable;
Page 388 U. S. 327
the city would not have sought this injunction if it had any
intention of issuing one.
Petitioners were served with copies of the injunction at various
times on Thursday and on Good Friday. Unable to believe that such a
blatant and broadly drawn prior restraint on their First Amendment
rights could be valid, they announced their intention to defy it
and went ahead with the planned peaceful demonstrations on Easter
weekend. On the following Monday, when they promptly filed a motion
to dissolve the injunction, the court found them in contempt,
holding that they had waived all their First Amendment rights by
disobeying the court order.
These facts lend no support to the court's charges that
petitioners were presuming to act as judges in their own case, or
that they had a disregard for the judicial process. They did not
flee the jurisdiction or refuse to appear in the Alabama courts.
Having violated the injunction, they promptly submitted themselves
to the courts to test the constitutionality of the injunction and
the ordinance it parroted. They were in essentially the same
position as persons who challenge the constitutionality of a
statute by violating it, and then defend the ensuing criminal
prosecution on constitutional grounds. It has never been thought
that violation of a statute indicated such a disrespect for the
legislature that the violator always must be punished even if the
statute was unconstitutional. On the contrary, some cases have
required that persons seeking to challenge the constitutionality of
a statute first violate it to establish their standing to sue.
[
Footnote 2/2] Indeed, it shows no
disrespect for law to violate a statute on the ground that it is
unconstitutional and then to submit one's case to the courts with
the willingness to accept the penalty if the statute is held to be
valid.
Page 388 U. S. 328
The Court concedes that
"[t]he generality of the language contained in the Birmingham
parade ordinance upon which the injunction was based would
unquestionably raise substantial constitutional issues concerning
some of its provisions. [
Footnote
2/3]"
Ante, p.
388 U. S. 316.
That concession is well founded, but minimal. I believe it is
patently unconstitutional on its face. Our decisions have
consistently held that picketing and parading are means of
expression protected by the First Amendment, and that the right to
picket or parade may not be subjected to the unfettered discretion
of local officials.
Cox v. Louisiana, 379 U.
S. 536 (1965);
Edwards v. South Carolina,
372 U. S. 229
(1963);
Thornhill v. Alabama, 310 U. S.
88 (1940). Although a city may regulate the manner of
use of its streets and sidewalks in the interest of keeping them
open for the movement of traffic, it may not allow local officials
unbridled discretion to decide who shall be allowed to parade or
picket and who shall not.
"Wherever the title of streets and parks may rest, they have
immemorially been held
Page 388 U. S. 329
in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens. The
privilege of a citizen of the United States to use the streets and
parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative,
and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it
must not, in the guise of regulation, be abridged or denied."
Hague v. C.I.O., 307 U. S. 496,
307 U. S.
515-516 (1939) (opinion of Mr. Justice Roberts). When
local officials are given totally unfettered discretion to decide
whether a proposed demonstration is consistent with "public
welfare, peace, safety, health, decency, good order, morals or
convenience," as they were in this case, they are invited to act as
censors over the views that may be presented to the public.
[
Footnote 2/4] The
unconstitutionality of the ordinance is compounded, of course, when
there is convincing evidence that the officials have, in fact, used
their power to deny permits to organizations whose views they
dislike. [
Footnote 2/5] The record
in this case hardly suggests that Commissioner Connor and the other
city officials were motivated in prohibiting civil rights picketing
only by their overwhelming concern for particular traffic problems.
Petitioners were given to
Page 388 U. S. 330
understand that under no circumstances would they be permitted
to demonstrate in Birmingham, not that a demonstration would be
approved if a time and place were selected that would minimize the
traffic difficulties. The only circumstance that the court can find
to justify anything other than a per curiam reversal is that
Commissioner Connor had the foresight to have the unconstitutional
ordinance included in an
ex parte injunction, issued
without notice or hearing or any showing that it was impossible to
have notice or a hearing, forbidding the world at large (insofar as
it knew of the order) to conduct demonstrations in Birmingham
without the consent of the city officials. This injunction was such
potent magic that it transformed the command of an unconstitutional
statute into an impregnable barrier, challengeable only in what
likely would have been protracted legal proceedings and entirely
superior in the meantime even to the United States
Constitution.
I do not believe that giving this Court's seal of approval to
such a gross misuse of the judicial process is likely to lead to
greater respect for the law, any more than it is likely to lead to
greater protection for First Amendment freedoms. The
ex
parte temporary injunction has a long and odious history in
this country, and its susceptibility to misuse is all too apparent
from the facts of the case. As a weapon against strikes, it proved
so effective in the hands of judges friendly to employers that
Congress was forced to take the drastic step of removing from
federal district courts the jurisdiction to issue injunctions in
labor disputes. [
Footnote 2/6] The
labor injunction fell into disrepute largely because it was abused
in precisely the same way that the injunctive power was abused in
this case. Judges who were not sympathetic to the union cause
commonly issued, without notice or
Page 388 U. S. 331
hearing, broad restraining orders addressed to large numbers of
persons and forbidding them to engage in acts that were either
legally permissible or, if illegal, that could better have been
left to the regular course of criminal prosecution. The injunctions
might later be dissolved, but, in the meantime, strikes would be
crippled because the occasion on which concerted activity might
have been effective had passed. [
Footnote 2/7] Such injunctions, so long discredited as
weapons against concerted labor activities, have now been given new
life by this Court as weapons against the exercise of First
Amendment freedoms. Respect for the courts and for judicial process
was not increased by the history of the labor injunction. [
Footnote 2/8]
Nothing in our prior decisions, or in the doctrine that a party
subject to a temporary injunction issued by a court of competent
jurisdiction with power to decide a dispute properly before it must
normally challenge the injunction in the courts, rather than by
violating it, requires that we affirm the convictions in this case.
The majority opinion in this case rests essentially on a single
precedent, and that a case the authority of
Page 388 U. S. 332
which has clearly been undermined by subsequent decisions.
Howat v. Kansas, 258 U. S. 181
(1922), was decided in the days when the labor injunction was in
fashion. Kansas had adopted an Industrial Relations Act, the
purpose of which in effect was to provide for compulsory
arbitration of labor disputes by a neutral administrative tribunal,
the "Court of Industrial Relations." Pursuant to its jurisdiction
to investigate and perhaps improve labor conditions in the coal
mining industry, the "Court" subpoenaed union leaders to appear and
testify. In addition, the State obtained an injunction to prevent a
strike while the matter was before the "Court." The union leaders
disobeyed both the subpoena and the injunction, and sought to
challenge the constitutionality of the Industrial Relations Act in
the ensuing contempt proceeding. The Kansas Supreme Court held that
the constitutionality of the Act could not be challenged in a
contempt proceeding, and this Court upheld that determination.
Insofar as
Howat v. Kansas might be interpreted to
approve an absolute rule that any violation of a void court order
is punishable as contempt, it has been greatly modified by later
decisions. In
In re Green, 369 U.
S. 689 (1962), we reversed a conviction for contempt of
a state injunction forbidding labor picketing because the
petitioner was not allowed to present evidence that the labor
dispute was arguably subject to the jurisdiction of the National
Labor Relations Board, and hence not subject to state regulation.
If an injunction can be challenged on the ground that it deals with
a matter arguably subject to the jurisdiction of the National Labor
Relations Board, then
a fortiori it can be challenged on
First Amendment grounds. [
Footnote
2/9]
Page 388 U. S. 333
It is not necessary to question the continuing validity of the
holding in
Howat v. Kansas, however, to demonstrate that
neither it nor the
Mine Workers [
Footnote 2/10] case supports the holding of the
majority in this case. In
Howat, the subpoena and
injunction were issued to enable the Kansas Court of Industrial
Relations to determine an underlying labor dispute. In the
Mine
Workers case, the District Court issued a temporary
anti-strike injunction to preserve existing conditions during the
time it took to decide whether it had authority to grant the
Government relief in a complex and difficult action of enormous
importance to the national economy. In both cases, the orders were
of questionable legality, but, in both cases, they were reasonably
necessary to enable the court or administrative tribunal to decide
an underlying controversy of considerable importance before it at
the time. This case involves an entirely different situation. The
Alabama Circuit Court did not issue this temporary injunction to
preserve existing conditions while it proceeded to decide some
underlying dispute. There was no underlying dispute before it, and
the court, in practical effect, merely added a judicial signature
to a preexisting criminal ordinance. Just as the court had no need
to issue the injunction to preserve its ability to
Page 388 U. S. 334
decide some underlying dispute, the city had no need of an
injunction to impose a criminal penalty for demonstrating on the
streets without a permit. The ordinance already accomplished that.
In point of fact, there is only one apparent reason why the city
sought this injunction and why the court issued it: to make it
possible to punish petitioners for contempt, rather than for
violating the ordinance, and thus to immunize the unconstitutional
statute and its unconstitutional application from any attack. I
regret that this strategy has been so successful.
It is not necessary in this case to decide precisely what limits
should be set to the
Mine Workers doctrine in cases
involving violations of the First Amendment. Whatever the scope of
that doctrine, it plainly was not intended to give a State the
power to nullify the United States Constitution by the simple
process of incorporating its unconstitutional criminal statutes
into judicial decrees. I respectfully dissent.
[
Footnote 2/1]
The uncontradicted testimony relating to the rebuffs of
petitioners' attempts to obtain a permit is set out in footnotes
9 and |
9 and S. 307fn10|>10 of the majority opinion.
Petitioners were prevented by a ruling of the trial court from
introducing further proof of the intransigence of Commissioner
Connor and the other city officials toward any effort by Negroes to
protest segregation and racial injustice. The attitude of the city
administration in general and of its Public Safety Commissioner in
particular are a matter of public record, of course, and are
familiar to this Court from previous litigation.
See
Shuttlesworth v. City of Birmingham, 382 U. S.
87 (1965);
Shuttlesworth v. City of Birmingham,
376 U. S. 339
(1964);
Shuttlesworth v. City of Birmingham, 373 U.
S. 262 (1963);
Gober v. City of Birmingham,
373 U. S. 374
(1963);
In re Shuttlesworth, 369 U. S.
35 (1962). The United States Commission on Civil Rights
found continuing abuse of civil rights protesters by the Birmingham
police, including use of dogs, clubs, and firehoses. 1963 Report of
the United States Commission on Civil Rights 114 (Government
Printing Office 1963). Commissioner Eugene "Bull" Connor, a
self-proclaimed white supremacist (
see Congress and the
Nation 1945-1964: A Review of Government and Politics in the
Postwar Years 1604 (Congressional Quarterly Service, 1965)), made
no secret of his personal attitude toward the rights of Negroes and
the decisions of this Court. He vowed that racial integration would
never come to Birmingham, and wore a button inscribed "Never" to
advertise that vow. Yet the Court indulges in speculation that
these civil rights protesters might have obtained a permit from
this city and this man had they made enough repeated
applications.
[
Footnote 2/2]
See United Public Workers v. Mitchell, 330 U. S.
75,
330 U. S. 86-94
(1947)
[
Footnote 2/3]
The opinion does speculate that the Alabama courts might have
saved the ordinance by giving the licensing authority granted in
the ordinance "a narrow and precise scope," as did the New
Hampshire courts in
Cox v. New Hampshire, 312 U.
S. 569 (1941), and
Poulos v. New Hampshire,
345 U. S. 395
(1953). This suggestion ignores the fact that the statute in
Cox and the ordinance in
Poulos merely provided
that licenses for parades and certain other gatherings must be
obtained. They did not authorize local officials to determine
whether the proposed parade was consistent with "the public
welfare, peace, safety, health, decency, good order, morals or
convenience," as does the Birmingham ordinance involved in this
case, and so it was perfectly consistent with the statutory
language for the New Hampshire Supreme Court to hold that, under
the statute and ordinance, parade applicants had a right to a
license "with regard only to considerations of time, place and
manner so as to conserve the public convenience." 312 U.S. at
312 U. S.
575-576. By contrast, the Alabama courts could only give
a narrow and precise scope to the Birmingham ordinance by repealing
some of its language.
[
Footnote 2/4]
Staub v. City of Baxley, 355 U.
S. 313 (1958);
Kunz v. New York, 340 U.
S. 290 (1951);
Niemotko v. Maryland,
340 U. S. 268
(1951);
Cantwell v. Connecticut, 310 U.
S. 296 (1940).
"I 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."
Cox v. Louisiana, 379 U. S. 536,
379 U. S. 580
(1965) (opinion of MR. JUSTICE BLACK).
[
Footnote 2/5]
Niemotko v. Maryland, supra.
[
Footnote 2/6]
The Norris-LaGuardia Act, 1932, 47 Stat. 70, 29 U.S.C. §§
101-115.
[
Footnote 2/7]
Frankfurter & Greene, The Labor Injunction 47-81 (1930); Cox
& Bok, Cases and Materials on Labor Law 101-107 (1962).
[
Footnote 2/8]
"The history of the labor injunction in action puts some matters
beyond question. In large part, dissatisfaction and resentment are
caused, first, by the refusal of courts to recognize that breaches
of the peace may be redressed through criminal prosecution and
civil action for damages, and, second, by the expansion of a
simple, judicial device to an enveloping code of prohibited
conduct, absorbing,
en masse, executive and police
functions and affecting the livelihood, and even lives, of
multitudes. Especially those zealous for the unimpaired prestige of
our courts have observed how the administration of law by decrees
which through vast and vague phrases surmount law, undermines the
esteem of courts upon which our reign of law depends. Not
government, but 'government by injunction,' characterized by the
consequences of a criminal prosecution without its safeguards, has
been challenged."
Frankfurter & Greene,
supra, at 200.
[
Footnote 2/9]
"a state court is without power to hold one in contempt for
violating an injunction that the state court had no power to enter
by reason of federal preemption."
369 U.S. at
369 U. S. 692
(footnote omitted). The alleged circumstance that the court issuing
the injunction had agreed to its violation as an appropriate means
of testing its validity was considered only in a concurring
opinion. Although the petitioner in
Green had attempted to
challenge the order in court before violating it, we did not rely
on that fact in holding that the order was void. Nor is it clear to
me why the Court regards this fact as important, unless it means to
imply that the petitioners in this case would have been free to
violate the court order if they had first made a motion to dissolve
in the trial court.
[
Footnote 2/10]
United States v. United Mine Workers, 330 U.
S. 258 (1947).
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN, and MR. JUSTICE FORTAS concur, dissenting.
We sit as a court of law functioning primarily as a referee in
the federal system. Our function in cases coming to us from state
courts is to make sure that state tribunals and agencies work
within the limits of the Constitution. Since the Alabama courts
have flouted the First Amendment, I would reverse the judgment.
Picketing and parading are methods of expression protected by
the First Amendment against both state and federal abridgment.
Edwards v. South Carolina, 372 U.
S. 229,
372 U. S.
235-236;
Cox v. Louisiana, 379 U.
S. 536,
379 U. S.
546-548. Since they involve more than speech itself and
implicate street traffic, the accommodation of the public and the
like, they may be regulated as to the times
Page 388 U. S. 335
and places of the demonstrations.
Schneider v. State,
308 U. S. 147,
308 U. S.
160-161;
Cox v. New Hampshire, 312 U.
S. 569;
Poulos v. New Hampshire, 345 U.
S. 395,
46 U. S.
405-406. But a State cannot deny the right to use
streets or parks or other public grounds for the purpose of
petitioning for the redress of grievances.
See Hague v.
C.I.O., 307 U. S. 496,
307 U. S.
515-516;
Schneider v. State, 308 U.
S. 147,
308 U. S. 163;
Cox v. New Hampshire, 312 U. S. 569,
312 U. S. 574;
Valentine v. Chrestensen, 316 U. S.
52,
316 U. S. 54;
Jamison v. Texas, 318 U. S. 413,
318 U. S.
415-416.
The rich can buy advertisements in newspapers, purchase radio or
television time, and rent billboard space. Those less affluent are
restricted to the use of handbills (
Murdock v.
Pennsylvania, 319 U. S. 105,
319 U. S. 108)
or petitions, or parades, or mass meetings. This "right of the
people peaceably to assemble, and to petition the Government for a
redress of grievances," guaranteed by the First Amendment,
applicable to the States by reason of the Fourteenth (
Edwards
v. South Carolina, supra, at
372 U. S.
235), was flouted here.
The evidence shows that a permit was applied for. Mrs. Lola
Hendricks, a member of the Alabama Christian Movement for Human
Rights, authorized by its president, Reverend Shuttlesworth, on
April 3, went to the police department and asked to see the person
in charge of issuing permits. She then went to the office of
Commissioner Eugene "Bull" Connor, and told him that "we came up to
apply or see about getting a permit for picketing, parading,
demonstrating." She asked Connor for the permit, "asked if he could
issue the permit, or other persons who would refer me to, persons
who would issue a permit." Commissioner Connor replied, "No, you
will not get a permit in Birmingham, Alabama to picket. I will
picket you over to the City Jail." On April 5, petitioner
Shuttlesworth sent a telegram to Commissioner Connor requesting a
permit to picket on designated sidewalks
Page 388 U. S. 336
on April 5 and 6. The message stated that "the normal rules of
picketing" would be observed. The same day, Connor wired back a
reply stating that he could not individually grant a permit, that
it was the responsibility of the entire Commission, and that he
"insist[ed] that you and your people do not start any picketing on
the streets in Birmingham, Alabama." Petitioners' efforts to show
that the City Commission did not grant permits, but that they were
granted by the city clerk at the request of the traffic division,
were cut off.
The record shows that petitioners did not deliberately attempt
to circumvent the permit requirement. Rather, they diligently
attempted to obtain a permit and were rudely rebuffed, and then
reasonably concluded that any further attempts would be
fruitless.
The right to defy an unconstitutional statute is basic in our
scheme. Even when an ordinance requires a permit to make a speech,
to deliver a sermon, to picket, to parade, or to assemble, it need
not be honored when it is invalid on its face.
Lovell v.
Griffin, 303 U. S. 444,
303 U. S.
452-453;
Thornhill v. Alabama, 310 U. S.
88,
310 U. S. 97;
Jones v. Opelika, 316 U. S. 584,
316 U. S. 602,
adopted per curiam on rehearing, 319 U.
S. 103,
319 U. S. 104;
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S.
305-306;
Thomas v. Collins, 323 U.
S. 516;
Staub v. City of Baxley, 355 U.
S. 313,
355 U. S.
319.
By like reason, where a permit has been arbitrarily denied, one
need not pursue the long and expensive route to this Court to
obtain a remedy. The reason is the same in both cases. For if a
person must pursue his judicial remedy before he may speak, parade,
or assemble, the occasion when protest is desired or needed will
have become history, and any later speech, parade, or assembly will
be futile or pointless.
Howat v. Kansas, 258 U. S. 181,
states the general rule that court injunctions are to be obeyed
until error is found by normal and orderly review procedures.
See
Page 388 U. S. 337
United States v. Mine Workers, 330 U.
S. 258,
330 U. S.
293-294. But there is an exception where "the question
of jurisdiction" is "frivolous and not substantial."
Id.
at
330 U. S. 293.
Moreover, a state court injunction is not
per se sacred
where federal constitutional questions are involved.
In re
Green, 369 U. S. 689,
held that contempt could not be imposed without a hearing where the
state decree bordered the federal domain in labor relations and
only a hearing could determine whether there was federal
preemption. In the present case, the collision between this state
court decree and the First Amendment is so obvious that no hearing
is needed to determine the issue.
As already related, petitioners made two applications to
Commissioner "Bull" Connor for a permit, and were turned down. At
the trial, counsel for petitioners offered to prove through the
city clerk that the Commission never has granted a permit, the
issuing authority being the city clerk, who acts at the request of
the traffic division. But he was not allowed to answer the
question. And when asked to describe the practice for granting
permits, an objection was raised and sustained.
It is clear that there are no published rules or regulations
governing the manner of applying for permits, and it is clear from
the record that some permits are issued. One who reads this record
will have, I think, the abiding conviction that these people were
denied a permit solely because their skin was not of the right
color and their cause was not popular.
A court does not have jurisdiction to do what a city or other
agency of a State lacks jurisdiction to do. The command of the
Fourteenth Amendment, through which the First Amendment is made
applicable to the States, is that no "State" shall deprive any
person of "liberty" without due process of law. The decree of a
state court is "state" action in the constitutional sense
(
Shelley v.
Page 388 U. S. 338
Kraemer, 334 U. S. 1,
334 U. S. 14-18),
as much as the action of the state police, the state prosecutor,
the state legislature, or the Governor himself. An ordinance --
unconstitutional on its face or patently unconstitutional as
applied -- is not made sacred by an unconstitutional injunction
that enforces it. It can and should be flouted in the manner of the
ordinance itself. Courts as well as citizens are not free "to
ignore all the procedures of the law," to use the Court's language.
The "constitutional freedom" of which the Court speaks can be won
only if judges honor the Constitution.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, and MR. JUSTICE FORTAS join, dissenting.
Under cover of exhortation that the Negro exercise "respect for
judicial process," the Court empties the Supremacy Clause of its
primacy by elevating a state rule of judicial administration above
the right of free expression guaranteed by the Federal
Constitution. And the Court does so by letting loose a
devastatingly destructive weapon for suppression of cherished
freedoms heretofore believed indispensable to maintenance of our
free society. I cannot believe that this distortion in the
hierarchy of values upon which our society has been and must be
ordered can have any significance beyond its function as a vehicle
to affirm these contempt convictions.
I
Petitioners are eight Negro ministers. They were convicted of
criminal contempt for violation of an
ex parte injunction
issued by the Circuit Court of Jefferson County, Alabama, by
engaging in street parades without a municipal permit on Good
Friday and Easter Sunday 1963. These were the days when
Page 388 U. S. 339
Birmingham was a world symbol of implacable official hostility
to Negro efforts to gain civil rights, however peacefully sought.
The purpose of these demonstrations was peaceably to publicize and
dramatize the civil rights grievances of the Negro people. The
underlying permit ordinance made it unlawful "to organize or hold .
. . or to take part or participate in, any parade or procession or
other public demonstration on the streets . . ." without a permit.
A permit was issuable by the City Commission "unless in its
judgment the public welfare, peace, safety, health, decency, good
order, morals or convenience require that it be refused."
Attempts by petitioners at the contempt hearing to show that
they tried to obtain a permit but were rudely rebuffed by city
officials were aborted when the trial court sustained objections to
the testimony. It did appear, however, that, on April 3, a member
of the Alabama Christian Movement for Human Rights (ACMHR) was sent
by one of the petitioners, the Reverend Mr. Shuttlesworth, to
Birmingham city hall to inquire about permits for future
demonstrations. The member stated at trial:
"I asked [Police] Commissioner Connor for the permit, and asked
if he could issue the permit, or other persons who would refer me
to, persons who would issue a permit. He said, 'No, you will not
get a permit in Birmingham, Alabama to picket. I will picket you
over to the City Jail,' and he repeated that twice."
Two days later, the Reverend Mr. Shuttlesworth sent a telegram
to Police Commissioner Connor requesting a permit on behalf of
ACMHR to picket on given dates "against the injustices of
segregation and discrimination." Connor replied that the permit
could be granted only by the full Commission, and stated, "I insist
that you and your people do not start any picketing on the streets
in
Page 388 U. S. 340
Birmingham, Alabama." Petitioners were also frustrated in their
attempts at the contempt hearing to show that permits were granted
not by the Commission, but by the city clerk at the request of the
traffic department, and that they were issued in a discriminatory
manner.
On April 6-7 and April 9-10, Negroes were arrested for parading
without a permit. Late in the night of April 10, the city requested
and immediately obtained an
ex parte injunction without
prior notice to petitioners. Notice of the issuance was given to
five of the petitioners on April 11. [
Footnote 3/1] The decree tracked the wording of the
permit ordinance, except that it was still broader and more
pervasive. It enjoined:
". . . engaging in, sponsoring, inciting or encouraging mass
street parades or mass processions or like demonstrations 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, congregating on the street or public places into mobs,
and unlawfully picketing business establishments or public
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,
unlawful 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 Statutes of the State of Alabama or from doing any acts
designed to consummate conspiracies to engage in said unlawful
Page 388 U. S. 341
acts of parading, demonstrating, boycotting, trespassing and
picketing or other unlawful acts, or from engaging in acts and
conduct customarily known as 'kneelings' in churches in violation
of the wishes and desires of said churches. . . ."
Several of the Negro ministers issued statements that they would
refuse to comply with what they believed to be, and is indeed, a
blatantly unconstitutional restraining order.
On April 12, Good Friday, a planned march took place, beginning
at a church in the Negro section of the city and continuing to city
hall. The police, who were notified in advance by one of the
petitioners of the time and route of the march, blocked the streets
to traffic in the area of the church, and excluded white persons
from the Negro area. Approximately 50 persons marched, led by three
petitioners, Martin Luther King, Ralph Abernathy, and
Shuttlesworth. A large crowd of Negro onlookers which had gathered
outside the church remained separate from the procession. A few
blocks from the church, the police stopped the procession and
arrested, and jailed, most of the marchers, including the three
leaders.
On Easter Sunday, another planned demonstration was conducted.
The police again were given advance notice, and again blocked the
streets to traffic and white persons in the vicinity of the church.
Several hundred persons were assembled at the church. Approximately
50 persons who emerged from the church began walking peaceably.
Several blocks from the church, the procession was stopped, as on
Good Friday, and about 20 persons, including five petitioners, were
arrested. The participants in both parades were in every way
orderly; the only episode of violence, according to a police
inspector, was rock throwing by three onlookers on Easter Sunday,
after petitioners were arrested; the three rock throwers were
immediately taken into custody by the police.
Page 388 U. S. 342
On Monday, April 15, petitioners moved to dissolve the
injunction, and the city initiated criminal contempt proceedings
against petitioners. At the hearing, held a week later, the
Jefferson County Court considered the contempt charge first.
Petitioners urged that the injunction and underlying permit
ordinance were impermissibly vague prior restraints on exercise of
First Amendment rights, and that the ordinance had been
discriminatorily applied. The court, however, limited evidence
primarily to two questions: notice of and violation of the
injunction. The court stated that "the validity of its injunction
order stands upon its
prima facie authority to execute the
same." Petitioners were found guilty of criminal contempt and
sentenced to five days in jail and a $50 fine. The Alabama Supreme
Court, adopting the reasoning of
United States v. Mine
Workers, 330 U. S. 258,
applicable to federal court orders, affirmed, holding that the
validity of the injunction and underlying permit ordinance could
not be challenged in a contempt proceeding. 279 Ala. 53,
181 So. 2d
493.
II
The holding of the Alabama Supreme Court, and the affirmance of
its decision by this Court, rest on the assumption that petitioners
may be criminally punished although the parade ordinance and the
injunction be unconstitutional on their faces as in violation of
the First Amendment, and even if the parade ordinance was
discriminatorily applied. It must therefore be assumed, for
purposes of review of the Alabama Supreme Court's decision, and in
assessing the Court's affirmance, that petitioners could
successfully sustain the contentions (into which the Alabama courts
refused to inquire) that the ordinance and injunction are, in fact,
facially unconstitutional as excessively vague prior restraints on
First Amendment rights, and that the ordinance had been
discriminatorily
Page 388 U. S. 343
applied. It should be noted, without elaboration, that there is
clearly sound basis, in fact, for this assumption: the Alabama
Court of Appeals, in a case involving one of these petitioners, has
held that the ordinance is "void for vagueness because of
overbroad, and consequently meaningless, standards for the issuance
of permits for processions," and that the ordinance has been
enforced discriminatorily.
Shuttlesworth v. City of
Birmingham, 43 Ala.App. 68, 180 So. 2d 114 (1965). However, it
is not the merits of such claims, but the refusal of the Alabama
courts to consider them, that is here involved. [
Footnote 3/2]
Like the Court, I start with the premise that States are free to
adopt rules of judicial administration designed to require respect
for their courts' orders.
See Howat v. Kansas,
258 U. S. 181.
[
Footnote 3/3] But this does not
mean that this
Page 388 U. S. 344
valid state interest does not admit of collision with other and
more vital interests. Surely the proposition requires no citation
that a valid state interest must give way when it infringes on
rights guaranteed by the Federal Constitution. The plain meaning of
the Supremacy Clause requires no less.
In the present case, we are confronted with a collision between
Alabama's interest in requiring adherence to orders of its courts
and the constitutional prohibition against abridgment of freedom of
speech, more particularly "the right of the people peaceably to
assemble," and the right "to petition the Government for a redress
of grievances."
See, e.g., Stromberg v. California,
283 U. S. 359;
De Jonge v. Oregon, 299 U. S. 353;
Thornhill v. Alabama, 310 U. S. 88;
Edwards v. South Carolina, 372 U.
S. 229;
Cox v. Louisiana, 379 U.
S. 536. Special considerations have time and again been
deemed by us to attend protection of these freedoms in the face of
state interests the vindication of which results in prior
restraints upon their exercise, [
Footnote 3/4] or their regulation in a vague or
overbroad manner, [
Footnote 3/5] or
in a way which gives unbridled discretion to limit their exercise
to an individual or group of individuals. [
Footnote 3/6] To give these freedoms the necessary
"breathing space to survive,"
NAACP v. Button,
371 U. S. 415,
371 U. S. 433,
the Court has modified traditional rules of standing and
prematurity.
See Dombrowski
v.
Page 388 U. S. 345
Pfister, 380 U. S. 479. We
have molded both substantive rights and procedural remedies in the
face of varied conflicting interests to conform to our overriding
duty to insulate all individuals from the "chilling effect" upon
exercise of First Amendment freedoms generated by vagueness,
overbreadth and unbridled discretion to limit their exercise.
The vitality of First Amendment protections has, as a result,
been deemed to rest in large measure upon the ability of the
individual to take his chances and express himself in the face of
such restraints, armed with the ability to challenge those
restraints if the State seeks to penalize that expression. The most
striking examples of the right to speak first and challenge later,
and of peculiar moment for the present case, are the cases
concerning the ability of an individual to challenge a permit or
licensing statute giving broad discretion to an individual or
group, such as the Birmingham permit ordinance, despite the fact
that he did not attempt to obtain a permit or license. In
Staub
v. City of Baxley, 355 U. S. 313, the
accused, prosecuted for soliciting members for an organization
without a permit, contended that the ordinance was invalid on its
face because it made exercise of freedom of speech contingent upon
the will of the issuing authority, and therefore was an invalid
prior restraint -- the same contention made by petitioners with
regard to the Birmingham ordinance. The Georgia Court of Appeals
held that, "[h]aving made no effort to secure a license, the
defendant is in no position to claim that any section of the
ordinance is invalid or unconstitutional. . . ."
Staub v. City
of Baxley, supra, at
355 U. S. 318.
We refused to regard this holding as an adequate nonfederal ground
for decision, stating,
supra at
355 U. S.
319:
"The decisions of this Court have uniformly held that the
failure to apply for a license under an ordinance which on its face
violates the Constitution
Page 388 U. S. 346
does not preclude review in this Court of a judgment of
conviction under such an ordinance.
Smith v. Cahoon,
283 U. S.
553,
283 U. S. 562;
Lovell v.
Griffin, 303 U. S. 444,
303 U. S.
452. 'The Constitution can hardly be thought to deny to
one subjected to the restraints of such an ordinance the right to
attack its constitutionality, because he has not yielded to its
demands.'
Jones v. Opelika, 316 U. S.
584,
316 U. S. 602, dissenting
opinion, adopted per curiam on rehearing,
319 U. S.
103,
319 U. S. 104."
See also Cox v. Louisiana, 379 U.
S. 536,
379 U. S.
556-557.
Yet, by some inscrutable legerdemain, these constitutionally
secured rights to challenge prior restraints invalid on their face
are lost if the State takes the precaution to have some judge
append his signature to an
ex parte order which recites
the words of the invalid statute. The State neatly insulates its
legislation from challenge by mere incorporation of the identical
stifling, overbroad, and vague restraints on exercise of the First
Amendment freedoms into an even more vague and pervasive injunction
obtained invisibly and upon a stage darkened lest it be open to
scrutiny by those affected. The
ex parte order of the
judicial officer exercising broad equitable powers is glorified
above the presumably carefully considered, even if hopelessly
invalid, mandates of the legislative branch. I would expect this
tribunal, charged as it is with the ultimate responsibility to
safeguard our constitutional freedoms, to regard the
ex
parte injunctive tool to be far more dangerous than statutes
to First Amendment freedoms. One would expect this Court
particularly to remember the stern lesson history taught courts, in
the context of the labor injunction, that the
ex parte
injunction represents the most devastating of restraints on
constitutionally protected activities. Today, however, the weapon
is given complete invulnerability in the one context in which the
danger from broad
Page 388 U. S. 347
prior restraints has been thought to be the most acute. Were it
not for the
ex parte injunction, petitioners could have
paraded first, and challenged the permit ordinance later. But
because of the
ex parte stamp of a judicial officer on a
copy of the invalid ordinance, they are barred not only from
challenging the permit ordinance, but also the potentially more
stifling yet unconsidered restraints embodied in the injunction
itself.
The Court's religious deference to the state court's application
of the
Mine Workers' rule in the present case is in stark
contrast to the Court's approach in
In re Green,
369 U. S. 689. The
state court issued an
ex parte injunction against certain
labor picketing. Green, counsel for the union, advised the union
that the order was invalid, and that it should continue to picket
so that the order could be tested in a contempt hearing. The court
held Green in contempt without allowing any challenge to the order.
This Court stated that the issue was "whether the state court was
trenching on the federal domain."
In re Green, supra, at
369 U. S. 692.
It remanded for a hearing to determine whether the activity
enjoined was "arguably" subject to Labor Board jurisdiction. In
Green, therefore, we rejected blind effectuation of the
State's interest in requiring compliance with its court's
ex
parte injunctions because of the "arguable" collision with
federal labor policy. Yet, in the present case, the Court affirms
the determination of a state court, which was willing to assume
that its
ex parte order and the underlying statute were
repugnant on their face to the First Amendment of the Federal
Constitution. One must wonder what an odd inversion of values it is
to afford greater respect to an "arguable" collision with federal
labor policy than an assumedly patent interference with
constitutional rights so high in the scale of constitutional values
that this Court has described them as being "delicate and
vulnerable, as well as supremely
Page 388 U. S. 348
precious in our society."
NAACP v. Button, 371 U.
S. 415,
371 U. S.
433.
It is said that petitioners should have sought to dissolve the
injunction before conducting their processions. That argument is
plainly repugnant to the principle that First Amendment freedoms
may be exercised in the face of legislative prior restraints, and,
a fortiori, of
ex parte restraints broader than
such legislative restraints, which may be challenged in any
subsequent proceeding for their violation. But at all events, prior
resort to a motion to dissolve this injunction could not be
required because of the complete absence of any time limits on the
duration of the
ex parte order.
See Freedman v.
Maryland, 380 U. S. 51. Even
the Alabama Supreme Court's Rule 47 leaves the timing of full
judicial consideration of the validity of the restraint to that
court's untrammeled discretion.
The shifting of the burden to petitioners to show the lawfulness
of their conduct prior to engaging in enjoined activity also is
contrary to the principle, settled by
Speiser v. Randall,
357 U. S. 513,
357 U. S. 526,
that
"The man who knows that he must bring forth proof and persuade
another of the lawfulness of his conduct necessarily must steer far
wider of the unlawful zone than if the State must bear these
burdens. . . . In practical operation, therefore, this procedural
device must necessarily produce a result which the State could not
command directly. It can only result in a deterrence of speech
which the Constitution makes free."
The suggestion that petitioners be muffled pending outcome of
dissolution proceedings without any measurable time limits is
particularly inappropriate in the setting of this case. Critical to
the plain exercise of the right of protest was the timing of that
exercise. First, the marches were part of a program to arouse
community
Page 388 U. S. 349
support for petitioners' assault on segregation there. A
cessation of these activities, even for a short period, might deal
a crippling blow to petitioners' efforts. Second, in dramatization
of their cause, petitioners, all ministers, chose April 12, Good
Friday, and April 14, Easter Sunday, for their protests, hoping to
gain the attention to their cause which such timing might attract.
Petitioners received notice of the order April 11. The ability to
exercise protected protest at a time when such exercise would be
effective must be as protected as the beliefs themselves.
Cf.
Ex parte Jackson, 96 U. S. 727,
96 U. S. 733;
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S.
248-250;
Lovell v. Griffin, 303 U.
S. 444,
303 U. S. 452.
It is a flagrant denial of constitutional guarantees to balance
away this principle in the name of "respect for judicial process."
To preach "respect" in this context is to deny the right to speak
at all.
The Court today lets loose a devastatingly destructive weapon
for infringement of freedoms jealously safeguarded not so much for
the benefit of any given group of any given persuasion as for the
benefit of all of us. We cannot permit fears of "riots" and "civil
disobedience" generated by slogans like "Black Power" to divert our
attention from what is here at stake -- not violence or the right
of the State to control its streets and sidewalks, but the
insulation from attack of
ex parte orders and legislation
upon which they are based even when patently impermissible prior
restraints on the exercise of First Amendment rights, thus arming
the state courts with the power to punish as a "contempt" what they
otherwise could not punish at all. Constitutional restrictions
against abridgments of First Amendment freedoms limit judicial
equally with legislative and executive power. Convictions for
contempt of court orders which invalidly abridge First Amendment
freedoms must be condemned equally with convictions for violation
of statutes which do the same thing. I respectfully dissent.
[
Footnote 3/1]
Two petitioners received no personal notice of the injunction at
all. The trial court found that they were aware of the injunction,
a conclusion here challenged. Because of the disposition I would
make of this case, I would not reach this issue.
[
Footnote 3/2]
Thus, not an issue here is the extent of the State's right to
control the manner of use of its streets and sidewalks. Since the
Alabama courts refused to consider the merits of petitioners'
constitutional claims, it must be assumed for purposes of review
that the ordinance and injunction were invalid attempts to exercise
such control.
In
Kasper v. Brittain, 245 F.2d 92, both the District
Court and the Court of Appeals afforded the appellant full
consideration of his First Amendment contention, and found it to be
without merit. In that circumstance, the language of the opinion of
the Court of Appeals, 245 F.2d at 96, presented no issue for this
Court's review.
[
Footnote 3/3]
It should be noted that the State's interest in the integrity of
its injunctive remedy in the present case is of a different order
than that embodied in our
Mine Workers rule. The
injunctive remedy was not here necessary to preserve the
status
quo while a case was pending decision, but was merely the
conversion of a broad statutory restraint into a broader injunctive
restraint of indefinite duration, unrelated to any pending
litigation. This Court's decision in
Mine Workers was
directed to the integrity of the District Court's power "to
preserve existing conditions while it was determining its own
authority to grant injunctive relief."
United States v. Mine
Workers, 330 U. S. 258,
330 U. S. 293.
In
Howat v. Kansas, 258 U. S. 181, the
state court's order related to a pending proceeding before the
state "Court of Industrial Relations." The State's interest is here
further limited by the traditional rule of equity jurisdiction that
equity does not normally restrain criminal acts, but that the State
should proceed by criminal prosecution, with its attending
safeguards.
[
Footnote 3/4]
See, e.g., Near v. Minnesota, 283 U.
S. 697,
283 U. S.
713-720;
Freedman v. Maryland, 380 U. S.
51,
380 U. S.
57-60.
[
Footnote 3/5]
See, e.g., Keyishian v. Board of Regents, 385 U.
S. 589;
Baggett v. Bullitt, 377 U.
S. 360,
377 U. S.
372-373;
Cramp v. Bd. of Public Instruction,
368 U. S. 278,
368 U. S.
287-288.
[
Footnote 3/6]
See, e.g., Staub v. City of Baxley, 355 U.
S. 313;
Lovell v Griffin, 303 U.
S. 444;
Schneider v. State, 308 U.
S. 147,
Cantwell v. Connecticut, 310 U.
S. 296.