Walker v. City of Birmingham Brief for Respondent

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1966.

No. 249.

W YATT TEE WALKER, MARTIN LUTHER KING, JR., RALPH ABERNATHY, 
A. D. KING, J. W. HAYES, T. L. FISHER, F. L. SHUTTLESWORTH 

and J. T. PORTER,
Petitioners,

vs.
CITY OF BIRMINGHAM, a Municipal Corporation of the 

State of Alabama,
Respondent.

On Writ of Certiorari to the Supreme Court of Alabama.

BRIEF FOR RESPONDENT.

J. M. BRECKENRIDGE,
EARL McBEE,
WILLIAM C. WALKER,

All at 600 City Hall, 
Birmingham, Alabama 35203, 

Attorneys for Respondent.

St. Lotus L aw Printing Co., I nc., 411-15 N. E igh th  S t„ 63101. C E ntral 1-4477.



INDEX.

Page

Preliminary statement concerning “ questions pre­
sented” as stated by petitioners .............................  1

Questions presented .................. ................... .............  3

Alabama Constitution, Statutes and Birmingham Or­
dinances involved ....................................................  6

Statement ......................................................................  7
A. The verified injunction bill ............................... 7
B. The petition for rule nisi ..................................  11
C. Evidence ...............................................................  13
D. Treatment by lower courts ................................  18

Summary of argument .................................................  21

Argument ......................................................................  29
I. The convictions should be affirmed on the rule of 

Howat v. Kansas and Mine Workers without 
reaching constitutional issues concerning Ordi­
nance 1159 ...........................................................  29
A. The Alabama court had jurisdiction to deter­

mine its jurisdiction........................................ 35
B. The principle above stated in I has been ap­

plied in cases involving First and Fourteenth 
Amendment freedoms ....................................  39

C. Respect for the law and the courts of the land
is fundamental to the protection of minori­
ties and majorities alike, without it no con­
stitutional rights can endure .........................  44



n

II. Aside from violation of Ordinance 1159 the con­
tempt conviction should be affirmed on the 
basis of other unlawful conduct in violation of
the injunction ......................................................  48
A. The conduct of petitioners was otherwise 

unlawful ........................................................  48
B. Such unlawful conduct is not constitution­

ally protected nor immunized from punish­
ment for contempt by the fact that 1159 in
part supported the injunction ...................... 50

C. The scope and purpose of the injunction was
to preserve law and order. They adequately 
support the contempt convictions ................  52

D. The evidence is sufficient ............................. 61
E. Conviction sustainable on conspiracy charge 61

III. The constitutionality of 1159 .......................... 63
IV. Statements and news release made by Petition­

ers Walker, King, Abernathy and Shuttles- 
worth cannot be isolated from their direct part 
in the violation of the injunction to stand as
protected free speech .......................................... 66

V. The conviction of Petitioners Hayes and Fisher 
is sustained by the evidence ................................  72

Conclusion ....................................................................  74
Appendix ..................................................................... 75-85

AUTHORITIES CITED.
Cases:

Allen v. United States, 1922 (C. C. A. 7), 278 Fed. kjg
429 .........................................................................  23

Amalgamated Association of St. Elec. Ry. & Motor 
Coach, etc. v. Wisconsin Employment Relations 
Board, 340 U. S. 383, 71 S. Ct. 359, 95 L.
Ed. 364 .................................................................32,33



Ill

Avent v. North Carolina, 373 U. S, 375, 83 S. Ct.
1311 (May 20, 1963) .............................................  8 % __

Berman v. U. S., C. C. A. Okl., 76 F. 2d 483, cer­
tiorari denied, 55 S. Ct. 914, 295 U. S. 757, 79 j
L. Ed. 1699 ..........................................................  62 hJ*>

^ B la k e  v. Nesbet, 1905, 144 Fed. 279, 283, 284 .......  36 V:
Blumenthal v. United States, 332 U. S., pages 539,

559, 68 Sup. Ct. 248, 257 ......................... 26,27,61,68
 ̂Bridges v. California, 314 U. S. 252 .......................  70

•""Carter v. United States, 1943, 5th Cir., 135 Fed.
2d 858 ...................................................................22,36 ’ \

City of Darlington v. Stanley, 1961, 239 S. C. 139,
122 S. E. 2d 207 .................................................65,66

City of Greenwood v. Peacock, 86 S. Ct. 1800, 384
U. S. 808, 1966 ................ ..................................... 33

City of New Orleans v. Liberty Shop, 1924, 157 La.
. . . ,  101 So. 797 ....................................................  26

Clarke v. Fed. Trades Comm., 128 Fed. 2d 542 . . . .  23 I /-.
t-Congress of Racial Equality v. Clemmons, 1963

(C. C. A. 5), 323 Fed. 2d 54, 58, 64 ....................26,59
Coosaw Mining Co. v. South Carolina, 144 U. S. 550,

567, 12 S, Ct. 689, 36 L. Ed. 537 ...........................  54
u" Cox v. State of Louisiana, 1965, 379 U. S. 536, 554,

85 S, Ct. 453, 464 ...........................23,25,26,45,50,54
Cox v. State of New Hampshire, 312 U. S. 569, 61

S. Ct. 762, 85 L. Ed. 1049 .................................. 50,65
Craig v. Harney, 331 U. S. 367, 67 S. Ct. 1249 .......  71
Dennis v. United States (1951), 341 U. S. 494, 528,

71 S. Ct. 857, 877 ................................ ................. 48
Duplex Printing Press Co. v. Peering, 254 U. S.

443, 465, 41 S. Ct. 172, 176, 65 L. Ed. 349, 16
A. L. R. 196 ......................... ...............................  62 / / O

Ex P. Tinsley, 37 Tex. Cr. 517, 40 S. W. 306 . . . .  25, 52 £ !
Ex Parte Hacker, 250 Ala. 64, 33 So. 2d 324.. 21, 23, 38, 43

28, 73^ Fields v. City of Fairfield, 375 U. S. 248



IV

'"Fox v. Washington, 326 U. S. 273, 35 S. Ct. 383,
59 L. Ed. 573 ........................................................ 69

i. Garrison v. Louisiana, 379 IT. S. 64, 85 S. Ct. 209 .. 71
* Giboney v. Empire Ice and Storage Company, 336 

U. S. 490, 502, 69 S. Ct. 684, 691, 93 L. Ed. 834 . . .  68
u Gober v. Birmingham, 373 U. S. 374, 83 Sup. Ct.

1311 (May 20, 1963) .............................................  8
p"Gompers v. Bucks Stove & Range Co., 1911, 221 

U. S. 418, 450, 31 Sup. Ct. 492, 501, 55 L. Ed. 797,
34 L. R. A. (U. S.) 874 .................................. 23,45,69

^"Griffin v. Congress of Racial Equality, 1963, 221
Fed. Supp. 899 .....................................................26, 59

Holt v. Virginia, 381 IT. S. 131, 85 S. Ct. 1375 .......  71
Hotel and Restaurant Employees, etc. v. Greenwood,

249 Ala. 265, 30 So. 2d 696, Cert. Den. 322 H. S.
847, 68 S. Ct. 349 ......................................21, 23, 38, 42

Howat v. Kansas, 258 IT. S. 181 . . . .  20, 21, 22, 23, 24, 29,
31, 33, 35, 39, 43, 44, 47, 51,63, 64

/in  Re: Debs, 158 U. S. 564, 15 S. Ct.
900 .............................................23,24,26,28,53,56,57

v In Re Green, 369 IT. S. 689, 693 ................ 20, 21, 31, 32
In Re Landau, 243 N. Y. S. 732, 230 App. Div. 308, 

app. dismissed 255 N. Y. 567, 175 N. E. 316 . . .  .25, 52 
In re Sawyer, 360 U. S. 622, 629, 79 S. Ct. 1376,

1379 ....................................................................... 69
In re Williams, 26 Pa. 9, 67 Am. Dec. 374 ............. 22
John Mitchell et al. v. Hitchman Coal & Coke Com­

pany, 214 Fed. 685, 131 CCA 425 .........................  41
Jones v. Securities and Exchange Comm., 298 H. S.

1, 56 Sup. Ct. 654, 80 L. Ed. 1015, 1021, 1022 . . . .  22 }j
Kaner v. Clark, 108 111. A. 287 .............................25, 52 {'■
Kelly v. Page, 1964 (C. C. A. 5), 335 Fed. 2d 114. .26,60 
Liquor Control Commission v. McGillis, 1937, 91

Utah 586, 65 Pac. 2d 1136 .................................. 25,52 I
Local 333 B, United Marine Division of Int. Long­

shoremen Assn. v. Commonwealth of Virginia,



V

1952, 193 Va. 773, 71 S. E. 2d 159, cert, denied, 344
U. S. 893, 73 S. Ct. 212 .........................................  39

Lombard v. Louisiana, 373 U. S. 267, 83 Sup. Ct.
1122 ..............................................................................  8

Main Cleaners & Dyers v. Columbia Super Cleaners,
332 Pa. 71, 2 A. 2d 700 ...............................   22

Milk Wagon Drivers Local Union v. Meadowmoor 
Dairies, 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed.
836 ........................................................................ 28,73

New York Times v. Sullivan, 376 IT. S. 254, 84 S. 
Ct. 710 ................................................................... 71

^Patterson  v. Colorado, 205 IT. S. 454, 27 S. Ct. 556,
558 ........................................................................  71

i^Pennekamp v. Florida, 328 U. S. 331, 66 S. Ct. 1029 71 
People v. McCrea, 6 N. W. 2d 489, 303 Mich. 213, 

cert, denied 318 U. S. 783, 63 S. Ct. 851, 87
L. Ed. 1150 .............................. ...........................  68

People v. Tavormina, 1931, 257 N. Y. 184, 177 N. E.
317 .......................................................................... 62

Peterson v. City of Greenville, 373 IT. S. 244, 83
Sup. Ct. 1119 (May 20, 1963) ..............................  8

Poliafico v. United States, 237 Fed. 2d 97, 104 (C. A.
6, 1956); cert. den. 352 U. S. 1025, 77 S. Ct. 590,
1 L. Ed. 2d 597 .......................................... 26,27,61,68 /

Portland R. L. and P. Co. v. Railroad Commission, ,
229 U. S. 397, 33 S. Ct. 829, 57 L. Ed. 1248 ....... 28, 74

L„ Poulos v. State of New Hampshire, 345 U. S. 395,
73 S. Ct. 760, 768, 97 L. Ed. 1105, 30 ALR 
2d 987 ....................................................................  65

Reid v. Independent Union A. W., 200 Minn. 599,
271 N. W. 300, 120 ALR 297 ............................... 22 i

F'Schwartz v. United States, 1914 (C. C. A. 4), 217
Fed. Rep. 866 ...................................................... 23,40 \ f

Shipp v. United States, 1906, 203 U. S. 563, 27 S. Ct.
165, 51 L. Ed. 319, 8 Ann. Cas. 265 .............22,35,36.

ids)



VI

Short v. United States, 1937 (CCA-4), 91 Fed. 2d
614 ..............................    62

Shuttlesworth v. City, 43 Ala. App. 68, 180 So.
2d 114 ..........................   27

Sima Piano Company v. Fairfield, 103 Wash. 206, i .
174 Pac. 457 .......................................................... 22 N°

Skelly v. U. S., C. C. A., Okl., 76 F. 2d 483, cer­
tiorari denied, 55 S. Ct. 914, 295 U. S. 757, 79
L. Ed. 1699 ...........................................................  62

State ex rel. Carroll v. Campbell et al., 25 Mo.
App., loc. cit. 639 ................................................. 37

,^' Staub v. City of Baxley, 1958, 355 U. S. 313, 78 S.
Ct. 277, 2 L. Ed. 2d 319 ....................................... 63

Stoll v. Gottlieb, 305 U. S. 165, 171, 172, 59 Sup.
Ct. 134, 83 L. Ed. 104, 108, 109; 38 Am. Banks,
U. S. 79 ..............................    22

*.■ Stromberg v. California, 283 U. S. 359, 367-368 . . . .  71

v Terminiello v. Chicago, 337 U. S. 1 .......................  71
Thomas v. Collins, 323 U. S. 516, 529 ...................... 73
Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736 .. 39
Thompson v. Louisville, 362 U. S. 199, 80 S. Ct. 624,

4 L. Ed. 2d 654 .................................................... 28,73

v tlnited States v. Barnett, 1964, 376 U. S. 681, 697,
84 S. Ct. 984, 993 ...............................................  24

United States v. Debs, C. C. 111., 64 Fed. 724, error 
denied, In Re Debs, 159 U. S. 251, 15 S. Ct. 1039 .. 23

United States v. Parton, 1947 (CCA-4), 132 Fed. 2d

United States v. Rosenberg (C. C. A. 2, 1952), 195 
Fed. 2d 583, 600, 601, cert, denied, 344 U. S. 838,
73 S. Ct. 20, 21, 97 L. Ed. 652, reh. denied, 344 
U. S. 889, 73 S. Ct. 134, 180, 97 L. Ed. 687, reh. 
denied, 347 U. S. 1021, 74 S. Ct. 860, 98 L. Ed. 
1142, motion denied, 355 U. S. 860, 78 S. Ct. 91,
L. Ed. 2d 67 .................................................. 26,27,68



vn

v United States v. United Mine Workers of America,
330 U. S. 308 . . . .  20, 21, 23, 24, 31, 32, 33, 35, 36, 38, 41,

43, 44, 47, 51, 63, 64
^U nited  States v. U, S. Klans, Knights of Ku Klux

Klan, Inc., 1961, 194 Fed. Supp. 897 .................. 26,60
Whitney v. California, 274 IT. S. 397, 47 S. Ct. 641,

71 L. Ed. 594 ........................................................ 28,73
 ̂ Williams v. North Carolina, 317 U. S. 287, 291, 293 71 
Wood v. Georgia, 375 U. S. 375, 386, 82 S. Ct. 

1364, 1372 ...............................................................  70

Statutes:
Alabama Constitution of 1901, Section 144 ............  6
City of Birmingham Ordinance 1159 ...........2,26,27,63
Code of Alabama, 1940, Title 7:

Section 1038 .................   6
Section 1039 ......................................    6
Code of Alabama, 1940, Title 36, Section 5 8 ....... 6, 49
Code of Alabama, 1940, Title 37, Sections 505 and

506 ..............................   6,26,49
General City Code of Birmingham, 1944:

Section 311 .....................................................6,26,49
Section 804 .......................................................... 6,49
Section 1142 ........................................................  6
Section 1231 .............................................    6
Section 1357 ........................................................  6
Traffic Code of City of Birmingham, Articles III 

and X ................................................................. 6,49
Rules:

Alabama Supreme Court Rule 47 ......................6, 22, 38
Supreme Court Rule 40 l.d (2)................................  3

Miscellaneous:
10 American & Eng. Enc. of Pleading & Practice.. 37
Birmingham News, July 16, 1966 ................  47
Birmingham News, July 24, 1966 ................  47



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1966.

No. 249.

W YATT TEE WALKER, MARTIN LUTHER KING, JR., RALPH ABERNATHY, 
A. D. KING, J. W. HAYES, T. L. FISHER, F. L. SHUTTLESWORTH 

and J. T. PORTER,
Petitioners,

vs.
CITY OF BIRMINGHAM, a Municipal Corporation of the 

State of Alabama,
Respondent

On Writ of Certiorari to the Supreme Court of Alabama.

BRIEF FOR RESPONDENT.

PRELIMINARY STATEMENT CONCERNING 
“QUESTIONS PRESENTED” AS STATED 

BY PETITIONERS.
We think the “ Questions Presented” by petitioners are 

couched in language that fails to take into account the 
full scope of the unlawful activity charged in the bill of 
complaint and the activity prohibited by the injunction,



2

violation of which Avas charged in the contempt petition 
and for which petitioners were convicted. Specifically, 
the resolution of the problem into that of whether or not 
the Birmingham Ordinance 1159 is unconstitutionally 
vague or that the injunction must necessarily be tested 
by the constitutionality of such ordinance, or that such 
injunction or the ordinance is over broad and vague as 
a censorial regulation of free speech as stated in (1) and 
(2) its several subsections and (3), we think too narrowly 
defines the issues, which must take into account the full 
nature and extent of the unlawful conduct imminently 
threatening the safety of lives and property of citizens 
of Birmingham complained of in the bill of complaint 
and enjoined and charged in the contempt petition rather 
than to confine them solely to the mere question of 
whether a peaceful, lawful parade or procession is con­
verted into an illegal act simply by the fact that no per­
mit was ever obtained to stage such assumedly peaceful, 
lawful parade.

The approach taken by petitioners with respect to the 
above, and also as to (4), which attempts to isolate the 
defiant statements and news release of petitioners, M. L. 
King, Jr., Abernathy, Walker and Shuttlesworth from its 
place in the chain of events in consummation of the con­
spiracy which brought about and culminated in the com­
mandeering of the public streets of Birmingham by a 
throng of some fifteen hundred to two thousand Negroes, 
occupying the entire width of the pavement and extend­
ing over both sidewalks for a destination which its lead­
ers wilfully refused to disclose to law enforcement officers 
and which formed a howling, violent, rock throwing mob, 
inflicting personal injury and damage to property over­
looks the conviction of all eight petitioners for conspiracy 
to violate the injunction.

As to (5) the issue presented by petitioners leaves out 
of account relevant matters.



3

It is also to be noted that 2 (c) does not appear to be 
included in the Questions Presented in the Petition for 
Writ of Certiorari.1

We, therefore, respectfully restate the questions per- 
sented as we conceive them to be.

QUESTIONS PRESENTED.

I.

Whether the State Supreme Court properly invoked the 
doctrine that a court of general jurisdiction having full 
jurisdiction over the parties and with equity jurisdiction 
to grant injunctions, and having done so in a controversy 
over which it had jurisdiction to examine into and make 
a final determination, may punish one in criminal con­
tempt who wilfully, flagrantly, intentionally flouted and 
defiantly violated such injunction without making any 
effort to dissolve or discharge such injunction in orderly 
process of law.

H.

Whether in a collateral certiorari proceeding one who, 
without resorting to the lawful means available to test 
the authority of such court, has arrogated unto himself 
the right to contemptuously defy its order, and in the 
same defiance has openly avowed his intent to violate it 
and all other laws which he may decide are unjust, may 
nevertheless be entitled by petition for certiorari to re­
verse his conviction for criminal contempt rendered in a 
proceeding in which he has been granted a full hearing, 
with no failure to comply with procedural requirements: 
on the alleged invalidity of the injunction for vagueness; 
on the alleged invalidity of Sec. 1159 of the City Code of

1 This is in conflict with Supreme Court Rule 40 l.d  (2).



4

Birmingham; on account of alleged exclusion of evidence; 
and on account of the alleged failure of evidence to show 
a violation of a particular one of the many prohibitions 
of the injunction, such particular prohibition which he 
denies having violated having been selected from the 
many by petitioner himself!

m.
Whether one, referred to in II above, and IV below, 

who has been convicted for criminal contempt for par­
ticipating in a conspiracy to violate an injunction where 
the conspiracy has been successful and the injunction 
violated in at least one of its prohibitions, especially in 
commandeering and unlawfully taking over the streets 
and sidewalks of the City by a horde which formed a 
violent mob, and where the sentence is the same for each 
of the convicted conspirators, may attack the conviction 
by isolating the act or acts done by such conspirator from 
its or their place in furtherance of the consummation of 
the conspiracy and apply constitutional claims of viola­
tion of freedom of speech and assembly, equal protection 
of the laws and lack of due process to the separate acts 
so as to reverse his conviction if any of such acts in the 
chain so separately treated is vulnerable to such consti­
tutional attack!

IV,

Whether one who is a member of, or a member and also 
an officer in and leader of an organization, Southern 
Christian Leadership Conference (S. C. L. C.), or of its 
affiliate organization, Alabama Christian Movement for 
Human Rights (A. C. M. H. R.), against both of whom, 
their members and leaders, an injunction has been issued, 
and who is charged in the petition for rule nisi with 
conspiring with other members or leaders to defy and



violate the injunction by a series of declarations and acts, 
may, after conviction for a single offense, isolate such 
declarations from such acts in consummation of the con­
spiracy, and claim for such declarations the constitutional 
immunity of free speech with effect of reversing the con­
tempt conviction on certiorari proceedings!

V.

Whether or not two particular members of such organi­
zation (A. C. M. H. R.), J. W. Hayes and T. L. Fisher, 
both of whom attended, and one of whom (Hayes) ap­
peared on its program on Saturday night, April 13th, 
when solicitation for and plans were made to congregate 
such unruly violent mob on Easter Sunday, April 14th, 
and both of whom having admitted knowing about the 
injunction and were aware that those participating in 
such event on April 14th would likely be arrested, and as 
to one of them (Hayes) an admission that he did so in 
the face of the injunction, are entitled to reversal of their 
convictions for want of proof of intent to violate the in­
junction with notice or knowledge of its terms!



— 6 —

ALABAMA CONSTITUTION, STATUTES, AND 
BIRMINGHAM ORDINANCES INVOLVED.

Appendix
Pages

Alabama Constitution of 1901, Section 144 and Code 
of Alabama of 1940, Title 7, Sections 1038, 1039 
(Quoted in Alabama Supreme Court Opinion, R.
439) (Relating to Circuit Court Jurisdiction) __  75

Alabama Supreme Court Rule 47, Code of Alabama, 
Recompiled 1958, Title 7 (Relating to Review of 
Decrees Involving Injunctions) .............................. 76-77

Code of Alabama of 1940, Title 36, Section 58, Para­
graphs 14 (a) and (b); 15 (a) and (b); 16 (a), (b) 
and (c); 18; 19 (a) and (b) (Relating to Use of 
Streets and Highways) ............................................77-79

Code of Alabama of 1940, Title 37, Sections 505 and 
506 (Authorizing Cities and Towns to Restrain Pub­
lic Nuisances) .......................................................... 79-80

General City Code of Birmingham of 1944, Sections 
1142, 1231 and 1357, and Traffic Code of the City of 
Birmingham, Article III, Sections 3-1 (a) and (b);
3-2; 3-3; and Article X, Sections 10-3; 10-4; 10-5 (a);
10-6 (a), (b) and (c); 10-8 (a) (Relating to Use of 
Streets and Sidewalks) ............................................80-81

General City Code of Birmingham of 1944, Section 804 
(Relating to Public Nuisances), and Section 311 
(Relating to Breach of Peace) ............................... 82-83



— 7 —•

STATEMENT.
We feel some important parts of the Record have been 

omitted from petitioners’ statement.

A. The Verified Injunction Bill.
The verified bill of complaint for injunction, temporary 

and permanent, was filed April 10, 1963. In paragraph 3, 
it alleges that on numerous dates in April, 1963, re­
spondents

“ 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’ demonstra­
tions, 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, un­
lawfully 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; that the said conduct, actions' 
and conspiracies of the said respondents in the City 
of Birmingham is such conduct as is calculated to 
provoke breaches of the peace in the City of Birming­
ham; that such conduct, conspiracies and actions of 
said respondents as aforesaid threatens the safety 
(fol. 71), peace and tranquility of the City of Bir­
mingham” (R. 31, 32).

Such paragraph 3 continues with allegations that such 
conspiracies and actions have already caused or resulted 
in serious breaches of the peace and respondents threaten 
to continue such unlawful conduct unless respondents are 
enjoined2 (R. 31, 32).

2 “Such conduct, conspiracies and actions aforesaid have al­
ready caused or resulted in serious breaches of the peace and



— 8 —

Paragraph 4 and its subsections outline specific in­
stances of unlawful conduct. Some of these incidents 
relate to trespass upon private property,8 parading with­
out a permit on April 6th, 8th and 10th (E. 33). Sub­
section (c) does not charge parading without a permit 
but alleges that on April 7th, 1963, respondents organized 
a parade or procession to march upon the City Hall and 
incident thereto,

“ did further foster, encourage and cause a mob con­
sisting of approximately 700 to 1,000 Negroes to con­
gregate upon the public streets of the City of Bir­
mingham, blocking and interfering with traffic, such 
mob having been gathered to encourage the said 
intended march on City Hall of the City of Birming­
ham from a point several blocks from said City Hall, 
which said mob became unruly, a number of such 
mob blocked the sidewalks of the City of Birmingham 
and a large number refused to obey the lawful orders 
of officers of the Police Department of the City of 
Birmingham in their efforts to disperse said unruly 
mob” (R. 33, 34).

It is also alleged that the great throng caused to be con­
gregated around the City Hall in connection with such 3 * * *

violations of and disregard and contempt for the law in nu­
merous specific instances hereinafter set fo rth  and complainant 
avers th a t said respondents, separately and severally, threaten  
to continue to sponsor, foment, encourage, incite, to be com­
m itted or to eommit fu rther breaches of the peace and acts and 
conduct which are in violation of and disregard for the law 
unless respondents are enjoined therefrom ” (R. p. 32).

3 This bill of complaint was filed and the injunction issued
and contempt charges heard and the petitioners convicted on 
April 26, 1963. Gober v. Birmingham, 373 U. S. 374, 83 Sup. Ct. 
1311 (May 20, 1963) and similar cases from other states were
decided after the contempt conviction. Peterson v. City of 
Greenville, 373 U. S. 244, 83 Sup. Ct. 1119 (May 20, 1963); 
Avent v. N orth Carolina, 373 U. S. 375, 83 S. Ct. 1311 (May 20,
1963); Lombard v. Louisiana, 373 U. S. 267, 83 Sup. Ct. 1122.



— 9 —

proposed march required “ the blocking off of several 
streets in the City of Birmingham to prevent breaches 
of the peace and violence, including mob violence” (R. 
34).

It is alleged in paragraph 5 that the acts alleged in the 
two preceding paragraphs have placed an undue strain 
upon the manpower of the Police Department of the City 
of Birmingham in the effort to provide for the safety of 
the respondents in said conduct and activities upon the 
public streets and public places in said City and to pro­
vide for the safety and tranquility of the entire eitizem 
ship and will cause damage to city property and injury 
or loss of life to police officers (R. 34).

In paragraphs six and seven, a conspiracy of respond­
ents and others to continue such actions and conduct to 
the imminent danger to lives, safety, peace and tranquility 
of the people of Birmingham unless enjoined is alleged4 
(R. 34, 35). A threat to conduct “ Kneel-Ins” is alleged 
in paragraph 8 (R. 35). In said paragraph 8, it is alleged 
upon information and belief that the acts and conduct 7

4 Said paragraphs read as follow s:
“6. Your complainant is informed and believes and upon such 

information and belief avers tha t respondents, separately and 
severally, and others acting in concert with respondents, whose 
exact names and entities are otherwise unknown to your com­
plainant at this time will continue to enter into the City of 
Birmingham conducting themselves as above described, which 
will lead to fu rther imminent danger to the lives, safety, peace, 
tranquility  and general welfare of the people of the City of 
Birmingham, Jefferson County, and the State of Alabama, and 
th a t tension will continue to mount as such activities are con­
tinued.

7. Your complainant is informed and believes and upon such 
inform ation and belief avers th a t there is strong and convinc­
ing reason to believe th a t respondents and others acting in con­
cert with respondents, whose names are otherwise unknown to 
your complainant, have and will continue to conspire to engage 
in unlawful acts and conduct as aforesaid unless enjoined from 
so doing” (R. 34, 35).



— 10 —

of respondents “ is a part of a massive effort by respond­
ents and those allied or in sympathy with them to forcibly 
integrate all business establishments, churches, and other 
institutions of the City of Birmingham” (JR. 35).

Allegations of irreparable injury are contained in para­
graph 95 (B,. 35).

The prayer for injunction is to restrain the parties, 
their agents and servants, followers and those in active 
concert with them and persons having notice of said 
order from continuing any acts hereinabove designated, 
particularly: I, engaging in, sponsoring, inciting or en­
couraging (1) mass street parades, processions or like 
demonstrations without a permit; (2) trespasses after 
warning upon private property; (3) congregating upon 
the streets or public places into mobs, and (4) unlawfully 
picketing business establishments or public buildings or 
performing acts calculated to cause breaches of the peace; 
or II, conspiring to engage in: (1) unlawful street parades; 
(2) unlawful processions; (3) unlawful demonstrations; 
(4) unlawful boycotts; (5) unlawful trespasses and un­
lawful picketing or other like unlawful act or from vio­
lating the ordinances of Birmingham and statutes of 
Alabama; or III, from doing any acts designed to con­
summate conspiracies to engage in said unlawful acts 
of (1) parading, (2) demonstrating, (3) boycotting, (4) 
trespassing, and (5) picketing, (6) or other unlawful acts; 
or IV, from engaging in acts and conduct customarily 
known as “ Kneel-Ins” in churches in violation of the

5 Said paragraph reads: “9. Complainant avers th a t its rem­
edy by law is inadequate, th a t the continued and repeated acts 
of respondents, as herein alleged, will eause incidents of vio­
lence and blood- (fol. 74) shed; th a t complainant has no other 
adequate remedy to prevent irreparable in ju ry  to persons and 
property in the City of Birmingham, Jefferson County, and 
verily believes th a t such will occur if such respondents con­
tinue to so conduct themselves which they will do if not re­
strained by this Court.”



11 —

wishes and desires of the members of said churches0 
(R. 40).

The temporary injunction writ issued in language identi­
cal with the prayer of the bill (R. 43-45).

B. The Petition for Rule Nisi.
The criminal contempt action was initiated by a peti­

tion for rule nisi duly served upon all the respondents. 
Such petition contained allegations charging the defiance 
of the injunction and intention to disobey issued by the 
Circuit Court of Alabama both in and prior to the press 
conference held during the day of April 11th and in other 
statements at meetings of the respondent, Alabama 
Christian Movement for Human Rights on April 11th, 
12th and 13th by petitioners, Martin Luther King, Jr., 
Abernathy, Shuttlesworth, Walker, A. E>. King (Para­
graphs 6, 7, 8 and 9—R. 85-86).

It is alleged in paragraph 7 that respondents, Aber­
nathy, Shuttlesworth and A. D. King announced at the 
meeting on April 11th they would participate in an un­
lawful march or procession on April 12th and would go 
to jail and solicited volunteers to engage in it. One or 
more of said respondents openly boasted the injunction 
had been violated that day (R. 85-86).

I t is averred that at the April 12th meeting volunteers 
were solicited to engage in unlawful processions, parades 
and other unlawful activities; that respondent, Wyatt Tee 
Walker, solicited volunteers to go to jail and also about 
a dozen or twro volunteers to die for the cause (Par. 8— 
R. 36).

At the meeting on Saturday night, April 13th, respond­
ent Walker called for volunteers to engage in an unlawful 6

6 Division of the prayer for injunction into numbered parts 
is supplied in this brief for purpose of convenience and did not 
appear in the original bill.



12

procession in violation of the injunction and to go to jail. 
A call was also made for children, ages from the first 
grade up. Also a call was made for volunteers to call all 
other Negroes to assemble as many Negroes as possible 
at the time of the procession or march on Easter Sunday, 
April 14th (Par. 9, E. 86, 89).

Specific overt acts in consummation of the conspiracy 
and in violation of the injunction are alleged in paragraph 
10 and its subparts (R. 87, 88). Paragraph 10 (B) relates 
to the April 12th march or procession in which Peti­
tioners Martin Luther King, Jr., Abernathy and Shuttles- 
worth were direct participants (E. 87).

Allegations setting forth the gathering of the violent 
mob on Sunday, April 14th, as a part of said conspiracy 
are contained in paragraph 10-1),7 Direct participants 
were respondents, A. D. King, Jr., J. W. Hayes, John 
Thomas Porter and T. L. Fisher. All but said Fisher

7 “D. On E aster Sunday afternoon, in response to the said 
solicitations made at said meeting on Saturday night, April 
13th, as hereinabove alleged and as a p a rt of said conspiracy 
and concert of action, an unruly  mob of chanting, dancing, hop­
ping Negroes consisting of several thousand assembled in and 
around Thurgood C. M. E. Church a t 11th S treet and 7th Ave­
nue, North. An unlawful procession consisting of several hun­
dred Negroes formed at said church and proceeded to parade 
or march upon the public sidewalks and streets of the City of 
Birmingham w ithout a permit, unlawfully and in violation of 
City Ordinance and in violation of said injunction. Said un­
ru ly  mob followed along side, behind and in fron t of said pro­
cession and persons forming a p art of said mob threw  rocks, 
brickbats or other dangerous objects a t members of the Police 
D epartm ent of the City of Birmingham engaged in arresting 
said members of said procession. A motor vehicle of the Police 
Departm ent was struck by a rock or brickbat or other hard  ob­
ject and was seriously damaged. Mr. James W are, a newspa­
per photographer employed by Birmingham Post-Herald, was 
struck and in jured by a rock or other dangerous object. Other 
persons, including police officers, were narrow ly missed by said 
rocks or other dangerous objects which were thrown on said 
occasion. One (fol. 125) officer of the said Police D epartm ent 
was in jured by one of said paraders or marchers resisting a r­
rest in the tense atmosphere created by said mob” (R. 88).



13

were parties respondent and liad been served with said 
injunction prior thereto. The latter is alleged to have 
participated with knowledge (Par. 11, R. 89).

C. Evidence.

Recruitment to Die and to Go to Jail.
At every meeting on April 12th, 13th and 14th, people 

willing to go to jail were recruited, but at the meeting on 
April 11th, petitioner Wyatt Tee Walker said “ he was 
looking for two dozen Negroes who are willing to die 
for me!” This testimony was given by Mr. J. Walter 
Johnson, Jr., a reporter for the Associated Press, who 
attended all of the meetings, April 12th through April 
14th (Pet. Br. 7) and was testifying from his notes made 
at the meetings (R. 202, 203, cross. 204).

On the question of recruitment to go to jail, Petitioner 
Abernathy was upset because A1 Hibler, the Negro blind 
singer who led a march on Wednesday and Thursday and 
was not arrested (E. 189). He said, “ That is discrimina­
tion and we don’t like it.” In other words that Hibler 
was discriminated against because he was not arrested 
(E. 190).

Dr. King said Ralph Abernathy and he were to follow 
Hibler on Thursday but because he was not arrested on 
Wednesday “ they gave him another opportunity on 
Thursday and they would wait until Good Friday” (R. 
189, 190).

Also at this meeting note was taken of some who had 
just gotten out of jail. They were introduced to the 
meeting by Rev. Young (R. 201, 202).

Recruitment of Participants in Marches.
Volunteers were enlisted to participate in the marches 

(J. Walter Johnson, Jr., R. 193; Elvin Stanton, R. 245;



14 —

Petitioner T. L. Fisher, E. 301; Petitioner J. W. Hayes, 
R. 333, 334). Petitioner Wyatt Tee Walker made a call 
at the meeting on April 12th for students of Birmingham, 
Grade 1 through graduate school, to meet Saturday morn­
ing, April 13th. He said: “ There is something we want 
to do with the student population of Birmingham. They 
can get a better education in five days in this jail than 
five months in school” (E. 202). At the meeting on Sat­
urday night, April 13th, a call was made for volunteers 
who would call all the Negroes in the community and get 
them out the next day, Sunday, April 14th (Rev. T. L. 
Fisher, E. 301, 302).

Secrecy as to Destination of Marches.
No evidence was offered of any effort to get a permit 

relating to any march, procession or demonstration 
charged in the rule nisi petition. The Court made it clear 
that evidence of any effort made to get a permit for any 
incident charged in such petition as a violation would be 
relevant (E. 286, top of page). No such evidence was 
ever offered, although it does appear that the head of the 
Alabama Christian Movement, Eev. F. L. Shuttlesworth, 
had been informed as early as April 5th of the proper 
way to make an application for such a permit (R. 285, 
Statement of Counsel for City).

Not only was there a failure to apply for a permit but 
there was a failure or refusal to furnish accurate informa­
tion as to the time, route and destination. The information 
picked up by the Police Department on these mat­
ters was imprecise and inaccurate. Word had been re­
ceived from some source, possibly the press (R. 165) that 
the demonstrations on April 12th and April 14th would 
either be on City Hall or City Jail (Inspector Haley, E. 
146 as to the 12th; Lieutenant Painter as to the 14th, R. 
215). Rev. N. H. Smith and Rev. J. W. Hayes, both of 
whom were robed participants in the April 14th march,



— 15 —

testified they did not know where the march was scheduled 
to go (E. 315, 316, 338). On the afternoon of April 14th, 
Lieutenant Painter questioned petitioner Wyatt Tee 
Walker as to whether the destination was City Hall or 
City Jail or neither (R. 215). Some information appears 
to have come from petitioner Walker relating to April 
12th, but this related to a march which was supposed to 
come at 12:00 Noon or 12:15 (R. 180).

No Distinction Between Marchers and 
Accompanying Crowds.

A large crowd gathered at a church on 6th Avenue, 
North, at 16th Street. The march led by petitioners, 
Martin Luther King, Jr., Abernathy and Shuttlesworth, 
came out of the church but the crowd outside joined with 
them. Lieutenant Painter testified, “ As the group came 
out of the church then the whole group of people who 
had assembled along the sidewalk followed along behind 
them and I think you could describe it as one procession’’ 
(R. 207). This related to the march held on April 12th 
after 2:45 P. M. (R. 149, 206, 207).

Concerning the April 14th incident, the same witness 
testified that as the marchers came out of the church and 
started walking at a rapid pace, “ almost simultaneously 
as if with the same movement, or I will say simultane­
ously, this large crowd that had gathered outside began 
moving along with them . . . covering, basically all the 
area of the street and sidewalk’’ (R. 215). When Nelson 
Henry Smith, Jr., one of the defendants on trial, was 
asked on cross-examination whether anyone on the out­
side of the church joined the some five or six hundred as 
they came out of the church, he testified: “ Well, every­
body was just going walking in the same direction” (R. 
315). Inspector Haley said that after the Easter Sunday 
march started: “ They did block the street. That is be­
tween 11th Street and 7th Avenue up to 5th Alley and

♦



—  16

11th. Street, The street was solid, and the sidewalks were 
solid with marchers” (R. 155). He described it as a 
solid mass, filling the streets and sidewalks (R. 156, 157). 
Complainants Exhibits 3, 4, 5 and 6, referred to by the 
Alabama Supreme Court in its opinion (R. 436, bottom 
of page) graphically depict the scene as photographed 
by Mr. James Ware, Newspaper Photographer. These 
exhibits appear on pages 411-414 of the record. They 
were identified, described and introduced (R. 359, 360). 
Exhibit 3 was taken within a block and a half of the 
church from whence it started, the church appearing in 
the picture on the right is not the church of origin (R. 
360). Exhibit 4 shows police officers in the foreground 
and the marchers in the background.

Marchers and Crowd Were One and Under 
a Single Command.

Lieutenant Painter testified that on April 12th peti­
tioner Wyatt Tee Walker, speaking and signalling to the 
crowd, told them to circle the block one time. This was 
after the police officers encountered difficulty in getting 
the crowd to scatter (R. 208, 209). As to the April 14th 
incident, Rev. Wyatt Tee Walker, upon being told that 
by Painter the concern of law enforcement officers in be­
ing informed of the time and destination of the march 
“ was in the interest of controlling the crowds and law 
enforcement” , to which “ he replied . . .  ‘If you control 
yourself and the police as well as I control this crowd, 
there won’t be any problem. I guarantee you I can con­
trol these people’ ” (R. 215).

Police Succeeded in Avoiding a 
Serious Racial Conflict.

On both instances the police officers blocked the imme­
diate area where the crowds were congregating both to 
white pedestrians and vehicular traffic as a necessary pre­



17

caution to prevent a conflict with white racial agitators 
and because of the traffic hazard created (R. 154, 170, 
174). From the experience of the “ Freedom Rider” in­
cident when outside agitators assaulted and beat the 
demonstrators, Inspector Haley was of the opinion that 
the demonstrations then in progress were likely to attract 
these trouble makers from out of Jefferson County with 
a serious racial conflict resulting (R. 174). Inspector 
Haley testified that these precautions succeeded in keep­
ing down an undue amount of violence and strife and 
trouble away from the City, and prevented racial con­
flict between Negroes and whites (R. 185). To this ex­
tent by hard effort, the Police Department had maintained 
law and order (R. 182, 184) and had succeeded in their 
purpose to protect the demonstrators (R. 161). This was 
made more difficult by the refusal of the leaders to furnish 
accurate information to the Police Department (R. 170).

Movement Psychology of Violence.
On cross-examination, Lieutenant Willie B. Painter tes­

tified as to the nonviolent methods of the two organiza­
tions involved. “ The teachings have been nonviolent. 
The psychology and methods used have been to incite 
others to create violence upon the participants in demon­
strations” . He also said, “ There has been a complete 
program within the last year or eighteen months of teach­
ing hatred of the white people, that they are your ene­
mies. They were teaching nonviolence on the one hand, 
but on the other hand they were saying that the Negroes 
in Birmingham, Alabama, are buying fire arms to pro­
tect themselves. They were supposedly teaching non­
violence but yet psychologically they were advocating 
violence” (R. 220).

At the time of the defiant news release on the morning 
of April 11th, Petitioner Shuttlesworth also used a sep­
arate paper and made some comments in which he said:



18 —

“ If the police couldn’t handle it, the mob would” (R. 
250).

Also in talking to Lieutenant Painter, Petitioner Walker 
said if the Movement “ did not obtain the things that we 
are seeking, then we will follow the course of revolution 
to obtain these things”8 (R. 213).

The Crowds Assembled Became Unruly, 
Belligerent and Violent.

Inspector Haley was asked whether the crowds on both 
occasions became unruly, to which he replied: “ Yes, and 
belligerent. We did not make as many arrests as we 
could have if we had just faced the crowd, but we had 
other work to perform” (R. 172). Inspector Haley also 
testified: “ There was violence in that one or more officers 
and a newspaper man had been injured and City property 
destroyed, during these incidents” (R. 182). Other evi­
dence of violence, especially on the occasion of April 14th 
is detailed by the Supreme Court of Alabama (R. 436). 
That court made specific reference to the testimony of 
witnesses Painter (R. 216) and Ware (R. 231-233). Its 
opinion also referred to the testimony of Painter that 
petitioner Wyatt Tee Walker had formed the crowd out­
side into a group that joined the April 14th march (R. 
214, 215).

D. Treatment by Lower Courts.
The Circuit Court made clear at the outset before the 

hearing began the issue he considered presented by the 
contempt citation on the question of jurisdiction was 
whether the court was an equity court and issued the 
injunction in a case in which the Court had jurisdiction 
over the parties. There remained only the question of

8 This statem ent was in a context of a discussion to the ef­
fect th a t 2% of the people in Russia succeeded in overthrow­
ing the government (R. 212, 213).



— 19 —

their having violated the injunction knowingly; that some 
motion should have been filed so that the court could de­
termine whether or not it had properly issued the in­
junction before it was violated (R. 140).

In its opinion this court clearly limited the convictions 
to criminal contempt for past conduct (R. 420). The 
Court also commented on the absence of any evidence that 
any effort had been made to comply with the require­
ments of the permit ordinance. In its opinion the court 
said:

“ The legal and orderly processes of the court 
would require the defendants to attack the unreason­
able 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 in­
junction order stands upon its prima facie authority 
to execute the same” (R, 422).

This court also concluded these petitioners were guilty 
of a conspiracy, that is concerted efforts to personally 
violate the injunction and encourage and incite others 
to do so.0 9

9 The pertinent language of the court concerning all defend­
ants except defendants Gardner, C. Woods, A. Woods, J r . and 
Palmer, as to whom motion to exclude the evidence was granted 
is as follows: “U nder all the evidence in the case, the Court is 
convinced beyond a reasonable doubt th a t the remaining defend­
ants had actual notice of the existence of the prohibitions, as 
contained in the injunction, and of the existence of the order 
itself; and tha t the actions of all the remaining defendants 
were, in the opinion of this Court, obvious acts of contempt, 
constituting deliberate and blatant denials of the authority  of



20 —

This Court also relied upon and cited United States v. 
United Mine Workers of America, 330 IT. S. 308 (concur­
ring opinion of Mr. Justice Frankfurter).

The Alabama Supreme Court, in reliance upon the same 
Mine Workers case (330 U. S. 258, 290-295), and Howat v. 
Kansas, 258 U. S. 181, and citing the concurring opinion 
of Mr. Justice Harlan in In Re Green, 369 U. S. 689, 693 
(R. 440-442) decided the case as one in criminal contempt 
only and upon the proposition that it is the duty of one to 
obey an injunction, even if it should be based upon en­
forcement of an invalid ordinance, until he takes appro­
priate legal steps to accomplish its discharge or dis­
solution.

The Alabama Supreme Court determined the jurisdic­
tional right of the Circuit Court to issue injunctions un­
der Sec. 144, Constitution of Alabama, and Secs. 1038 and 
1039, Code of Alabama, 1940 (R. 439), but did not explore 
the constitutionality of Sec. 1159. It found there were no 
procedural defects in the proceeding, except as to three 
respondents, as to whom the Court felt there was insuf­
ficient evidence to show a violation of the injunction with 
notice of its terms”10 (R. 446, 447).

this Court and its order and were concerted efforts to both 
personally violate the said injunctive order and to use the per­
suasive efforts of their positions as ministers to encourage and 
incite others to do likewise” (R. 422).

10 The three as to whom convictions were quashed were 
Andrew Young, Jam es Bevil, and N. H. Smith, Jr.



— 21 —

SUMMARY OF ARGUMENT.

I.
The Supreme Court of Alabama, in the opinion under 

review, had on certiorari reviewed the decision of the 
Circuit Court from the criminal contempt convictions on a 
record which that Court concluded shows wilful contempt 
on the part of petitioners after service upon them of the 
bill of complaint and writ of injunction, with the excep­
tion of petitioners Hayes and Fisher, both of whom were 
parties but had not been served but as to whom the Court 
concluded they violated the injunction with notice. It is 
submitted that court properly held the issue of the con­
stitutionality of Ordinance 1159, Parading Without a 
Permit, was not presented for review on certiorari from 
the Circuit Court which had jurisdiction to issue the in­
junction because it was a court of equity, had jurisdiction 
of the parties and no effort was made to modify or dis­
solve such injunction prior to its violation, there 
being no question of procedural defects in the contempt 
proceedings, no contention appearing in the record that 
after the injunction was issued any effort was made to 
request a permit or otherwise attempt to comply with the 
injunction insofar as it banned parading without a per­
mit as required by such ordinance. Such conclusion of 
the Alabama Supreme Court rested on an adequate state 
ground, that is, that on certiorari from a criminal con­
tempt conviction in such case the Court will not consider 
the merits of the injunction, even if it rested upon an 
ordinance or statute found to be unconstitutional, a doc­
trine accepted by state and federal courts alike. Howat 
v. Kansas, 258 U. S. 181, 42 S. Ct. 277; United States v. 
United Mine Workers, 330 U. S. 258; In Re Green, con­
curring opinion of Mr. Justice Harlan, 369 H. S. 689, 693; 
Ex Parte Hacker, 250 Ala. 64, 33 So. 2d 324; Hotel and 
Restaurant Employees, etc. v. Greenwood, 249 Ala. 265, 
30 So. 2d 696, Cert. Den. 322 U. S. 847, 68 S, Ct. 349.



—  22

A. The Alabama Circuit Court at least had jurisdiction 
to determine its own jurisdiction and wilful violation of 
its injunctive decree is punishable as criminal contempt 
even if the court ultimately is determined to have no 
jurisdiction. Shipp v. United States, 1906, 203 U. S. 563, 
27 S. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265; Howat v. 
Kansas, 1922, 258 U. S. 181, 42 S. Ct. 277, 66 L. Ed. 550; 
Carter v. United States, 1943, 5th Cir., 135 Fed. 2d 858; 
In re Williams, 26 Pa. 9, 67 Am. Dec. 374; Sima Piano 
Company v. Fairfield, 103 Wash. 206, 174 Pac. 457.

Reid v. Independent Union A. W., 200 Minn. 599, 271 
N. W. 300, 120 ALR 297; Main Cleaners & Dyers v. Colum­
bia Super Cleaners, 332 Pa. 71, 2 A. 2d 700; See also Stoll 
v. Gottlieb, 305 U. S. 165, 171, 172, 59 Sup. Ct. 134, 83 
L. Ed. 104, 108, 109; 38 Am. Banks, TJ. S. 79; cf.—Jones 
v. Securities and Exchange Comm., 298 IT. S. 1, 56 Sup. Ct. 
654, 80 L. Ed. 1015, 1021, 1022.

The orderly and legal way to have tested the Alabama 
Circuit Court temporary injunction was to file a motion 
to dissolve which could have raised the question of the 
court’s authority and all constitutional or other questions 
relating to the temporary injunction as petitioners knew 
and mentioned in their news release, an appeal from a 
ruling on which motion lies to the Supreme Court as a 
preferred case. Alabama Supreme Court Rule 47 (Appen­
dix, pages 76-77). The principal petitioners knew and 
mentioned on the day they received service of the injunc­
tion the proper way to attack it was to move its dissolu­
tion. They also said they would violate the injunction 
regardless and made no effort to comply and stated they 
would do so and risk the possible consequences involved.

B. The rule applies even if constitutional freedoms are 
involved in complying with the injunction, since the Court 
will not consider the merits of the main case in the col­
lateral matter of contempt, as the motion to dissolve the



injunction in a direct proceeding is the only remedy un­
less the issuing court is totally without jurisdiction to 
issue the injunction. Howat v. Kansas, 258 U. S. 181, 42 
Sup. Ct. 277; Schwartz v. United States, 1914 (0. C. A. 4), 
217 Fed. Eep. 866; Allen v. United States, 1922 (C. C. A. 
7), 278 Fed. 429; Clarke v. Fed. Trades Comm., 128 Fed. 
2d 542; United States v. United Mine Workers, 330 U. S. 
258, supra; Ex parte Hacker, 250 Ala. 64, 33 So. 2d 324; 
Hotel and Restaurant Employees, etc. v. Greenwood, 249 
Ala. 265, 30 So. 2d 696, cert. den. 322 U. S. 847, 68 S. Ct. 
349; cf. United States v. Debs, C. C. 111., 64 Fed. 724, error 
denied, In Re Debs, 159 U. S. 251, 15 S. Ct. 1039; cf. In 
Re: Debs, 158 U. S. 564, 15 S, Ct. 900.

C. Any argument, regardless of how plausible and al­
luring it may sound, which has at its underlying roots the 
doctrine that any citizen is entitled to wilfully violate an 
injunction issued against him without making any effort 
to comply with it, or as to that matter wilfully violate 
any law applicable to him simply because he does not feel 
it is just as to him, without having recourse to remedies 
duly provided by the law is untenable because the ultimate 
and inexorable end result is chaos and anarchy. Gompers 
v. Bucks Stove & Range Co., 1911, 221 IT. S. 418, 450, 31 
Sup. Ct. 492, 501, 55 L. Ed. 797, 34 L. R. A. (U. S.) 874; 
United States v. United Mine Workers of America, 1947 
(Mr. Justice Frankfurter concurring), 330 U. S. 258, 307, 
308, 309, 67 Sup. Ct. 677, 703; Cox v. State of Louisiana, 
1965, 379 U. S. 536, 554, 85 S. Ct. 453, 464, dissenting 
opinion of Mr. Justice Black, 379 U. S. at pages 583, 584. 
The record in this case compels the conclusion that peti­
tioners in this case, and especially those who openly de­
clared their intentions to violate the injunction had the 
uttermost contempt for the court and the injunction and 
made no effort whatever to comply with it but to the 
contrary exploited its intentional violation as a vehicle 
to obtain nationwide publicity in press, radio and TV.



24

In Re: Debs, 1895, 158 U. S. 564, 15 S. Ct. 900; United 
States v. Barnett, 1964, 376 U. S, 681, 697, 84 S, Ct. 984, 
993.

Submission under this Section I is that the contempt 
convictions of petitioners should be sustained as against 
the several constitutional grounds asserted in opposing 
briefs, treating the convictions as having been solely based 
upon a violation of ordinance 1159, without considering 
the constitutionality thereof because of the failure of peti­
tioners to present such constitutional contentions by mo­
tion to dissolve prior to wilfully violating the injunction. 
It is assumed arguendo that no enjoinable conduct other 
than simply failure to obtain a parade permit is involved.

The primary basis is the rule of Mine Workers and 
Howat v. Kansas, which we urge be left unchanged.

II.
The criminal contempt convictions of petitioners are 

not erroneous and subject to reversal on account of the 
contentions made in briefs for petitioners and the United 
States, as amicus curiae that there was lack of due process 
or failure to afford equal protection of the laws or a 
violation of the freedom of speech or assembly provisions 
of the First and Fourteenth Amendments.

A. Aside from any consideration of ordinance 1159, as 
a support for the injunction, the conduct of petitioners 
shown by the record discloses a conspiracy to violate the 
injunction in the news conference, repeated meetings of 
the “movement” resulting in the march on April 12th and 
culminating in the assembly of the mob and the march or 
procession of April 14th, when correct information as to 
time, route and destination were not only not furnished 
police authorities, but such information wilfully with­
held, and where the entire street and both sidewalks were 
preempted and commandeered by the procession or march-



ers and whose destination whether to City Hall, Northeast 
or City Jail, Southwest of the starting place, was 
shrouded in secrecy and which formed an unruly, bellig­
erent, howling, cursing mob, gathered by and controlled 
by petitioners and those in concert of action with them, 
is conduct which cannot under any circumstances qualify 
as constitutionally protected.

JB. The First and Fourteenth Amendments do not con­
fer absolute right to patrol, march, picket or otherwise 
use the streets as means of communicating ideas. Such 
rights are subject to the concommitant right and duty of 
the City to control the use of the streets for the common 
use and welfare of the public. Cox v. Louisiana, 1965, 379 
IT. S. 536, 554, 558, 85 S, Ct. 453, 464, 468. The existence 
of the injunction in part rested upon ordinance 1159, 
which assuming arguendo to be unconstitutional and that 
such part of said injunction is therefore void, do not con­
fer any rights upon petitioners to engage in nonconstitu­
tionality protected acts described in A, above, and which 
are otherwise validly prohibited by the injunction. Liquor 
Control Commisison v. McGillis, 1937, 91 Utah 586, 65 
Pae. 2d 1136; Kaner v. Clark, 108 111. A. 287; Ex P. Tins­
ley, 37 Tex. Cr. 517, 40 S. W. 306; In Re Landau, 243 
N. Y. S. 732, 230 App. Div. 308, app. dismissed 255 N. Y. 
567, 175 N. E. 316.

C. The clear scope and central purpose of the verified 
bill for the injunction was to preserve law and order in a 
situation alleged to involve imminent danger of lawless­
ness, violence, bloodshed and serious loss and damage to 
property of the city and others and mass violations of 
city and state laws, especially alleging interference in the 
use of the streets by the congregating of a large unruly 
mob with threatened breaches of the peace and mob vio­
lence in consummation of a conspiracy and threatened con­
tinuation of such conduct unless enjoined. All of which 
constituted an enjoinable public nuisance without regard



■— 26 —■

to Ordinance 1159. In Re Debs, 158 U. S. 564, 15 S. Ct. 
900'; 39 L. Ed. 1092 ; City of New Orleans v. Liberty Shop, 
1924, 157 La. . . . ,  101 So. 797; General City Code of Bir­
mingham, 1944, See. 311; Code of Alabama 1940 (1958 
Rec. Ed.), Sections 505, 506; cf. United States v. U. S. 
Klans, Knights of Ku Klux Klan, Inc., 1961, 194 Fed. 
Supp. 897; IT. S. v. Parton, 1943 (C. C. A. 4), 132 Fed. 
2d 886, 887; Cox v. Louisiana (Mr. Justice Black, dissent­
ing), 1965, 379 U. S. 578, 85 S. Ct. 453, 468, 471.

The contempt convictions may be properly rested upon 
violation of those parts of the injunction writ prohibiting 
the congregation of mobs upon public streets and public 
places, and in connection therewith conduct calculated to 
cause a breach of the peace and violation of city and 
state laws, especially those related to the use of streets 
and sidewalks and such injunction writ is not void for 
vagueness or overbreadth. In Re Debs, 1895, 158 U. S. 
564, 15 S. Ct. 900; Congress of Racial Equality v. Clem­
mons, 1963 (C. C. A. 5), 323 Fed. 2d 54, 58, 64 (Gewin, 
Circuit Judge, concurring); Griffin v. Congress of Racial 
Equality, 1963, 221 Fed. Supp. 899; cf. United States v. 
United Klans, Knights of the Ku Klux Klan, Inc., 1961, 
194 Fed. Supp. 897; cf. Kelly v. Page, 1964 (C. C. A. 5), 
335 Fed. 2d 114.

D. No lack of due process is involved for lack of evi­
dence to show the violation of such parts of such injunc­
tion. Poliafico v. United States, 237 Fed. 2d 97, 104 (C. A. 
6, 1956); cert. den. 352 IT. S. 1025, 77 S. Ct. 590, 1 L. Ed. 
2d 597; Blumenthal v. United States, 332 IT. S., pages 539, 
559, 68 Sup. Ct. 248, 257; United States v. Rosenberg 
(C. C. A. 2, 1952), 195 Fed. 2d 583, 600, 601, cert, denied, 
344 F. S. 838, 73 S. Ct. 20, 21, 97 L. Ed. 652, reh. denied, 
344 IT. S. 889, 73 S, Ct. 134, 180, 97 L. Ed. 687, reh. denied 
347 IT. S. 1021, 74 S. Ct. 860, 98 L. Ed. 1142, motion de­
nied 355 U. S. 860, 78 S. Ct. 91, L. Ed. 2d 67; In Re Debs, 
1895, 158 U. S. 564, 15 S. Ct. 900.



— 27

III.
Considering matters presented in I and II, we submit 

the constitutionality of Ordinance 1159 is not an issue 
which is appropriately required to be determined in this 
case, especially in view of the fact that its constitutional­
ity has not been passed upon by the Supreme Court of 
Alabama which granted certiorari and has under review 
the decision of the Alabama Court of Appeals rendered 
on such ordinance in Shiuttlesworth v. City, 43 Ala. App. 
68, 180 So. 2d 114 (Petitioners brief, page 10, Footnote 7).

IV.
The trial court and the Alabama Supreme Court con­

sidered the defiant news releases and statements in their 
relationship to the conspiracy to violate the injunction, 
and as evidence of intent to wilfully violate without first 
moving to dissolve it. In its context of apparent intent to 
intimidate and exert pressure on the trial court, it was the 
feeling of counsel for the City that such acts constituted 
a basis to support the conviction of those involved but the 
Alabama Courts refused to so deal with the news release 
and related statements.

The convictions of petitioners were for a conspiracy to 
violate the injunction, it is therefore not necessary to the 
validity of such convictions that each petitioner is proven 
to have participated in each stage or every overt act in 
its consummation where the evidence discloses he was a 
participant in and a part of the over-all conspiracy.

Each conspirator is guilty in equal degree for “all that 
may be or has been done” whether he entered the con­
spiracy at the beginning or later. Poliaftco v. United 
States, 237 Fed. 2d 97, 104 (C. C. A. 6, 1956); cert. den. 
352 TJ. S. 1025, 77 S. Ct. 590, 1 L. Ed. 2d 597; Blumenthal 
v. United States, 332 U. S., pages 539, 559, 68 Sup. Ct. 
248, 257; United States v. Rosenberg (C. C. A. 2, 1952),



195 Fed. 2d 583, 600, 601, cert, denied 344 U. S. 838, 73 
S, Ct. 20, 21, 97 L. Ed. 652, ret. denied, 344 U. S. 889, 73 
S. Ct. 134, 180, 97 L. Ed. 687, reh. denied 347 U. S. 1021, 
74 S. Ct. 860, 98 L. Ed. 1142, motion denied 355 U. S. 860, 
78 S. Ct. 91, L. Ed. 2d 67; In Re Debs, 1895, 158 U. S. 564, 
15 S. Ct. 900:

The penalty assessed showed no distinction between 
the principals who made the defiant statements and gave 
out the defiant news releases and those who had lesser 
facts in the conspiracy to violate the injunction.

Certainly these petitioners were deprived of no con­
stitutional rights to influence the reversal of the Alabama 
Supreme Court in connection with such verbal acts in 
consummation of the conspiracy.

y .

The evidence in the record is adequate to sustain the 
convictions of petitioners Fisher and Hayes, both of whom 
are members of A. C. M. H. R., a party to the injunction 
suit, and although they had not been served with the writ 
knew of it prior to its violation. The evidence and infer­
ences to be drawn therefrom leads to a conclusion they 
had notice or knowledge of what acts it prohibited, as the 
Alabama Supreme Court found. The doctrines of Thomp­
son v. Louisville, 362 U. S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 
654; Fields v. City of Fairfield, 375 U. S. 248, only apply 
when there is complete lack of evidence from which an 
inference could be drawn to support the convictions. On 
certiorari the ordinary practice of this Honorable Court 
is not to review the weight or sufficiency of the evidence. 
Whitney v. California, 274 U. S. 397, 47 S. Ct. 641, 71 L. 
Ed. 594; Milk Wagon Drivers Union v. Meadowmoor 
Dairies, 312 U. S. 287, 61 S, Ct. 552, 85 L. Ed. 836; Port­
land R. L. and P. Co. v. Railroad Commission, 229 U. S. 
397, 33 S. Ct. 829, 57 L. Ed. 1248.



—  29 —

ARGUMENT.

I.

The Convictions Should Be Affirmed on the Rule of 
HOWAT v. KANSAS and MINE WORKERS With­
out Reaching Constitutional Issues Concerning Ordi­
nance 1159.

The Supreme Court of Alabama did not enter into con­
sideration of the alleged invalidity of Sec. 1159 of the 
City C'ode of Birmingham. The case was decided on what 
we believe is an adequate state ground. The injunction 
order, issued by a circuit judge in equity, who was 
clothed with constitutional and statutory jurisdiction11 
to issue an injunction in a case arising with respect to 
matters and parties physically within its jurisdiction.

In Howat v. Kansas, 258 U. S. 181, 42 S. Ct. 277, relied 
upon by the Alabama Supreme Court, the United States 
Supreme Court in a unanimous opinion written by Mr. 
Chief Justice Taft in Case No. 491, one of the two cases

11 Both are quoted in the Alabama Supreme Court Opinion 
(R. 439) and are as follows: “See. 144. A circuit court, or a 
court having the jurisdiction of the circuit court, shall be held 
in each eounty in the state at least twice in every year, and 
judges of the several courts mentioned in this section may hold 
court for each other when they deem it expedient, and shall do 
so when directed by law. The judges of the several courts men­
tioned in this section shall have power to issue w rits of injunc­
tion, returnable to the courts of chancery, or courts having the 
jurisdiction of courts of chancery.”

Ҥ, 1038. Injunctions may be granted, returnable into any of 
the circuit courts in this state, by the judges of the supreme 
court, court of appeals, and circuit courts, and judges of courts 
of like jurisdiction.”

Ҥ 1039. Registers in circuit court may issue an injunction, 
when it has been granted by any of the judges of the appellate 
or circuit courts when authorized to grant injunctions, upon the 
fiat or direction of the judge granting the same indorsed upon 
the bill of complaint and signed by such judge.”



30 —

decided, review of a contempt conviction in the courts of 
Kansas was sought. The injunction issued to enjoin a 
strike in the mining industry. Petitioners alleged the 
Industrial Court Act of Kansas “ was void because in 
violation of the federal constitution and the rights of de­
fendants thereunder, and so the court was without power 
to issue an injunction as prayed.” 258 U. S. at pages 187- 
188. The position of the Kansas Supreme Court was that 
the defendants were precluded from such attack in a col­
lateral contempt proceeding.

The U. S. Supreme Court agreed (258 U. S., at pages 
189-190):

“ An injunction duly issuing out of a court of gen­
eral jurisdiction with equity powers, upon pleading 
properly invoking its action, and served upon persons 
made parties therein, and within the jurisdiction, 
must be obeyed by them, however erroneous the ac­
tion 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 va­
lidity of the law, and until its decision is reversed 
for errors by orderly review, either by itself or by a 
higher court, its orders based on its decision 
are to be respected, and disobedience of its law­
ful authority to be punished. Gompers v. Bucks 
Stove & Range Co., 221 U. S. 418, 450, 31 Sup. Ct. 
416, 55 L. Ed. 797, 34 L. R, A. (U. S.) 874; Toy Toy 
v. Hopkins, 212 U. S. 542, 541, 29 Sup. Ct. 416, 53 
L. Ed. 644. See also United States v. Shipp, 203 U. S. 
563, 27 Sup. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265

As the matter was disposed of in the State Courts 
on principles of general, and not federal law, we have 
no choice but to dismiss the writ of error as in No. 
154.”



31 —

Mr. Chief Justice Vinson, in United States v. United 
Mine Workers, 330 U. S. 258, 67 8. Ct. 677, quotes with 
favor the first paragraph above quoted from Howat v. 
Kansas, concerning the duty to obey an injunction though 
it may be based upon an unconstitutional or void law, 
and concludes:

“ Violations of an order are punishable as criminal 
contempt even though the order is set aside on ap­
peal, Warden v. Searls, 121 U. S. 14, (1887), or 
though the basic action has become moot, Gompers v. 
Buck Stove & Range Co., 221 U. 8. 418 (1911).” (330 
U. 8. 258, 293, 294.)

The Alabama Supreme Court also relied upon the 
United Mine Workers case and quoted at length from it 
(R. 440-444). It also cited the concurring opinion of Mr. 
Justice Harlan in In Re Green, 369 U. S. 689, 693 (R. 444).

In Re Green is cited and relied upon by petitioners un­
der Sections I and II of their brief in substantial effect 
that this case in some way weakens the application of 
Howat v. Kansas, 258 U. S. 181, and United Mine Work­
ers. We do not feel Re Green in any way conflicts with 
the result reached by the Alabama Supreme Court in ap­
plying the doctrine of Howat v. Kansas and United Mine 
Workers to the instant case.

In Green, a member of the bar was sentenced to jail 
and fined for contempt. When advised by the clerk an 
injunction had been requested, he expressed his desire for 
a hearing for which he was ready at any time. The in­
junction was nevertheless issued ex parte. He then im­
mediately asked for a hearing; but none was granted. At 
the time the ex parte injunction was granted, the union 
had on file with the National Labor Relations Board a 
charge of an unfair labor practice concerning the same 
controversy, but no hearing had been held on it.



— 32

Petitioner believed under Ohio law the injunction was 
invalid because issued without a hearing and also because 
the controversy was one for the National Labor Relations 
Board and not for the state court. He therefore advised 
the union officials the injunction was invalid and the best 
way to contest it was to continue the picketing and to ap­
peal or test any order of commitment for contempt by 
habeas corpus. Green was held in contempt for giving this 
advice and although he was not allowed to testify in his 
defense at the contempt hearing he offered to testify that, 
“ I was convinced that both the judge and Mr. Ragan (op­
posing counsel) were aware that I had consented to bring 
these men before the court and stipulate the essential mat­
ters for the express purpose of testing the validity of the 
court’s order and its jurisdiction over the subject matter.’'

The majority opinion of this Honorable Court com­
mented upon the conviction without a hearing and the 
evils thereof, but also did refer to Mine Workers, and dis­
tinguish it on the authority of Amalgamated Association 
of St. Elec, Ry. & Motor Coach, etc. v. Wisconsin Employ­
ment Relations Board, 340 U. S. 383, 71 S. Ct. 359, 95 L. 
Ed. 364, as holding that a state court is without power to 
hold one in contempt for violating an injunction that the 
state court had no power to issue by reason of federal stat­
utory pre-emption.

We respectfully contend that cases such as In Re Green1- 
and Amalgamated Association, etc. v. Wis. Emp, Rel. Bd., 12

12 Footnote 1 on page 693 of 369 U. S. mentions the fact tha t 
Mr. Chief Justice Vinson wrote the opinion in Mine Workers 
and also Amalgamated Association, etc. This is to emphasize 
the point th a t the doctrine of the first case does not conflict 
with the second. However, there is another distinction between 
the two cases other than  th a t the former dealt w ith a federal 
court order, and the latter, a state order, in a controversy as to 
which Congress had pre-empted the field, where if the federal 
policy is to prevail, federal power must be complete. In Mine 
Workers criminal contempt was involved in the pertinent ques-



— 33

supra, dealing with the doctrine of federal pre-emption and 
where no intent to flout the authority of the court was in­
volved, do not in any way resemble and have no applica­
tion to cases circumstanced as the instant one, where no 
federal pre-emption statute is involved and where the in­
junction order issued to protect lives and property, a mat­
ter of state concern and state court jurisdiction,13 was 
openly defied and violated, and its authority flouted, with­
out seeking its dissolution or discharge, and circumstances 
of mob violence, resulting in personal injury and property 
damage.

Petitioners suggest the Mins Workers decision should be 
distinguished, limited, or overruled. Howat v. Kansas also 
relied upon by the Alabama Supreme Court is obviously 
directly in point to require the denial of their petition for 
writ of certiorari.

The principal significance of Mine Workers is the stamp 
of approval it places on Howat v. Kansas. We have here­
inabove discussed our position that neither the Wisconsin 
case, nor In Re Green, supra, decided since Mine Workers, 
conflict with the state ground doctrine of Howat v. Kansas, 
limiting certiorari review of convictions for criminal con-

tion, 330 U. S. a t 293, 294. In  Amalgamated Association the 
order was to recall the strikers to their jobs. The Wisconsin 
Supreme Court expressly held the contempt conviction was for 
the benefit of the Wisconsin Board and was referred  to as 
“wilful and contumacious civil contempt,” 258 Wis. 1, 44 N. W. 
2d 547, a t page 550.

13 M atters related  to the preservation of law and order in a 
local community are under our federal system m atters for local 
authorities and of local court jurisdiction. City of Greenwood 
v. Peacock, 86 S. Ct. 1800, 384 U. S. 808, 1966, dealing with re- 
mandment of a removal of state court criminal prosecutions in 
which the Court sa id : “First, no federal law confers an abso­
lute righ t on private citizens, on civil rights advocates, on Ne­
groes, or on anybody else, to obstruct a public street, to con­
tribute to the delinquency of a minor, to drive an automobile 
w ithout a license, or to bite a policeman. Second, no federal 
law confers immunity from state prosecution on such charges.”



34 —

tempt in the absence of any orderly attempt to dissolve or 
discharge a temporary injunction before committing wilful 
and defiant contempt, to the bare question of the general 
authority of the court to issue an injunction without con­
sidering the constitutional validity of an ordinance upon 
which the injunction is based.

The thrust of petitioners argument I is denial of due 
process of law and equal protection of the laws by the 
failure of the trial court to admit evidence that Ordinance 
1159 was discriminatorily applied before the injunction 
was issued. Of course, this simply means a contention 
that the ordinance as applied by the City is unconstitu­
tional. This could only be shown by evidence going to the 
merits of the injunction suit.

In the absence of any appropriate measures to dissolve 
or modify the temporary injunction, the trial court prop­
erly concluded the only issues before it were its jurisdic­
tion over the subject matter invoked by a bill of com­
plaint properly making parties within the jurisdiction 
respondents14 and whether the injunction was wilfully vio­
lated by the respondents, with knowledge or notice of the 
injunction.

The Alabama Supreme Court also agreed with this posi­
tion in its opinion and expressly held the question of the

14 The tria l court made two statem ents on this subject. The 
first, from page 140 of the Record re a d s : “The C o u rt: The only 
question I can see about the jurisdiction of the Court is 
whether the Court is an equity court and whether or not these 
parties who are present were served and were notified of this 
injunction, whether they were in the jurisdictional territo ry  
th a t this court embodies; the only question is whether they got 
notice and then whether or not the injunction th a t was issued 
was issued by a judge who had the equity authority  to issue 
an injunction, and then whether or not they knowingly vio­
lated this injunction. Your motion will be overruled.” In  its 
opinion and decree the tria l eourt made a statem ent of similar 
im port (R. 422). Please also see ante, page 19.



— 35 —

constitutionality vel non of the ordinance was not an issue 
for its consideration, following the principle stated in 
Howat v. Kansas, 258 U. S. 181, and United Mine Workers 
(E. 440-444). This principle has received almost universal 
adherence, both in Federal and State Courts.15

Adequate state ground supporting- these convictions 
without reaching the question of whether the ordinance 
was or was not constitutional is fully established by these 
and other authorities, both in Alabama and elsewhere as 
we noted above. But it is argued the Alabama Court in­
junction was void for failure to allow assertion of an al­
leged federal constitutional defense in that such evidence 
was excluded as it related to matters occurring prior to 
the injunction.

A.
The Alabama court had jurisdiction to determine its ju­

risdiction.
The temporary injunction was not void.
The argument of petitioners last above mentioned is in 

conflict with the rule of Shipp v. United States, 1906, 203 
U. S. 563, 27 S. Ct. 165, supra; United Mine Workers; 
Howat v. Kansas, 1922, 258 U. S. 181, supra, and many oth­
ers which hold that where a temporary injunction or re­
straining order is issued, criminal contempt conviction 
will be upheld where intentionally violated without seek­
ing its dissolution or dismissal. The reason is that a court 
of equity has jurisdiction on a bill filed seeking an injunc-

15 In  Corpus Juris, Vol. 32, a t page 482, note 13, starting 
with Howat v. Kansas, 258 U. S. 181, cases from some 30 states 
and other Federal cases are cited in support of this proposi­
tion. These authorities are supplemented in 43 C. J. S., a t page 
1007, note 65. Note 65 is cited to support the statem ent: 
“W here the court had jurisdiction, the fact th a t the injunction 
or restraining order, or the order for the same is merely er­
roneous, or was improvidently granted as irregularly  obtained, 
is no excuse for violating it.”



36 —

tion to determine its jurisdiction, even though it may ulti­
mately determine it has no such jurisdiction, and such 
injunction must be obeyed. Mr. Chief Justice Vinson, speak­
ing for the majority in United Mine Workers, cited with 
approval Garter v. United States, 1943 (C. A. 5), 135 Fed. 
2d 858. There a criminal contempt conviction was upheld 
although the issuing court was determined to have no 
jurisdiction to issue the injunction which enjoined a labor 
leader from certain activities such as picketing and inter­
fering with deliveries to a restaurant in New Orleans, Lou­
isiana where a labor dispute was in progress. The Court 
of Appeals held the District Court was without jurisdic­
tion to issue the injunction but, relying upon Shipp V. 
United States, 203 U. S. 563, 27 S. Ct, 165, supra, said:

“ The order was, while it lasted, a lawful one, such 
as a District Court of the United States in the exer­
cise of its equity powers could make, pending a hear­
ing of a doubtful question of jurisdiction. The question 
of jurisdiction was not frivolous. It had never before 
been decided. . . . The District Court concluded it had 
jurisdiction, and if appeal had not been taken, Carter 
would have been bound by the judgment. We have 
reversed that conclusion, but we think the restraining 
order made to preserve the subject of litigation, to- 
wit: Coumanis’ business, pending a hearing was not 
by the reversal rendered unlawful or void. The United 
States may punish wilful disobedience of it. We have 
sustained a similar temporary order as a basis for 
punitive contempt proceedings, though the law under 
which the suit was alleged to arise proved to be un­
constitutional, in Locke v. United States, 5 Oir., 75 
Fed. 2d 157. See also Howat v. Kansas, 258 U. S. 181, 
42 S. Ct. 277, 66 L. Ed. 550.”

In Blake v. Nesbet, 1905, 144 Fed. 279, 283, 284, also 
cited with favor by Mr. Chief Justice Vinson in Mine



37 —

Workers, a similar question arose. The definition of the 
word “ jurisdiction” was stated. “ Jurisdiction is the power 
to hear and determine a cause. The authority by which 
judicial officers take cognizance and decide cases” . The 
Court, at page 284, went on to quote State ex rel. Carroll 
v. Campbell et al., 25 Mo. App., loc. cit. 639, Lewis, P. J., 
as follows:

“ The return avers that, on the face of the record, it 
appears that the case is not one in which an injunction 
should ever have issued, and that the relator was never 
entitled to an injunction on the facts stated. If this 
proposition were true, it would be wholly irrelevant 
and immaterial to the matter in hand. That an injunc­
tion was, in fact, granted by a competent authority, 
held to be such under the laws of this state, is sufficient 
to render the defendants liable as for a contempt, if 
they have willfully disobeyed it, as the information 
charges.”

The court also referred to the many authorities sustain­
ing- this principle of law. On the same page appears a 
quotation from 10 American & Eng'. Enc. of Pleading & 
Practice:

“ It is wTell settled, and the books are full of cases 
holding, that a defendant who has disobeyed an in­
junction cannot justify his disobedience by showing 
that the injunction was improvidently or erroneously 
granted or irregularly served; and that if the injunc­
tion has been improperly allowed the only remedy is 
by a motion to vacate or dissolve it.”

Further on the question of jurisdiction, the court said:
“ In Clark v. Burke, 163 111. 334, 45 N. E. 235, it 

was held that in an attachment for contempt in fail­
ing to obey an order of the court the respondent may 
question the order which he is charged with refusing



— 38

to obey only in so far as he can show it to be abso­
lutely void for want of jurisdiction either of the 
party, the subject-matter, or the authority to pro­
nounce the particular judgment. See, also, Kerfoot 
v. People, 51 111. App. 410; Tolman v. Jones, 114 111. 
147, 28 N. E. 464; Billard v. Erhart, 35 Kan. 616, 12 
Pac. 42; William Rogers Mfg. Co. v. Rogers, 38 Conn. 
121; Woodward v. Lincoln, 3 Swanst. 626; Nether- 
wood v. Wilkinson, 33 Eng. L. & Eq. 297; People v. 
Bergen, 53 N. Y. 405; Kaehler v. Halpin, 59 Wis. 40, 
17 N. W. 868; Moat v. Holbein, 2 Edw. Ch. (N. Y.) 
188.” 144 Fed. at page 283.

The Alabama Supreme Court has without exception ad­
hered to the principle established by Mine Workers and 
the cases cited with approval therein, since it was decided 
March 6, 1947. In fact, it was followed in Ex Parte 
Hacker, June 12, 1947, 250 Ala. 64, 33 So. 2d 324, 337, 
a case pending in the Alabama Supreme Court when the 
decision in Mine Worders was rendered. This case and 
the companion case, Hotel and Restaurant Employees v. 
Greenwood, 249 Ala. 265, 30 So. 2d 696, Cert. Den. 322 
U. S. 847, 68 S. Ct. 349, will be more fully discussed in 
Section B, following.

That petitioners, or at least the principal persons, Dr. 
King, Rev. Walker, Rev. Shuttlesworth, Rev. Abernathy, 
and Rev. A. D. King, who was also present, knew the 
proper way to test the validity of the injunction was to 
move to dissolve it. This was discussed at the news con­
ference on the morning of April 11th (R. 252). But they 
deliberately chose to violate it without filing such motion.

Further under Alabama Supreme Court Rule 47 (App. 
pages 76-77, appeal from any decree rendered by the trial 
court on such motion is preferred and the ordinary rules 
may be suspended to expedite review by the Alabama 
Supreme Court.



39 —

B.
The principle above stated in I has been applied in cases 

involving1 First and Fourteenth Amendment freedoms.
In Howat v. Kansas (1922), 258 U. S. 181, supra, the 

injunction was issued against Howat and 150 members 
of the United Mine Workers of America, District 14, on 
a bill of complaint charging them with a conspiracy to 
call a strike in violation of the laws of Kansas and par­
ticularly the Court of Industrial Relation Act of that 
state. The injunction was to enjoin respondents “ from di­
recting, ordering or in any manner bringing about the hin­
dering, delaying, interference with or a suspension of the 
operation of any coal mines . . .” . 258 U. S. at page 188.

While the permanent injunction was attacked as void 
for violation of the Federal Constitution and rights of 
respondents thereunder, no specific parts of the Consti­
tution are named. However, it is obvious that the sweep­
ing ambit of the injunction included a violation of the 
Thirteenth Amendment, as well as the First and Four­
teenth, restraining peaceful picketing, peaceful assembly 
and peaceful persuasion, in connection with a labor con­
troversy. These are protected under many decisions of 
this Honorable Court, including Thornhill v. Alabama, 
310 U. S. 88, 60 S. Ct. 736.

Another case of similar import is Local 333 B, United 
Marine Division of Int. Longshoremen Assn. v. Common­
wealth of Virginia, 1952, 193 Va. 773, 71 S. E. 2d 159, 
cert, denied, 344 U. S. 893, 73 S. Ct. 212. In this case 
also the temporary injunction restrained respondents from 
engaging in strike or work stoppage until it had com­
plied with certain provisions of the Virginia Public Utili­
ties Labor Act, which respondents claimed was not ap­
plicable to them and also in contempt proceedings for 
violation of the injunction without moving to dissolve it, 
claimed the act was unconstitutional. The trial court



40 —

refused to allow this defense to be raised in the contempt 
proceeding because it constituted a collateral attack upon 
a judgment- of a court of competent jurisdiction,16

It is also worthy of note that Schwartz v. United States, 
1914 (CCA-4), 217 Fed. 866, cited with approval by Mr.

16 The V irginia Supreme Court of Appeals, relying upon and 
quoting from Ilow at v. Kansas and United States v. Mine W ork­
ers fu rther stated  at pages 165 and 166:

“The general rule is th a t where a court has jurisdiction of 
the parties and the subject m atter to pronounce a judgm ent, 
such judgm ent cannot be attacked collaterally even if the s ta t­
ute upon which it is based is la ter declared to be unconstitu­
tional. In  Howat v. Kansas, 258 U. S. 181, 189, 42 S. Ct. 277, 
280, 66 L. Ed. 550, Chief Justice Taft said: ‘An injunction duly 
issuing out of a court of general jurisdiction with equity pow­
ers, 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. I t  is for the court of first instance to determine the 
question of the validity of the law, and until its decision is re ­
versed for error by orderly review, either by itself or by a 
higher court, its orders based on its decision are to be re ­
spected, and disobedience of them is contempt of its lawful 
authority, to be punished. Gompers v. Bucks Stove & Range 
Co., 221 U. S. 418, 450, 31 S. Ct. 492, 55 L. Ed. 797; Toy Toy v. 
Hopkins, 212 U. S. 542, 548, 29 S. Ct. 416, 53 L. Ed. 644. See 
also United States v. Shipp, 203 U. S. 563, 573, 27 S. Ct. 165, 
51 L. Ed. 319. . . .

Mr. Chief Justice Vinson, in U. S. v. United Mine W orkers 
of America, 330 U. S. 293, 67 S. Ct. 677, 696, 91 L. Ed. 884, 
said: '* * * we find impressive authority  for the proposition 
tha t an order issued by a court with jurisdiction over the sub­
ject m atter and person must be obeyed by the parties until it 
is reversed by orderly and proper proceedings. This is true 
w ithout regard  even for the constitutionality of the Act under 
which the order is issued.’ In  support of this principle the 
Chief Justice cited the following eases: Howat v. Kansas, 258 
U. S. 181, 42 S. Ct. 277, 66 L. Ed. 550; Russell v. United States, 
8 Cir., 86 F. 2d 389; Locke v. United States, 5 Cir., 75 F. 2d 
157; O’Hearne v. United States, 62 App. D. C. 285, 66 F. 2d 
933; Schwartz v. United States, 4 Cir., 217 F. 866; Brougham 
v. Oceanic Steam Navigation Co., 2 Cir., 205 F. 857; Blake v 
Nesbet, 8 Cir., 144 F. 279.”

71 S. E. 2d at pages 165, 166.



41

Chief Justice Vinson in Mine Workers involved convic­
tion for aiding and abetting striking miners who had 
been enjoined from striking in the violation of the in­
junction by furnishing them with a place of meeting 
near the mines. The miners were obviously enjoined from 
peaceful persuasion or free speech and from assembly, 
both well recognized First and Fourteenth Amendment 
Freedoms. On the defense offered to the contempt pro­
ceeding by respondent that the court exceeded its power 
in issuing the injunction, the court said (217 Fed. at page 
869):

“ There is no force in the position that the judg­
ment should be reversed because the court exceeded 
its power in adjudging the defendant guilty of con­
tempt for furnishing a meeting place for organizers 
of the United Mine Workers of America and others, 
and thus aided them in inducing by force, threats, 
intimidation, and persuasion the employees of West 
Virginia-Pittsburg Coal Company to quit work. It 
is true that the judgment for contempt, as well as 
the order of injunction, will be set aside on writ of 
error, when the trial court had no jurisdiction to 
make the order of injunction. In re Rowland, 104 
U. S. 604, 26 L. Ed. 861; In re Fisk, 113 U. S. 713, 
5 Sup. St. 724, 28 L. Ed. 1117; In re Sawyer, 124 
U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402; United States 
v. Shipp, 203 U. S. 563, 27 Sup. Ot. 165, 51 L. Ed. 
319, 8 Ann. Cas. 265. But that condition is not pre­
sented here. The court had jurisdiction of the subject- 
matter—the protection of the West Virginia-Pitts­
burg Coal Company in its property rights—and of 
the defendant, who had appeared in the cause to 
answer the charge that he had unlawfully interfered 
with those rights” (Emphasis added).

However, the court cited its earlier case, John Mitchell 
et al. v. Hitchman Coal & Coke Company, 214 Fed. 685,



—  42

131 CCA 425, recognizing that the injunction violated 
their rights (constitutional rights under Thornhill v. Ala­
bama, 310 U. S. 88, we interpolate) in enjoining the pro­
motion of a labor union by persuasion and other peaceful 
means. The Court of Appeals stated that had the order 
issuing the injunction been properly attacked in the in­
junction suit on appeal from an adverse decree of the 
District Court, it would have been modified in his behalf.

In Hotel and Restaurant Employees, etc. v. Greenwood,
249 Ala. 265, 30 So. 2d 696, cert. den. 322 U. S. 847, 68 
S. Ct. 349, the Supreme Court of Alabama in a case on 
appeal from a decree enjoining a strike and peaceful 
picketing incident thereto, when the strike was for a 
lawful purpose, at 30 So. 2d, page 700, said:

“ The limit of judicial authority to restrain a strike 
without impairment of the freedoms guaranteed by 
the several amendments to the federal constitution 
is to be determined by the lawfulness of the object 
aimed at and the manner in which the strike is con­
ducted. If the object is within the scope of union 
activity, that is, reasonably related to wages, hours 
or other conditions of immediate employment and 
is lawfully and peaceably carried out and not attended 
with violence or other unlawful acts, it should not 
be subjected to judicial restraint. This principle, as 
we view it, is implicit in the guarantee of the Four­
teenth Amendment to our federal constitution as an 
incident of freedom of speech, as lately declared by 
decisions of the United States Supreme Court. Thorn­
hill v. State of Alabama, 310 U. S. 88, 60 S. Ct. 736, 
84 L. Ed. 1093; American Federation of Labor v. 
Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855; 
Steiner v. Long Beach Local, supra.”

The Supreme Court of Alabama reversed the injunction 
decree because it violated the Constitutional guarantees 
of freedom of speech and assembly of the respondents.



— 4 3 -

However, in the companion case, Ex Parte Hacker 
(June, 1947), 250 Ala. 64, 33 So. 2d 324, 337, that court 
in reliance upon United Mine Workers, reversed convic­
tion of civil contempt for violating the Greenwood injunc­
tion, which was held to be unconstitutional and invalid. 
However, the Alabama Court also held that the required 
reversal of the civil contempt conviction “ did not stand 
in the way of any proceeding for criminal contempt and 
is without prejudice in regard thereto” (33 So. 2d at 
page 337).

The same result was reached in Fields v. City of 
Fairfield, 273 Ala. 588, 143 So. 2d 177, reversed on other 
grounds in 375 U. S. 248, where the Alabama Supreme 
Court relied upon Howat v. Kansas, 258 U. S. 181, and 
United States v. United Mine Workers, 330 U. S. 258. 
In that case the Alabama Supreme Court held Fields 
could not attack in collateral proceedings the unconstitu­
tionality of a Fairfield ordinance which provided “ It 
shall be unlawful for any person or persons to hold a 
meeting in the City of Fairfield without first having ob­
tained a permit from the Mayor to do so.”

It is obvious that freedom of assembly and freedom 
of speech were involved. But the Alabama Court held 
the constitutionality of the ordinance could not be raised 
in the collateral certiorari review from the criminal con­
tempt conviction for violating the temporary injunction.

The Court did say the jurisdictional requirements were 
sufficient to sustain the jurisdiction of the court to issue 
the injunction and such order was not void on its face. 
However, it is obvious that the Alabama Court did not 
mean by the latter statement to entrench upon the funda­
mental rule applicable to temporary injunctions as stated 
in Howat v. Kansas and United Mine Workers,17

17 We think it is more logical to conclude the Alabama Court 
only meant by the expression “not void on its face” th a t the



44 —

Submission is that insofar as the injunction decree could 
be said to be based upon the alleged unconstitutionality of 
Ordinance 1159, whether or not the ordinance is uncon­
stitutional or has been unconstitutionally applied prior to 
the issuance of the temporary injunction are not issues 
before this Honorable Court to sustain reversal of the 
contempt convictions of petitioners. Mine Workers' and 
Howat v. Kansas, and multitude of cases, state and fed­
eral, following them rest upon principles that form a bed 
rock upon which our civilization must stand.

C.
Respect for the law and the courts of the land is funda­

mental to the protection of minorities and majorities alike, 
without it no constitutional rights can endure.

Much has been written of the high place respect for the 
laws and courts of the land must have if our free demo­
cratic society is to be preserved for the common welfare 
of minority groups and majority groups alike. Mr. Justice 
Frankfurter, concurring in United States v. United Mine 
Workers, 330 U. S. at page 312, stated:

“ There can be no free society without law admin­
istered through an independent judiciary. If one man

injunctive decree was not based on a frivolous assumption of 
jurisdiction. Please note the language of Mr. Justice F ran k ­
fu rte r in his concurring opinion in Mine W orkers, 330 U. S. at 
pages 309, 310: “Only when a court is so obviously traveling 
outside its orbit as to be merely usurping judicial forms and fa ­
cilities, may an order issued by a court, be disobeyed and treated  
as though it were a le tter to a newspaper. Short of an in­
disputable w ant of authority  on the p art of a court, the very 
existence of a court presupposes its power to entertain  a con­
troversy, if only to decide after deliberation, th a t it  has no 
power over the particu lar controversy. W hether a defendant 
may be brought to the bar of justice is not for the defendant 
himself to decide.

To be sure, an obvious lim itation upon a court cannot be cir­
cumvented by a frivolous inquiry into the existence of a power 
th a t has unquestionably been withheld.”



45

can be allowed to determine for himself what is law, 
every man can. That means first chaos, then tyranny. 
Legal process is an essential part of the democratic 
process. For legal process is subject to democratic 
control by defined, orderly ways which themselves are 
part of law. In a democracy, power implies responsi­
bility. The greater the power that defies law the less 
tolerant can this Court be of defiance. As the Nation’s 
ultimate judicial tribunal, this Court, beyond any other 
organ of society, is the trustee of law and charged 
with the duty of securing obedience to it.”

In Gompers v. Bucks Stove and Range Company, 221
U. S. 418, 31 S. Ct. 492, at page 501, we find:

“ If a party can make himself a judge of the valid­
ity of orders which have been issued, and by his own 
act of disobedience set them aside, then are the courts 
impotent, and what the Constitution now fittingly calls 
the ‘judicial power’ of the United States would be 
a mere mockery.”

In a context of the use of the streets by minority groups, 
Mr. Justice Black in his dissent in Cox v. Louisiana, 379 
U. S. 536, 559, 583, 584, 85 S. Ct. 453, 471, uses this lan­
guage :

“ The streets are not now and never have been the 
proper place to administer justice. Use of the streets 
for such purposes has always proved disastrous to 
individual liberty in the long run, whatever fleeting 
benefits may have appeared to have been achieved. 
And minority groups, I venture to suggest, are the 
ones who always have suffered and always will suffer 
most when street multitudes are allowed to substitute 
their pressures for the less glamorous but more de­
pendable and temperate processes of the law. Ex­
perience demonstrates that it is not a far step from 
what to many seems the earnest, honest, patriotic, 
kind-spirited multitude of today, to the fanatical,



—  46 —

threatening, lawless mob of tomorrow. And the 
crowds that press in the streets for noble goals today 
can be supplanted tomorrow by street mobs pressuring 
the courts for precisely opposite ends.

Minority groups in particular need always to bear 
in mind that the Constitution, while it requires States 
to treat all citizens equally and protect them in the 
exercise of rights granted by the Federal Constitution 
and laws, does not take away the State’s power, in­
deed its duty, to keep order and to do justice accord­
ing to law. Those who encourage minority groups to 
believe that the United States Constitution and fed­
eral laws give them a right to patrol and picket in 
the streets whenever they choose, in order to advance 
what they think to be a just and noble end, do no 
service to those minority groups, their cause, or their 
country. ’ ’

Former Justice Whitaker, resigned, in discussing the 
evils of so-called “ civil disobedience” and disrespect for 
law in the civil rights “ movement” in a recent speech 
calls attention to the fact that in his opinion sympathy 
for a minority group because of conditions in some sec­
tions of our country has caused many to mistakenly con­
done and possibly encourage such “ civil disobedience” 
with its concomitant attitude of disobedience to court 
orders as well as lack of respect for the law.

The underlying thought of the speech was that the 
harvest reaped in a large measure was street violence, 
disregard for law, rioting, bloodshed, arson and destruc­
tion of property. The prevalence of such disorder during 
the last year or so has reached such proportions that it is 
judicially noticeable. The President of our great country 
was moved to take cognizance of such widespread violence 
and disorder. Speaking of riots in New York, Cleveland, 
Chicago, and other cities, mostly not in the South, he is



47 —

quoted in the press as having said in a speech in July, 
1966, in Indianapolis:18

“ Riots in the streets do not bring about lasting 
reforms. They tear at the very fabric of the com­
munity. They set neighbor against neighbor and 
create walls of mistrust and fear between them. They 
make reform more difficult by turning away the very 
people who can and must support them.”

The Mayor of Chicago, commenting on the presence of 
petitioner, Martin Luther King, in Chicago charged King’s 
staff was fomenting the disorder in Chicago and trained 
youngsters in the making of fire bombs and “ were in 
Chicago for no other purpose than to bring disorder to 
the streets of Chicago.” 19

Section I of our argument is to the point that, treating 
this case as simply one where the only charge made in the 
bill of complaint was the violation of Ordinance 1159 by 
failure to obtain a parading permit the conviction of peti­
tioners for criminal contempt should not be reversed on 
any ground urged in opposing briefs, whether due process, 
equal protection of the laws or freedom of speech and 
assembly because of the failure to take proper steps to 
oppose the injunction before wilfully violating it. Argu­
endo we assume no illegal conduct other than the failure 
to obtain parade permits for the marches of April 12th 
and 14th.

Opposing briefs have urged the overruling or modifica­
tion of Howat v. Kansas and Mine Workers. We urge 
retention without eroding or whittling away these funda­
mentally sound holdings.20

is Birmingham News, Ju ly  24, 1966, from press reports.
19 Birmingham News, Ju ly  16, 1966, release from Chicago.
20 “There is an added reason why we must tu rn  to the de­

cisions. ‘Great eases,’ it is appropriate to remember, ‘like hard



—  48 —

Section II of our brief will consider other aspects, the 
injunction and the illegal acts and conduct which we feel 
also justify affirmance of the contempt convictions.

II.

Aside From Violation of Ordinance 1159 the Contempt 
Conviction Should Be Affirmed on the Basis of Other 

Unlawful Conduct in Violation of the Injunction.
In Section I, we have considered only Ordinance 1159 

as a basis for the injunction, assuming no other violations 
and assuming such conduct free of any other elements of 
unlawfulness. Submission is that the contempt convic­
tions of petitioners are not vulnerable on account of the 
contentions made in briefs filed on behalf of petitioners 
and by the United States as amicus curiae on constitu­
tional grounds asserted, including lack of due process, 
equal protection of the laws, freedom of speech and as­
sembly for the additional reason that the conduct of 
which they were convicted was otherwise unlawful and 
contumacious.

A.
The conduct of petitioners was otherwise unlawful.
The events of April 12th and April 14th, and especially 

the latter, when a huge throng was gathered by the efforts 
of and under the command of the leaders of this “ move­
ment” and which took complete control of the public

cases make bad law. For great cases are called great, not by 
reason of their real importance in shaping the law of the future, 
bu t because of some accident of immediate overwhelming in ter­
est which appeals to the feelings and distorts the judgment. 
These immediate interests exercise a kind of hydraulic pressure 
which makes w hat previously was clear seem doubtful, and be­
fore which even well settled principles of law will bend.’ Mr. 
Justice Holmes, dissenting in N orthern Securities Co. v. United 
States, 193 U. S. 197, 400-401, 24 S. Ct. 436, 468, 48 L. Ed. 679.” 
Dennis v. United States (1951), 341 U. S. 494, 528, 71 S. Ct. 
857, 877, Mr. Justice F rankfurter, concurring.



49

streets of the City of Birmingham, from sidewalk to side­
walk on route to the City Hall or City Jail and formed 
a howling, cursing, violent mob, inflicting injury to per­
sons and damage to property are entirely beyond the 
scope of lawful constitutionally protected conduct.

The destination of the latter march was shrouded in 
secrecy, but whether to City Hall or City Jail would 
traverse some of the main thoroughfares in the City of 
Birmingham heavily travelled by pedestrians and motor 
vehicles. While the police kept vehicular traffic and 
whites out of the immediate area where the crowd was 
gathering, the path of this horde, when it commandeered 
the streets and started the march was calculated to 
sweep aside other pedestrians both black and white 
lawfully using the sidewalks. I t was on collision course 
with the white population which had been excluded from 
this area. I t was also incompatible with the use of the 
streets by ambulances and fire trucks and motorists en­
titled to use them.

State laws and City ordinances governing the use of 
streets and sidewalks which were being violated or their 
violation imminently threatened are listed in the appendix 
hereto, pages 77-79. Both state laws and city ordinances 
being violated require pedestrians to walk upon side­
walks, and to use the right half thereof. Title 36, Code 
of Alabama, 1940 (Rec. 1958), Section 58, subsections 
(16), (18) and (19), app. 79-80; Traffic Code of Birming­
ham, Sec. 10-3 and 10-8, app. 81-82.

The gathering of the violent mob was in conflict with 
the ordinance making it unlawful to commit any act or 
diversion “ causing or tending to a breach of the peace.” 
General City Code of Birmingham, Alabama 1944, Sec. 
311, App. 83. Also this conduct was an enjoinable public 
nuisance. Title 37, Code of Alabama 1940, Secs. 505, 506, 
App. 79-80; General City Code of Birmingham, Sec. 804, 
App. 82-83.



B.
Such unlawful conduct is not constitutionally protected 

nor immunized from punishment for contempt by the fact 
that 1159 in part supported the injunction.

The First and Fourteenth Amendments do not confer 
absolute right on minority groups to patrol, march, picket, 
or otherwise use the streets as means of communicating 
ideas whenever they choose, in order to advance what 
they think to be a just and noble cause. Cox v. Louisiana, 
379 U. S. 536, at pages 554-556, majority opinion; at pages 
583, 584, Mr. Justice Black, dissenting. Municipal au­
thorities have a duty to protect and preserve the use of 
the streets and sidewalks for the purposes for which they 
are designed for the benefit and welfare of the public. 
Cox v. State of New Hampshire, 312 U. S. 569, 61 S. Ct. 
762, 85 L. Ed. 1049.

Picketing, marching and patrolling the streets are not 
afforded the same kind of freedom of speech by the First 
and Fourteenth Amendments as those amendments afford 
those who communicate ideas by pure speech. It is only 
peaceful parades or processions, conducted with due re­
gard for the concomitant right of the use of the streets 
for the welfare of the public and with obedience to laws 
enacted to govern the conduct of all in their use, that can 
claim the protection of these amendments. Cox v. Loui­
siana, 379 U. S. 536, 554-557. Mr. Justice Goldberg struck 
down the statute involved because unbridled discretion 
was vested in a public officer to prohibit peaceful parades, 
379 U. S. 557.

At page 554 of 379 U. S., it is said:
“The constitutional guarantee of liberty implies 

the existence of an organized society maintaining pub­
lic order, without which liberty itself would be lost 
in the excesses of anarchy. The control of travel upon 
the streets is a clear example of governmental re-

— 50 —



sponsibility to insure this necessary order . . . One 
would not be justified in ignoring the familiar red 
light because this was thought to be a means of social 
protest. Nor could one, contrary to traffic regulations, 
insist upon a street meeting in the middle of Times 
Square at the rush hour as a form of freedom of 
speech or assembly. Governmental authorities have 
the duty and responsibility to keep their streets open 
and available for movement.”

The horde commandeering the street and both side­
walks in one great avalanche of humanity was not en­
gaged in a lawful activity for which it could claim any 
constitutional protection. Casting aside any question of 
failure to obtain a parade permit, this conduct in com­
plete disregard of relevant traffic laws governing the use 
of the streets for the benefit of the public as a whole was 
not protected by the Constitutional Amendments.

The formation of the violent mob with injury to persons 
and damage to property makes the entire incident even 
more certainly unprotected conduct.

Assuming arguendo: 1, that 1159 is unconstitutional; 2, 
that it was unconstitutionally applied prior to the issuance 
of injunction and that said fact renders the injunction 
void; and 3, that the rule of Mine Workers and Howat v. 
Kansas, did not apply, the convictions should nevertheless 
be affirmed.

The injunction is broader in scope than the issue relat­
ing to 1159. That was only a part. Other provisions of 
the injunction violated adequately support the contempt 
convictions. This point we shall attempt to develop in 
later subdivisions of II.

The petitioners acquired no added rights because of the 
inclusion of violation of 1159 as a part of the injunction 
suit and as one of the grounds supporting the contempt 
convictions.



52 —

The invalidity of a part of the injunction order would 
not affect the valid part, regardless of the reason for its 
invalidity. Liquor Control Commission v. McGillis, 291 
Utah 586, 65 P. 2d 1136; Kaner v. Clark, 108 111. A. 287; 
Ex Parte Tinsley, 37 Texas Cr. 507, 40 S. W. 306; In Re 
Landau, 243 N. Y. S. 732, 230 App. Div. 308, appeal dis­
missed, 255 N. Y. 567, 175 N. E. 316.

C .

The scope and purpose of the injunction was to pre­
serve law and order. They adequately support the con­
tempt convictions.

As alleged in the injunction bill of complaint, the re­
spondents named therein conspired to encourage, to com­
mit or participate in mass street parades, . . . congre­
gating in mobs upon the public streets, and other public 
places . . . violation of numerous ordinances and statutes 
of the City of Birmingham and the State of Alabama; 
that said conduct, actions and conspiracies of the said 
respondents is such conduct as is calculated to provoke 
breaches of the peace in the City of Birmingham; that 
such conduct, conspiracies and actions of said respond­
ents as aforesaid threatens the safety, peace and tran­
quility of the City of Birmingham (R. 31, 32).

Allegations of specific past instances of unlawful con­
duct included fostering, encouraging, and causing the 
formation of a mob of some 700 to 1000 Negroes to en­
courage a march upon the City Hall, which said mob 
became unruly, blocked the sidewalks and refused to obey 
lawful orders of officers of the Police Department in their 
efforts to disperse said unruly mob (R. 33, 34).

It is also alleged that the continued and repeated acts 
of respondents as alleged will cause incidents of violence 
and bloodshed (R. 35).



— 53

The prayer of the bill specifically sets forth the acts 
sought to be enjoined by relating them to the acts here­
inabove, that is the acts and conduct alleged in the body 
of the bill of complaint. These allegations of the bill 
serve to clarify its prayer for an injunction prohibiting 
engaging in, sponsoring, inciting or encouraging “ con­
gregating upon public streets or public places into mobs 
. . . performing acts calculated to cause breaches of the 
peace . . .  or from violating the ordinances of Birming­
ham and the Statutes of Alabama.” In other words, the 
prohibitions of the prayer, if not clear within themselves, 
are appropriately considered in the light of the acts al­
leged to have been committed or those threatened.

Opposition briefs urge the prohibitions of the above 
mentioned sections of the injunction are vague. We do 
not concede this to be true. Mobs, which respondents 
were prohibited from inciting, sponsoring, encouraging or 
engaging in clearly include unruly mobs such as those of 
April 12th and April 14th, the forerunner of them having 
occurred on April 7th and described in paragraph 4 (c) 
of the bill of complaint. The ordinances and statutes 
which they were prohibited from violating included traf­
fic violations and the acts tending to cause breaches of 
the peace which were enjoined obviously included those 
which were the result of or reasonably to be expected 
from the formation of a mob such as that described in 
4 (c) (R. 33, 34).

The amicus brief also suggests the possible lack of 
jurisdiction of a court of equity to issue an injunction 
of this kind and overbreadth of the injunction as well. 
In re Debs, 1895, 158 U. 8. 564, 15 8. Ct. 900, is an answer 
to both suggestions.

The authority of a court of equity to protect property 
and preserve order by an injunction which may restrain 
acts also criminal in nature is sustained in In re Debs,



—  54 —

supra, on the ground that equity may restrain a public 
nuisance. 15 S. Ct. at page 909.

It is worthy of note that the State of Alabama specifi­
cally authorizes municipalities to enjoin commission or 
continuance of public nuisances and they are made un­
lawful by city ordinance.21 However, as indicated in 
Debs, the general jurisdiction of equity is sufficient with­
out specific statutory authority. To the same effect is 
United States v. Parton, 1947 (CCA-4), 132 Fed. 2d 886, 
887. In that case the fact that the defendants were en­
gaged in conduct detrimental to but not subject to penal 
provisions of the laws enacted by Congress to protect 
Indian Wards of the government was held to be not a 
reason for denying, but as stated by the court is “ an 
additional reason for granting injunctive relief. Coosaw 
Mining Co. v. South Carolina, 144 U. S. 550, 567, 12 S. Ct. 
689, 36 L. Ed. 537” . 132 Fed. 2d at page 887.

That the state is under duty to keep order cannot be 
questioned. Cox v. State of Louisiana, 379 U. S. at page 
584, Mr. Justice Black dissenting. It must, of course, en­
force its laws with even handed justice. Otherwise, equal 
protection of the laws would not be afforded. It should 
be noted that in a concurring opinion in one of the cases 
involved in Cox v. State of Louisiana, 379 IJ. S. at page 
468, Mr. Justice Black expresses the view that picketing, 
patrolling or marching upon a public street is not a right 
granted by the First and Fourteenth Amendments of free­
dom of speech, press or assembly because they communi­
cate ideas but are not constitutionally protected speech, 
certainly unless the people involved are where they have 
a right to be.22

21 Statutes and ordinance are cited in II-A, ante page 49.

22 We quote from the pertinent p a rt of Mr. Justice B lack’s 
S ta tem ent: “The F irst and Fourteenth Amendments, I  think, 
take away from government, state and federal, all power to re-



— 55

Surely it cannot be rationally argued that the horde 
which took over one of the streets of Birmingham with 
both abutting sidewalks enroute to the City Jail some 
two miles away or to City Hall nearly a mile away over 
busy city thoroughfares were where they had a right to 
be. Such conduct was clearly unlawful and enjoin- 
able.

On any question of failure to afford equal protection 
of the laws, we emphatically state that justice was even 
handed. Nothing like this had ever occurred in the City 
of Birmingham, so far as we are aware and have been 
able to ascertain.

Turning to the overbreadth contention, we note that we 
have at the beginning of II-C considered petitioners re­
lated argument of alleged vagueness of the injunction in 
this respect. We think it applicable here.

Before continuing with the overbreadth question, we 
digress to comment on the vagueness argument of peti­
tioners concerning the part of the injunction violation 
as it relates to 1159, parading without a permit, and 
which we have discussed in Section I of our argument.

strict freedom of speech, press, and assembly where people have 
a right to be for such purposes. This does not mean however, 
th a t these amendments also grant a constitutional righ t to en­
gage in the conduct of picketing or patrolling, whether on pub­
licly owned streets or on privately owned property. See 
National Labor Board v. F ru it and Vegetable Packers and W are­
housemen, Local 760, 377 U. S. 58, 76, 84 S. Ct. 1063, 1073, 12 
L. Ed. 2d 129 (concurring opinion). W ere the law otherwise, 
people on the streets, in their homes and anywhere else could 
be compelled to listen against their will to speakers they did 
not w ant to hear. Picketing, though it may be utilized to com­
municate ideas, is not speech, and therefore is not of itself p ro­
tected by the First- Amendment. Hughes v. Superior Court, 339 
U. S. 460, 464-466, 70 S. Ct. 718, 720-722, 94 L. Ed. 985; Giboney 
v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684, 93 
L. Ed. 834; Bakery and Pastry  Drivers and Helpers Local 802, 
etc. v. Wohl, 315 U. S. 769, 775-777, 62 S. Ct. 816, 819-820, 86 
L. Ed. 1178 (Douglas, J., concurring).” (85 S. Ct. a t page 468.)



— 56

There is no question but that subdivision I (1) of the 
prayer is directly and without equivocation for an injunc­
tion to restrain a parade or procession without a permit 
(E. 36, this brief, ante page 10).

To continue on the question of overbreadth, in the first 
place, such question is not governed, as appears to be 
assumed in opposition briefs, by the same strict rules of 
construction relating to criminal statutes. This is true 
for the reason that the bill of complaint furnished addi­
tional information concerning the nature of the prohib­
ited conduct. In addition, the door of equity is always 
open to construe any decree it may have rendered, if con­
sidered ambiguous, a protective device not available to 
one who may violate a criminal statute. The person who 
may ultimately be punished for contempt for violating an 
injunction need not run the risk of punishment because 
he may obtain a judicial determination in advance of any 
act in violation of such injunction.

But we do not believe the injunction in this case was 
vague or overbroad. For comparison, we turn to some 
of the federal cases for the scope of injunctions issued. 
For example, in In Re Debs, 158 U. S. 564, 15 S. Ct. 900, 
912, the injunction was both sweeping and long in its 
prohibition. On verified bill of complaint presented to 
the court a temporary injunction was issued without a 
hearing commanding the defendant,

“and all persons combining and conspiring with 
them, and all other persons whomsoever, absolutely 
to desist and refrain from in any way or manner in­
terfering with, hindering, obstructing, or stopping 
any of the business of any of the following named 
railroads (specifically naming the various roads 
named in the bill) as common carriers of passengers 
and freight between or among any states of the 
United States, . . .” . (15 S. Ct. at page 902.)



57 —

We quote the remainder in Footnote below.23

Debs was convicted of contempt, for violating this in­
junction. Before leaving In He Debs, we note in the lan­
guage of Mr. Justice Brewer, which is particularly perti-

23 . . and from in any way or manner interfering with,
hindering, obstructing, or stopping any mail trains, express 
trains, or other trains, whether freight or passenger, engaged 
in in terstate commerce, or carrying passengers or freight be­
tween or among the states; and from in any manner interfering 
with, hindering, or stopping any trains carrying the m ail; and 
from in any manner interfering with, hindering, obstructing, or 
stopping any engines, cars, or rolling stock of any of said com­
panies engaged in in terstate commerce, or in connection with 
the carriage of passengers or freight between or among the 
states; and from in any manner interfering with, injuring, or 
destroying any of the property of any of said railroads engaged 
in, or for the purpose of, or in connection with in terstate com­
merce, or the carriage of the mails of the United States, or the 
transportation of passengers or freight between or among the 
states; and from entering upon the grounds or premises of any 
of said railroads for the purpose of interfering with, hindering, 
obstructing, or stopping any of said mail trains, passenger or 
freight trains engaged in in terstate commerce, or in the tran s­
portation of passengers or freight between or among the states, 
or for the purpose of interfering with, injuring, or destroying 
any of said property so engaged in or used in connection with 
in terstate commerce, or the transportation of passengers or 
property between or among the s ta te s ; and from in juring or 
destroying any p art of the tracks, roadbed, or road or perm a­
nent structures of said railroads; and from injuring, destroying, 
or in any way interfering with any of the signals or switches 
of any of said railroads; and from displacing or extinguishing 
any of the signals of any of said railroads; and from spiking, 
locking, or in any manner fastening any of the switches of any 
of said railroads; and from uncoupling or in any way ham per­
ing or obstructing the control by any of said railroads of any 
of the cars, engines, or parts of trains of any of said railroads 
engaged in in terstate commerce or in the transportation of pas­
sengers or freight between or among the states, or engaged in 
carrying any of the mails of the United S tates; and from com­
pelling or inducing, or attem pting to compel or induce, by 
threats, intimidation, persuasion, force, or violence, any of the 
employes of any of said railroads to refuse or fail to perform  
any of their duties as employees of any of said railroads in 
connection with the in terstate business or commerce of such 
railroads or the carriage of the United States mail by such ra il­
roads, or the transportation of passengers or property between



58

nent to the part of the injunction issued in this case to 
prohibit the inciting, fostering’ and encouraging the 
formation of mobs in carrying out the objectives of the 
“ movement ” , the following at page 912 of 15 S. Ot.:

“ A most earnest and eloquent appeal was made to 
us in eulogy of the heroic spirit of those who threw up 
their employment, and gave up their means of 
earning a livelihood, not in defense of their own 
rights, but in sympathy for and to assist others

or among the states; and from compelling or inducing, or a t­
tem pting to compel or induce, by threats, intim idation, force, 
or violence any of the employees of any of said railroads who 
are employed by such railroads, and engaged in its service in 
the conduct of in terstate business or in the operation of any of 
its trains carrying the mail of the United States, or doing in­
terstate  business, or the transportation of passengers and freight 
between and among the states, to leave the service of such ra il­
roads; and from preventing any person whatever, by threats, 
intimidation, force, or violence from, entering the service of any 
of said railroads, and doing the work thereof, in the carrying 
of the mails of the United States or the transportation of pas­
sengers and freight between or among the states; and from 
doing any act whatever in furtherance of any conspiracy or 
combination to restrain  either of said railroad companies or 
receivers in the free and unhindered control and handling of 
in terstate commerce over the lines of said railroads, and of 
transportation of persons and freight between and among the 
states; and from ordering, directing, aiding, assisting, or abet­
ting  in any manner whatever any person or persons to commit 
any or either of the acts aforesaid.

‘And it is fu rther ordered th a t the aforesaid injunction and 
w rit of injunction shall be in force and binding upon such of 
said defendants as are named in said bill from and afte r the 
service upon them severally of said writ, by delivering to them 
severally a copy of said writ, or by reading the same to them, 
and the service upon them respectively of the w rit of subpoena 
herein, and shall be binding upon said defendants, whose names 
are alleged to be unknown, from and after the service of such 
w rit upon them respectively, by the reading of the same to 
them, or by the publication thereof by posting or printing, and, 
after service of subpoena upon any of said defendants named 
herein, shall be binding upon said defendants and upon all other 
persons whatsoever who are not named herein from and after 
the time when they shall severally have knowledge of the entry 
of such order and the existence of said injunction’ ” (15 S Ct 
902, 903). ' '



59 —

whom they believed to be wronged. We yield 
to none in our admiration of any act of heroism 
or self-sacrifice, but we may be permitted to 
add that it is a lesson which cannot be learned too 
soon or too thoroughly that under this government of 
and by the people the means of redress of all wrongs 
are through the courts and at the ballot box, and that 
no wrong, real or fancied, carries with it legal war­
rant to invite as a means of redress the co-operation 
of a mob, with its accompanying acts of violence.”

In a situation involving racial demonstrations similar 
to those involved in this case, the District Court of Baton 
Rouge, Louisiana, issued a temporary restraining order to 
prevent irreparable injury, loss and damage and to pre­
serve law and order. The court denied motion to dissolve 
the temporary restraining order, but stayed further pro­
ceedings in such case under the doctrine of abstention 
to permit the state courts of Louisiana to determine the 
issues, since the responsibility for preserving public order 
is essentially that of the State. Griffon v. Congress of 
Racial Equality, 1963, 221 Fed. Supp. 899. Please also 
see Congress of Racial Equality v. Clemmons, 1963 (OA-5), 
323 Fed. 2d 54.

The injunction or restraining order in Griffon which the 
trial court refused to dissolve is also very broad.24

24 Its  provisions are th a t CORE and persons acting in con­
cert with them are: “hereby enjoining from financing, spon­
soring, encouraging, or engaging in meetings or any other ac­
tivities whereby violations of existing state, municipal or 
federal laws are suggested, advocated or encouraged. . . .

. . . ‘financing, sponsoring, encouraging or engaging in meet­
ings, demonstrations or other activities whereby the public 
ways, streets, sidewalks or highways of the City of Plaquemine, 
or of the Parish of Iberville, Louisiana, are blocked, or the un­
impaired use thereof denied to other traffic lawfully attem pting 
to use the same.’

. . . ‘financing, sponsoring, encouraging or engaging in meet­
ings or other activities wherein or whereby disobedience of the



60 —

In Kelly v. Page, 1964 (CA-5), 335 Fed. 2d 114, the 
restraining order was obtained by the City of Albany, 
Georgia, but the denial of temporary injunction because 
of changed conditions was appealed to the Fifth Circuit 
Court of Appeals and remanded by it to the District Court 
for a full findings of fact and conclusions of law. The 
restraining order of the District Court issued July 20, 
1962, was directed to Rev. Martin Luther King, Reverend 
Ralph Abernathy, Reverend Wyatt Tee Walker, Southern 
Christian Leadership Conference and others, including 
The Albany Movement. It restrained them and those 
acting in concert or participation with them who receive 
actual notice of the order by personal service or otherwise, 

. . . “ from continuing to sponsor, finance or encour­
age unlawful picketing in the City of Albany, from 
engaging or participating in any unlawful congre­
gating or marching in the streets, on the sidewalks, 
or other public ways of the City of Albany, Georgia, 
from conspiring, encouraging or participating in any 
boycott in restraint of trade, or from doing any other 
act designed to provoke breaches of the peace or from 
doing any act. in violation of the provisions herein 
referred to.” Asa D. Kelley, Jr., et al. v. M. S. Page, 
et al., in the U. S. District Court Middle Dist. of Ga., 
Albany Div., No. 727, issued July, 1962 (unreported).

In United States v. U. S. Klans, Knights of Ku Klux 
Klan, 1961, 194 Fed. Supp. 897, District Judge Johnson

lawful orders of properly constituted law enforcing agencies 
and their personnel is advocated, suggested or encouraged.’

. . . ‘financing, sponsoring, encouraging or engaging in meet­
ings or any other activities designed or held for the purpose of 
impeding or obstructing the adm inistration of justice or the 
orderly functions of government.’

. . . ‘engaging in any activity designed to or which does im­
pede, hinder or obstruct officers of the law or officials of the 
Parish of Iberville, Louisiana, or the Town of Plaquemine, 
Louisiana, from perform ing and discharging the duties of their 
respective offices’ ” (221 Fed. Supp. 901).



—  61 —

issued a sweeping injunction against the Klan, but also 
issued a restraining order against the Southern Christian 
Leadership Conference, Ralph D. Abernathy, Martin Luther 
King, Jr., F. L. Shuttlesworth, Wyatt Tee Walker, and all 
others acting as their agents, officers or members in or 
employees of or acting in concert with them enjoining the 
sponsoring, financing and encouraging of publicized trips 
of “ Freedom Riders” which will foment violence in and 
around bus terminals and bus facilities.

D.
The evidence is sufficient.
We do not repeat evidence noted in our Statement, ante 

pages 13-18, and also that contained in petitioners’ brief 
that shows beyond all doubt that the “ Movement” was 
highly organized and all its moves carefully planned and 
carried out. The chief strategist was petitioner, Wyatt 
Tee Walker (R. 211), who was in direct charge of the 
April 12th and April 14th incidents.

Of course, each of the conspirators is responsible for 
any unlawful act that may result pursuant to the carry­
ing out of the conspiracy. It is not necessary that each 
be a participant in everything that is done. “ A conspirator 
may join at any point in the progress of the conspiracy 
and be held responsible for all that may be and all that 
has been done” . Poliafico v. United States, 1956 (0. A.- 
6), 237 Fed. 2d 97, 104, cert. den. 352 U. S. 1025, 77 S. Ct. 
590, 1 L. Ed. 2d 597.

E.
Convictions sustainable on conspiracy charge.
It is not necessary to a conviction for a conspiracy that 

each of the conspirators shall directly participate in every 
act in furtherance of its consummation. Blumenthal v. 
United States, 332 U. S. 539, 557, 558, 68 S. Ct. 248, 257.



62 —

Conviction for a conspiracy may be sustained whether the 
purpose is lawful but is consummated by unlawful means 
or when the purpose is unlawful by any means whether 
lawful or unlawful. Duplex Printing Press Co. v. Deer- 
ing, 254 U. S. 443, 465, 41 S. Ct. 172, 176, 65 L. Ed. 349, 
16 A. L. R. 196.

It matters not how many otherwise unlawful acts may 
be encompassed within the furtherance of the over-all 
conspiracy, the criminal offense is one and one punishment 
alone is properly imposed. Skelly v. U. S., C. C. A., Okl., 
76 F. 2d 483, certiorari denied, 55 S. Ct. 914, 295 U. S. 
757, 79 L. Ed. 1699; Berman v. U. S., C. C. A. Okl., 76
F. 2d 483, certiorari denied, 55 S. Ct. 914, 295 U. S. 757, 
79 L. Ed. 1699.

In this case, the gravamen of the criminal contempt 
offense charged is violation of the injunction by concerted 
action of the petitioners in the violation of the injunction. 
I t is immaterial whether some acts committed in further­
ance and consummation of the conspiracy to violate the 
injunction may be lawful, and standing alone, legally pro­
tected by Constitutional provisions relating to freedom of 
speech, assembly or that equal protection of the laws or 
due process were not afforded with respect to them as so 
isolated. The point is that the injunction was knowingly 
violated in at least one of its prohibitions in concert of 
other and so charged in the petition for rule nisi and 
that is sufficient to sustain the contempt convictions. 
Short v. United States, 1937 (CCA-4), 91 Fed. 2d 614; 
People v. Tavormina, 1931, 257 N. Y. 184, 177 N. E. 317.

Although this subsection E is made a part of our 
Argument, Section II, we respectfully request its inclusion 
with authorities herein cited in consideration of Sections 
III, IV, and V, as well.



63 —

III.

The Constitutionality of 1159.
We have heretofore argued in Section I that the ques­

tion of constitutionality of 1159 was never reached be­
cause the application of the rule of Mine Workers and 
Howat v. Kansas does not permit that issue to be reached. 
We have urged and continue to urge adherence to this 
rule which places respect for the law as a fundamental 
foundation stone of our democratic society. An editorial 
written by an editorial writer for The Dallas Morning 
Star on October 14, 1966, comments on this case, after 
saying that the questions are numerous and perplexing:

“ But there is only one issue: Does the individual 
have the right to Haunt a court order, regardless of 
whether the order is right or wrong?

There is only one obvious answer. And, church- 
state relationship aside, God help our system of rule 
by law if the Court arrives at any other answer.” 
Please see Appendix hereto, page 85.

In II, we have urged affirmance of the contempt convic­
tions because of the presence' of other features of the in­
junction prohibiting other unlawful conduct engaged in 
that sustains the contempt convictions aside from such 
mere violation of ordinance 1159.

We do not recede from the above positions but we now 
emphasize an additional reason the unlawful conduct of 
petitioners precludes a consideration of the constitution­
ality of 1159, even though the convictions should be held 
to rest upon its violation.

First, the attack is by those who unquestionably vio­
lated the ordinance without making any application for 
a permit required by it. But their standing to make such 
an attack in such a case is dependent upon their conduct 
being otherwise lawful. As stated in Staub v. City of 
Baxley, 1958, 355 IT. S. 313, 78 S. Ct. 277, 2 L. Ed. 2d



—  64 —-

319, where a licensing ordinance was stricken down for 
failure to contain appropriate standards for issuance 
thereof, when no attempt was made to obtain such license: 

“ It will be noted that appellant was not accused 
of any act against the peace, good order or dignity 
of the community, nor for any particular thing she 
said in soliciting employees of the manufacturing 
company to join the union. She was simply charged 
and convicted for ‘soliciting members for an organi­
zation without a permit.’ ” 355 U. S. at page 321.

The same case limits the right of attack by one not 
making application for such a license or permit to an 
ordinance void on its face.

We respectfully urge that on this point too the peti­
tioners have failed to qualify in their right to urge its 
unconstitutionality assuming arguendo that all other rea­
sons urged herein precluding such attack are held to be 
without merit.

Ordinance 1159 does contain standards for the issuance 
of a parade permit. We recognize that the Court of Ap­
peals of Alabama has said these standards are overbroad. 
However, it should be noted that question was raised be­
fore the Alabama Court of Appeals by one directly 
charged with its violation simply and no other unlawful 
acts or conduct were involved in the issues before the 
Court. Certainly the rule of Mine Workers and Howat v. 
Kansas was not involved.

We think the Court of Appeals was wrong in its opin­
ion. Certainly, we do not see any significant distinction 
between the Birmingham Ordinance standard and those 
of the NIMLO Model Ordinance approved by the Alabama 
Court of Appeals. 180 So. 2d pages 129-131.

But it also need be remembered that as petitioners say 
on page 10 of their brief, this decision is now being re-



65 —

viewed on certiorari granted by the Supreme Court of 
Alabama. That court has not as yet construed the ordi­
nance, but no doubt will do so.

In a 1961 case, the Supreme Court of South Carolina 
has dealt with the question and we think brought to focus 
a distinction which the Alabama Court of Appeals ap­
parently overlooked. In City of Darlington v. Stanley, 
1961, 239 S. C. 139, 122 S. E. 2d 207, that court upheld a 
parade permit ordinance when the permit was required to 
be issued by the Mayor or Council, subject to their dis­
cretion and, “subject to the public convenience and pub­
lic welfare”.

There is little, if any, actual difference between the 
standards of the Darlington ordinance and those of 1159, 
although more words are used in the latter. The Darling­
ton ordinance was upheld on the authority of Poulos V. 
State of Mew Hampshire, 345 IT. S. 395, 73 S. Ct. 760, 
768, 97 L. Ed. 1105, 30 ALE 2d 987, and Cox v. New 
Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049, 133 
ALR 1396. Please see 122 SE at pages 211, 212.

The point of the Darlington case is that the discretion 
was not unbridled, but convenience and public welfare 
necessarily meant, such things as safety, proper policing, 
preventing confusion and minimizing the risk of disorder 
in the use of the streets. With this construction, the Dar­
lington ordinance was upheld by the South Carolina Su­
preme Court, just as a similar New Hampshire Statute 
was upheld after being so construed by that state’s high­
est court. As so construed the statute was held to be con­
stitutional by the Supreme Court of the United States in 
Poulos and Cox.

In the light of these cases, it seems logical that 1159 
should be properly construed, as in Darlington, Poulos and 
in Cox to restrict any unbridled discretion and its use to 
matters concerning the proper use of the streets in safety,



— 66 —

without confusion, risk of disorder, and with proper re­
gard for policing necessities. We think the Supreme Court 
of Alabama may well so construe 1159. In Darlington, the 
court applied the rule of law favoring construction of a 
statute in such a way as to uphold its constitutionality. 
Obviously, it cannot be construed to be invalid as applied 
to petitioners. Conduct otherwise unlawful and failure to 
apply for a permit, and other reasons we have argued 
herein preclude this.

IV.

Statements and News Release Made by Petitioners Walker, 
King, Abernathy and Shuttlesworth Cannot Be Iso­
lated From Their Direct Part in the Violation of the 
Injunction to Stand as Protected Free Speech.

Under their Proposition III (Pet. Br. 71-76), petitioners 
attempt to isolate evidence of derogatory statements, 
criticizing the courts of the South and the injunction in 
this case in particular, from the direct pronouncement 
of definance and intent to violate the injunction contained 
therein. The point is made that the petition for show 
cause order charged these written and oral declarations 
as a separate offense as to the four petitioners above 
named, and since the conviction was single their convic­
tions should be reversed; if standing alone, such charges 
could not be sustained because they conflict with con­
stitutionally protected free speech.

Our answer is two fold. First, the statements and 
declarations are verbal acts, but when taken into account 
with other acts constitute evidence of the guilt of not 
only these four petitioners, but the others as well, of a 
conspiracy to defy and violate the injunction, which is 
criminal contempt. The thrust of the charge against all 
respondents made a party to the show cause petition is 
that they conspired to defy and violate the injunctive



67 —

order in the consummation of which conspiracy certain 
meeting were held, statements, verbal and written, were 
made, and other overt acts committed as recited in the 
petition. The charges were so considered by the trial 
court. Only one sentence of conviction was imposed. Each 
respondent found guilty was treated alike; the four who 
played major roles in the conspiracy were given the same 
punishment as those who were found guilty of having 
played minor parts. To say that the trial court must be 
presumed to have meted out added punishment to the 
four because of the statements and declarations of which 
they alone were guilty is to ignore the plain facts dis­
closed by the trial court’s decree. As shown by the 
Record,25 26 the prayer of the petition to show cause was 
that the four be required to perform in the future an 
affirmative act of recanting and retracting these declara­
tions, civil contempt. But the trial court refused to do 
this and restricted the convictions to past conduct only, 
criminal contempt.

This treatment of the contempt petition by the trial 
court, considering all respondents equally guilty of the 
overall conspiracy consisting of a series of acts to flout 
and violate the injunction in carrying on the “ Move­
ment ” ,2ti which respondent King said had reached the

25 Please see prayer for relief wherein the petitioners who 
played m ajor roles in the conspiracy were distinguished from 
those playing minor roles (R. 89, 90). Petitioners prayer for 
relief (R. 90) is in pertinent p art as follows: “. . . and fu rther 
why each of said respondents, AVyatt Tee W alker, Ralph Aber­
nathy, P. L. Shuttlesworth and M artin Luther King, Jr., shall 
not continue to be adjudged in contempt of this court and from 
time to time punish therefor unless they shall publicly re tract 
or recant the statem ents made publicly a t press conferences and 
mass meetings on April 11, 1963, of their intention to violate 
the injunction described in the foregoing petition.”

26 W hat the “movement” was has never been defined, but the 
Alabama organization enjoined was the Alabama Christian 
Movement for Human Rights. That it was an organized,



68 —

point of no return (R, 243, 244), is sustained by a number 
of decisions of this Court and other courts. Included 
among these are: Blumenthal v. United States, 332 TJ. S., 
pages 539, 559, 68 Sup. Ct. 248, 257; United States v. 
Rosenberg (C. C. A.-2, 1952), 195 Fed. 2d 583, 600, 601, 
cert, denied 344 U. S. 838, 73 S. Ct. 20, 21, 97 L. Ed. 652, 
reh. denied 344 TJ. S. 889, 73 S. Ct. 134, 180, 97 L. Ed. 687, 
reh. denied 347 U. S. 1021, 74 S. Ct. 860, 98 L. Ed. 1142, 
motion denied 355 U. S. 860, 78 S. Ct. 91 L. Ed. 2d 67; 
People v. McCrea, 6 N. W. 2d 489, 303 Mich. 213, cert, 
denied 318 U. S. 783, 63 S. Ct. 851, 87 L. Ed, 1150.

Each of the conspirators is guilty in equal degree for 
“ all that may be or has been done” , whether he entered 
the conspiracy at the beginning or later. Poliaflco v. 
United States, 237 Fed. 2d 97, 194 (C. C. A.-6, 1956); cert, 
den. 352 U. S. 1025, 77 S. Ct. 590, 1 L. Ed. 2d 597.

It is of no moment that the unlawful conspiracy was 
in part consummated by the spoken and written word. 
An unlawful act, including as a component element thereof 
the use of written or oral words, gains no constitutional 
protection as to freedom of speech or press. This was 
made clear in Giboney v. Empire Ice and Storage Com­
pany, 336 U. S. 490, 502, 69 8. Ct. 684, 691, 93 L. Ed. 834, 
where the court said:

“ It has never been deemed an abridgment of free­
dom of speech or press to make a course of conduct 
illegal merely because the conduct was in part initi­
ated, evidenced or carried out by means of language 
either spoken, written or printed.”

planned, sustained program  in which publicity of all kinds for 
money raising and other purposes was an integral p a rt is 
clear. W ithout doubt, the defiant news release and other like 
declarations were intended, along with other overt acts exploit­
ing defiance and violation in furtherance of these purposes in 
the area of nation-wide publicity of the “Movement”, for such 
money raising and possibly other purposes.



69 —

Second, the declarations, written or verbal, even if 
standing alone, are more than mere speech. They do more 
than merely criticize the court for issuance of the in­
junction. Even aside from any further involvement of 
these men in the chain of events that followed, and even 
if the conspiracy charge had not been made against them, 
it is clear that their joint declarations encouraging and 
inciting the violation of the injunction by the other mem­
bers of S. C. L. C. and A. C. M. H. B. were more than 
free speech. They partake more of the nature of “ verbal 
acts” .27

As has been held in Fox v. Washington, 326 U. S. 273, 
35 S. Ct. 383, 59 L. Ed. 573, a man may be punished for 
encouraging the commission of a crime.

We have read the decisions of this Court cited by 
petitioners. None of them involved a direct threat to defy 
and violate, encouraging and inciting the violation of an 
injunction or restraining order by the leaders of an en­
joined organization, resulting in its violation. Conse­
quently, they are distinguishable from the instant case.

In re Sawyer, 360 U. S. 622, 629, 79 S. Ct. 1376, 1379, 
presented the question, “ Did post trial speech of lawyer 
impugn the integrity of the U. S. District Court Judge 
or reflect upon his impartiality!” This Court in con­
sidering the notes of the news reporter made on the 
speech held it did not. A majority of the court, composed 
of Mr. Justice Frankfurter, Mr. Justice Clark, Mr. Justice 
Harlan and Mr. Justice Whittaker, dissenting, together 
with Mr. Justice Stewart, concurring, held that criticism 
of a trial judge by a lawyer while engaged in a pending 
case, if made with the intent to obstruct justice, is not 
protected free speech. It is logical that such conduct by

27 Gompers v. Buck’s Stove and Range Co., 221 U. S. 418, 
31 S. Ct. 492, 497, uses this expression in speaking of words 
used, “unfa ir” or “we don’t patronize”, in relation to a boycott.



a party to pending litigation would likewise be unpro­
tected.

In Wood v. Georgia, 375 U. S. 375, 386, 82 S. Ct. 1364, 
1372, the contempt citation was for criticizing a grand 
jury charge to investigate possible evils resulting from 
a bloc vote. The sheriff, who expected to soon be up for 
election, was the defendant. Mr. Chief Justice Warren 
noted the fact that no individual was on trial and no jury 
involved. He made this pertinent distinction:

“ And, of course, the limitations of free speech as­
sume a different proportion when expression is di­
rected toward a trial as compared to a grand jury 
investigation.” 375 U. S., at pages 389, 390.

Bridges v. California, 314 U. S. 252, concerns contempt 
convictions for newspaper editorials and a telegram sent 
by Bridges to the Secretary of Labor. Mr. Justice Black, 
writing for the majority of five justices, made it clear 
that Bridges’ telegram, which stated a strike would re­
sult if the California court decree should be enforced, 
was not a threat to violate the court order:

“ It is not claimed that such a strike would have 
been in violation of the terms of the decree, nor that 
in any other way it would run afoul of the law of 
California. On no construction, therefore, can the 
telegram be taken as a threat either by Bridges or 
the union to follow an illegal course of action.

“ Moreover, this statement was made to the Secre­
tary of Labor, who is charged with duties in con­
nection with prevention of strikes.” 314 U. S., at page 
277.

Please contrast the defiant declarations of intention to 
violate the court order in the instant case, made and 
repeated at meetings clearly designed to encourage and 
incite the organizations, S. C. L. C. and A. C. M. H. R., 
and their members, to violate the court order.

— 70 —



71 —

Pennekamp v. Florida, 328 U. S. 331, 66 S. Ct. 1029, had 
to do with editorials in a Miami newspaper. This involved 
no threat by a party to violate a court order, or as it was 
expressed, to interrupt the orderly processes of the court. 
Such interruption is stated to be a proper test in balanc­
ing freedom of expression against improper interference 
with the orderly administration of justice. 328 U. S., at 
page 336. Please note the extreme contrast in this re­
spect between Pennekamp and the instant case.

Craig v. Harney, 331 U. S. 367, 67 S. Ct. 1249, concerned 
criticism of the action of a state trial judge in newspaper 
stories and an editorial. No threat nor overt act to dis­
obey a court order resulted. The case is entirely dissimilar.

Two other cases cited by petitioners, Garrison v. Louisi­
ana, 379 U. S. 64, 85 S. Ct. 209, and New York Times v. 
Sullivan, 376 U. S. 254, 84 S. Ct. 710, are not pertinent. 
They deal with libel, criminal and civil.

“ When a case is finished, courts are subject to the same 
criticism as other people; but the propriety and necessity 
of preventing interference with the course of justice by 
premature statement, argument or intimidation hardly can 
be denied (emphasis ours).” Patterson v. Colorado, 205 
U. S. 454, 27 S, Ct. 556, 558.

Thomas v. Collins, 323 U. S. 516, 529; Stromberg v. Cali­
fornia, 283 U. S. 359, 367-368; Williams v. North Carolina, 
317 U. S, 287, 291, 293; and Terminiello v. Chicago, 337
IT. S. 1, do not enunciate any principle which is applicable 
to this case. Here, the conviction was for having con­
summated a conspiracy to violate the injunction and the 
written and spoken words used were not constitutionally 
protected because they were specific calls to action of an 
unlawful nature. The ease of Holt v. Virginia, 381 IT. S. 
131, 85 S. Ct. 1375, is certainly not remotely applicable. 
There the lawyer was adjudged in direct contempt of



—  72

court because of having filed a motion for change of 
venue.

The declarations in defiance and threats of violation, 
accompanied by open encouragement and incitement to 
violation of the injunction, of which the four petitioners 
were guilty, cannot be justified as protected free speech 
by any decision mentioned by petitioners or, for that 
matter, by any other decision or authority that we have 
been able to find.

Y.

The Conviction of Petitioners Hayes and Fisher 
Is Sustained by the Evidence.

These petitioners urge that their convictions should be 
overturned because of lack of evidence that they had 
knowledge or notice of the injunction terms. Both were 
active members of A. C. M. H. R., Hayes for six years 
(R. 333) and Fisher for four years (R. 300).

Both of them were attendants at the meetings held prior 
to the Sunday, April 14th, parade or procession, in which 
they both took part. Both attended the meeting of Satur­
day, April 13th. At this meeting volunteers were re­
cruited for the parade or procession to be held the next 
afternoon, and for volunteers to go to jail. Also, volun­
teers were solicited to call all the Negroes in the com­
munity to get them out the next day for this “ demon­
stration” .28

Petitioner Hayes admitted to Detective Jones that he 
was with the leaders in the Sunday, April 14th march, and

28 In  Hayes’ testimony it was referred  to as a “demonstra­
tion” . This witness said he had heard earlier th a t demonstra­
tors had been enjoined. He said he had made up his mind tha t 
he would take p art in it and he went for th a t purpose (R. 336, 
337).



— 73 —

that he knew of the injunction and was just marching in 
the face of it anyway (R. 256, 257).

Respondent Fisher admitted he attended both the meet­
ings held on Saturday night and “ that held on Friday 
night as well” (R. 300, 301).

It was the Friday meeting when petitioner Walker made 
his call for Negroes willing “ to die for me” . He also 
made a call for students, grades one through graduate 
school. At this and all meetings volunteers to go to jail 
were called for. Fisher stated volunteers “ to walk” were 
called for at the Saturday, April 13th meeting. They were 
to walk the next day, April 14th (R. 301).

He admitted he knew about the injunction (R. 354); 
that it was interpreted to him that if he participated in 
the April 14th demonstration he would have to go to jail 
(R. 304, 305).

As the Supreme Court of Alabama stated in affirming 
the judgment against them:

“ We think it would require of the trial court an 
unduly naive credulity to declare that the court erred 
in concluding that Hayes and Fisher had knowledge 
that marching on the streets was enjoined and that 
they knowingly and deliberately violated the injunc­
tion by marching or parading on Sunday” (R. 446).

The doctrine of Thompson v. Louisville, 362 U. S. 199, 
and Fields v. City of Fairfield, 375 U. S. 248, is not appli­
cable.

Of course, it is only in the event of a complete lack of 
evidence that this Honorable Court will invoke the right 
to examine the record and make its independent deter­
mination on any question of fact. Whitney v. California, 
274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 594; Milk Wagon



- 7 4 -

Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 61 
S. Ct. 552, 85 L, Ed. 836; Portland R. L. & P. Co. v. Rail­
road Commission, 229 U. S. 414, 33 S. Ct. 827, 57 L. Ed. 
1248. We submit that the evidence and inferences to be 
drawn therefrom are adequately sufficient, especially in 
view of the fact that it comes to this Honorable Court 
with a favorable presumption on the facts determined by 
the Alabama Supreme Court.

CONCLUSION.

It is respectfully submitted that judgments of convic­
tion should be affirmed.

Respectfully submitted,

J. M. BRECKENRIDGE,

EARL McBEE,

WILLIAM C. WALKER,
600 City Hall,

Birmingham, Alabama 35203, 
Attorneys for Respondent.



APPENDIX.



APPENDIX.

Alabama Constitution of 1901.
“ Sec. 144. A circuit court, or a court having the juris­

diction of the circuit court, shall be held in each county 
in the state at least twice in every year, and judges of 
the several courts mentioned in this section may hold court 
for each other when they deem it expedient, and shall do 
so when directed by law. The judges of the several courts 
mentioned in this section shall have power to issue writs 
of injunction, returnable to the courts of chancery, or 
courts having the jurisdiction of courts of chancery.”

— 75 —

Code of Alabama of 1940.

Title 7.
‘ ‘ § 1038. Injunctions may be granted, returnable into 

any of the circuit courts in this state, by the judges of 
the supreme court, court of appeals, and circuit courts, 
and judges of courts of like jurisdiction.”

“ § 1039. Registers in circuit court may issue an in­
junction, when it has been granted by any of the judges 
of the appellate or circuit courts when authorized to grant 
injunctions, upon the fiat or direction of the judge grant­
ing the same indorsed upon the bill of complaint and 
signed by such judge.”



— 76 —

Code of Alabama—Recompiled 1958. 

Title 7.

(APPENDIX)

Supreme Court Rule 47.
“ Appeals Involving Extraordinary or Remedial Writs.
In all appeals involving extraordinary or remedial writs, 

these rules shall apply unless the court orders otherwise. 
In appeals from judgments or decrees rendered in habeas 
corpus, injunction, certiorari, supersedeas, quo warranto, 
mandamus, prohibition, and appointing or refusing to 
appoint a receiver proceeding, the appellant within five 
days after the appeal has been taken, or the appellee 
within five days after service of the notice of appeal, may 
petition this court to reduce the time for the filing of 
briefs in the cause and to specify an earlier date for sub­
mission of the appeal. Adversary counsel shall be given 
three days notice of the date and time of the proposed 
presentation of the petition to the court. Upon presenta­
tion of the petition, the court may prescribe time limita­
tions for the filing of briefs and for submission which are 
less than otherwise prescribed by the rules, if the court 
is of the opinion that the normal time allowed by these 
rules for filing of briefs and submission of the appeal 
would work injustice, or the appeal involves a question 
of great public interest affecting the public good and re­
quires an earlier filing of briefs and submission of the 
appeal. When the court is not in session, such petition 
may be presented to and acted upon by the senior ac­
cessible member of the court.

The provision of this rule providing for the earlier 
filing of briefs and earlier submission of a cause shall not 
apply in any case where the appellant, because of un­
certainty as to his remedy, seeks relief by mandamus as



77 —

an alternative to his appeal, nor to appeals in cases where 
the injunctive relief involved was merely incidental to 
other relief sought.”

Code of Alabama of 1940.

Title 36.

Section 58.
“ (14). Pedestrians subject to traffic regulations.
(a) Pedestrians shall be subject to traffic-control signals 

at intersections as provided in section 58 (37) of this 
title, but at all other places pedestrians shall be accorded 
the privileges and shall be subject to the restrictions 
stated in sections 58 (1) to 58 (52).

(b) Local authorities are hereby empowered by ordi­
nance to require that pedestrians shall strictly comply 
with the directions of any official traffic-control signal and 
may by ordinance prohibit pedestrians from crossing any 
roadway in a business district or any designated high­
ways except in a crosswalk.”

“ (15). Pedestrians’ right of way in crosswalks.
(a) When traffic-control signals are not in place or not 

in operation the driver of a vehicle shall yield the right 
of way, slowing down or stopping if need be to so yield, 
to a pedestrian crossing the roadway within a crosswalk 
when the pedestrian is upon the half of the roadway upon 
which the vehicle is traveling, or when the pedestrian is 
approaching so closely from the opposite half of the road­
way as to be in danger, but no pedestrian shall suddenly 
leave a curb or other place of safety and walk or run into 
the path of a vehicle which is so close that it is impos­
sible for the driver to yield. This provision shall not ap­



78 —

ply under the conditions stated in subdivision (b) of sec­
tion 58 (16) of this title.

(b) Whenever any vehicle is stopped at a marked cross­
walk or at any unmarked crosswalk at an intersection to 
permit a pedestrian to cross the roadway, the driver of 
any other vehicle approaching from the rear shall not 
overtake and pass such stopped vehicle.”

“ (16). Crossing at other than crosswalks.
(a) Every pedestrian crossing a roadway at any point 

other than within a marked crosswalk or within an un­
marked crosswalk at an intersection shall yield the right 
of way to all vehicles upon the roadway.

(b) Any pedestrian crossing a roadway at a point where 
a pedestrian tunnel or overhead pedestrian crossing has 
been provided shall yield the right of way to all vehicles 
upon the roadway.

(c) Between adjacent intersections at which traffic-con­
trol signals are in operation pedestrians shall not cross at 
any place except in a marked crosswalk.”

“ (18). Pedestrians to use right half of crosswalks.
Pedestrians shall move, whenever practicable, upon the 

right half of crosswalks.”

“ (19). Pedestrians on roadways.
(a) Where sidewalks are provided it shall be unlawful 

for any pedestrian to walk along and upon an adjacent 
roadway.

(b) Where sidewalks are not provided any pedestrian 
walking along and upon a highway shall when practi­



79 —

cable walk only on the left side of the roadway or its 
shoulder facing traffic which may approach from the 
opposite direction.”

Code of Alabama of 1940.

Title 37.
“ Sec. 505. Abating Nuisances.
All cities and towns of this state shall have the power 

to prevent injury or annoyances from anything dangerous 
or offensive, or unwholesome and to cause all nuisances 
to be abated and assess the cost of abating the same 
against the person creating or maintaining the same.”

“ Sec. 506. Enjoining public nuisance.
Municipalities may maintain a bill in equity to enjoin 

and abate any public nuisance, injurious to the health, 
morals, comfort or welfare of the community, or any por­
tion thereof.”

General City Code of the City of 
Birmingham of 1944,

“ Sec. 1142. Streets and sidewalks to be kept open for 
free passage.

Any person who shall obstruct any street or sidewalk 
with any animal or vehicle, or with boxes or barrels, glass, 
trash, rubbish or other like things, so as to obstruct the 
free passage of persons on such streets or sidewalks, or 
who shall assemble a crowd or hold a public meeting in 
any street without a permit, shall, on conviction, be pun­
ished as provided in section 4.

It shall be unlawful for any person or any number of 
persons to so stand, loiter or walk upon any street or



80 —

sidewalk in the city as to obstruct free passage over, on 
or along said street or sidewalk. It shall also be unlawful 
for any person to stand or loiter upon any street or side­
walk of the city after having been requested by any police 
officer to move on.”

“ Sec. 1231. Obedience to police.
I t shall be unlawful for any person to refuse or fail to 

comply with any lawful order, signal or direction of a 
police officer.”

“ Sec. 1357. Use of zones by pedestrians.
Pedestrians shall enter marked safety zones only at 

street intersections by passing over that part of the 
street which is included within the sidewalk lines pro­
jected at right, angles to the curb line and at right angles 
to said safety zones, and in leaving safety zones such 
pedestrians shall cross the street only at street intersec­
tions by passing over that part of the street which is in­
cluded within the line of the sidewalk projected at right 
angles to the curb.”

Traffic Code of the City of Birmingham.

Article III.
“ Section 3-1. Authority of Police and Fire Department 

Officials.
(a) It shall be the duty of the officers of the police 

department or such officers as are assigned by the chief 
of police to enforce all street traffic laws of this city and 
all of the State vehicle laws applicable to street traffic 
in this city.



(b) Officers of the police department or such officers as 
are assigned by the chief of police are hereby authorized 
to direct all traffic by voice, hand, or signal in conform­
ance with traffic laws, provided that, in the event of a 
fire or other emergency or to expedite traffic or to safe­
guard pedestrians, officers of the police department may 
direct traffic as conditions may require notwithstanding 
the provisions of the traffic laws.”

— 81 —

“ Section 3-2. Required Obedience to Traffic Code.
It is a misdemeanor for any person to do any act for­

bidden or fail to perform any act required in this code.”

“ Section 3-3. Obedience to Police and Fire Department 
Officials.

No person shall willfully fail or refuse to comply with 
any lawful order or direction of a police officer or fire 
department official. ’ ’

Traffic Code of the City of Birmingham.

Article X.
“ Section 10-3. Pedestrians to Use Right Half of Cross 

Walks.
Pedestrians shall move, whenever practicable, upon the 

right half of cross walks.”

“ Section 10-4. Crossing at Right Angles.
No pedestrian shall cross a roadway at any place other 

than by a route at right angles to the curb or by the



82

shortest route to the opposite curb except in a cross 
walk.”

“ Section 10-5. When Pedestrian Shall Yield.
(a) Every pedestrian crossing a roadway at any point 

other than within a marked cross walk or within an un­
marked cross walk at an intersection shall yield the right- 
of-way to all vehicles upon the roadway.”

“ Section 10-6. Prohibited Crossing.
(a) Between adjacent intersections at which traffic- 

control signals are in operation, pedestrians shall not 
cross at any place except in a cross walk.

(b) No pedestrian shall cross a roadway other than in 
a cross walk in any business district.

(c) No pedestrian shall cross a roadway other than in 
a cross walk upon any through street.”

“ Section 10-8. Pedestrians Walking Along Roadways.
(a) Where sidewalks are provided it shall be unlawful 

for any pedestrian to walk along and upon an adjacent 
roadway.”

General City Code of Birmingham of 1944.
“ Sec. 804. Punishable as a misdemeanor.

Any person who creates or causes, or who, being the 
owner or agent in control, permits any nuisance or the ex­
istence of anything likely to be prejudicial to the health 
or comfort, or offensive to the senses of, ordinary citizens 
on or about any lot, place or premises is guilty of a mis­
demeanor, and any person who creates or causes any nui­
sance or anything likely to be prejudicial to the health or



— 83

comfort or offensive to the senses of ordinary citizens upon 
any lot, street or other public way or place is guilty of a 
misdemeanor. ’ ’

“ Sec. 311. Disorderly conduct defined.
Any person who disturbs the peace of others by violent 

or offensive conduct, . . .  or any person who shall commit 
any act or diversion causing or tending to a breach of the 
peace, . . . ”

Editorial.

THE DALLAS MORNING NEWS 
FRIDAY, OCTOBER 14, 1966

This editorial, entitled “ Court Agrees to Face a Di­
lemma”, after discussing the Church-State issue involved 
in the Maryland atheists suit seeking to abolish the State’s 
tax exemptions for church buildings, in which certiorari 
was denied by this Honorable Court, went on to discuss the 
Wyatt Tee Walker case. That part of the editorial deal­
ing with such case is quoted verbatim as follows:

“ Although the refusal is significant (and quite wel­
come), it is far less important than an accompanying 
announcement that the court will review the contempt- 
of-court convictions of the Rev. Martin Luther King 
and seven other leaders of the 1963 race demonstra­
tions in Birmingham.

In deciding this case, the justices will be confronted 
with a dilemma that makes the church-state question 
as simple as Batman comics.

The Rev. King’s group inquired about obtaining a 
parade permit prior to the 1963 Birmingham demon­
stration and was referred by city officials to Police 
Commissioner Eugene (Bull) Conner. Conner refused 
to issue a permit.



84 —

Later, a state court issued an injunction prohibiting 
King’s Southern Christian Leadership Conference 
from parading without a permit. King announced 
that his group would defy the ban. On Good Friday 
and Easter he and other SCLC leaders led massive 
marches in Birmingham. They were convicted of con­
tempt of court, fined $50 each and sentenced to five 
days in jail.

Explaining his defiance of the injunction, King said 
at the time: ‘We cannot in all good conscience obey 
such an injunction which is an unjust, undemocratic 
and unconstitutional misuse of the legal process. ’

King’s explanation, of course, was a summation of 
his controversial ‘civil disobedience’ doctrine that con­
tends a man is not obliged to obey a law he believes 
to be unjust if he is willing to accept the punishment 
for his violation of the law.

And herein lies the high court’s dilemma. King’s 
case is based on his civil disobedience doctrine. In 
defense of defying the injunction, he makes three 
claims:

The city law requiring a parade permit was 
unconstitutionally vague and discriminatorily ap­
plied and, therefore, the parades conducted with­
out a permit were not unlawful.

The injunction against parading without a per­
mit was void because it infringed on constitu­
tional rights of free speech and assembly. ‘In all 
good conscience we cannot obey unjust laws . . . 
neither can we obey unjust use of the courts,’ 
King’s position argues.

And, finally, had King paused to litigate the 
injunction his protest movement in Birmingham 
would have lost its momentum.



— 85

In response, Birmingham officials cite a long string 
of Supreme Court cases that hold a person must obey 
a court’s injunction—even if it is unjust or erroneous 
—and challenge it upon appeal.

To permit, each person to decide for himself which 
injunctions should be obeyed would lead to chaos, they 
contend.

So the issue is squarely drawn, perhaps for the first 
time, for the high tribunal. Simply put (perhaps, too 
simply), it asks if the individual has the right to defy 
a court order and, instead of appealing to a higher 
court for relief from the order, take his appeal to the 
streets.

Should the Supreme Court uphold the vital role of 
our judicial system by ruling that King should have 
obeyed the state court’s injunction until its legality 
was decided by higher courts, a process that might 
have taken weeks?

What if the justices find Birmingham’s parade law 
unconstitutional ?

What if they find the injunction was unconstitu­
tional?

What if they find the injunction was issued merely 
as a device to rob King’s drive of its momentum?

The questions are as numerous as they are perplex­
ing. But there is only one issue: Does the individual 
have the right to flaunt a court order, regardless of 
whether the order is right or wrong?

There is only one single and obvious answer. And, 
church-state relationship aside, God help our system 
of rule by law if the court arrives at any other.”