Lankford v. Schmidt Transcript of Proceedings Vol. 9

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1968,

No, 42.

FRED L. SHUTTLESWORTH, 
Petitioner,

vs.
CITV OF BIRMINGHAM, 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. Louis Law  Printing Co., Inc., 411-15 N. Eighth St., 63101. CEntral 1-4477.



INDEX.
Page

Statement ............................................................................. 1

Summary of argument.......................................................  6

Argument .......................................    19

I. Petitioner’s conviction should not be reversed 
because of facial unconstitutionality as a void 
prior restraint upon free expression; and peti­
tioner should be punished for failing to comply
with its permit requirement.................................  19
A. Introductory statement...................................  19
B. Cox vs. New Hampshire versus Lovell vs.

Griffin .................................................................  20
C. The New Hampshire Cox cases (a compari­

son with this case in the light of Walker) 23 
I). Section 1159 is valid as construed, under the 

“ weighing of interests”  as well as the 
“ speech plus”  doctrine. Both recognize the 
right of municipalities to exercise reasonable 
control over its streets, including sidewalks, 
for safety and convenience in their use as
set forth in Cox v. New Hampshire .......... 32

II. Petitioner had fair notice as acquired by due 
process of law .........................................................  36
A. Petitioner had fair notice within the rules

of Lanzetta and Bouie ...................................  36
B. Petitioner could not with impunity presume 

at the time he participated in the enjoined 
march which violated Section 1159 that the 
Supreme Court of Alabama could not or 
would not construe Section 1159 to require a



XI

narrow, precise and non-discriminatory exer­
cise of discretion in the issuance or denial 
of the p erm it.....................................................  40

C. Cases relied upon by petitioner cited in part
I and referred to in part II of his bi’ief are 
not in point. These cases did not teach peti­
tioner that he could igxxore Section 1159 . . .  43
(a) The movie censorship ca ses .................... 43
(b) Distribution of literature and solicita­

tion cases .................................................... 45
(c) Public assembly cases .............................. 51
(d) The remaining cases ................................ 55

D. Raley v. Ohio, 360 U. S. 423, 79 S. Ct. 1257; 
Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 
1731; Johnson v. New Jersey, 384 U. S. 719,
86 S. Ct. 1772; O ’Connor v. Ohio, 385 U. S.
92, 87 S. Ct. 252; and James v. United States,
366 U. S. 213, 81 S. Ct. 1052, have no rele­
vance to the instant case ...............................  56

E. Petitioner had fair notice that his march 
in formation along the sidewalk was a 
parade or procession within the proscription
of Section 1159 .................................................  58

III. It is not necessary that Section 1159, as con­
strued provide for a prompt administrative pro­
ceeding and judicial review if the permit re­
quired by Section 1159 is denied. A “ motion 
to dissolve”  the injunction pending at the time 
of petitioner’s parade without a permit or 
“ mandamus”  to compel the issuance of said 
permit are adequate...............................................  60
A. Only enactments that censor the content of 

speech must provide for both a prompt ad­
ministrative proceeding and judicial review 60



Ill

B. Mandamus and in this case a motion to dis­
solve the injunction provide adequate pro­
cedures for the review of denials of permits 
required by Section 1159 ...............................  64

Conclusion ............................................................................  71

Appendix ........................................................................   73

Cases Cited.

Adderly v. State of Florida, 385 U. S. 39, 87 S. Ct.
242, 17 L. Ed. 2d 149 .........    22

Amalgamated Food Emp. U. Local 590 v. Logan Val­
ley Plaza, 88 S. Ct. 1601 (1968) ....12 ,17,44,45,57,62

Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 83 S. Ct.
631 .......................................  . . . . .6 0 ,6 3

Black v. Wilson, 281 Ala. 6, 198 So. 2d 286 ..............67,69
Bouie v. City of Columbia, 378 U. S. 347, 84 S. Ct.

1697 ........................................................................... 36,37,38
Burton v. Wilmington Parking Authority et al., 365

U. S. 715, 81 S. Ct. 856, 861, 6 L. Ed. 2d 4 5 ..........  7
Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct.

900 ............................................................................. 13,45,46
Chaplinsky v. State of New Hampshire (1942), 315

IT. S. 568, 62 S. Ct. 766 ............................................... 9,27
Commercial Pictures Corp. v. Regents, 346 IT. S. 587,

74 S. Ct. 286 ...........................................................12,43
Cox v. Louisiana, 379 IT. S. 554, 85 S. Ct. 464. .7,9,12,13

15,17,19, 22, 33, 34,35, 44, 49, 55,66 
Cox v. New Hampshire (1941), 312 H. S. 569, 61 S. Ct.

762, 85 L. Ed. 1049. .4, 7, 8, 9,11,13,14,16,17,19, 20, 23 
24, 25, 32, 33, 34, 41, 46, 47, 57, 58, 59,62, 66

Dombrowski v. Pfister, 380 H. S. 479 ..........8, 27, 28, 30, 42
Escobedo v. Illinois, 378 H. S. 478 ........................... .15, 56
Fleming v. Nestor (1960), 363 U. S. 603, 611, 80 S. Ct. 

1367, 4 L. Ed. 2d 1435 ................................................  27



IV

Fox v. State of Washington, 236 U. S. 273, 35 S. Ct.
383 ........................ ............. ............................................... 28

Freedman v. Maryland, 380 U. S. 51, 85 S. Ct.
734 ......................................... 12,16, 22, 43, 44, 60,61,62,63

Gelling v. Texas, 343 U. S. 960, 72 S. Ct. 1002 ___ 12,43
Goldblatt v. Town of Hempstead (1961), 369 U. S.

590, 595-596, 82 S. Ct. 987, 8 L. Ed. 2d 1 3 0 .............. 27
Griffin v. California, 380 U. S. 609 ..............................15, 56
Hague v. C. I. O., 307 U. S. 496, 59 S. Ct. 954 . .15,45,46 
Holmby Production, Inc. v. Vaughn, 350 U. S. 870,

76 S. Ct. 117 ............ ....................................................... 12
Interstate Circuit, Inc. v. City of Dallas, 20 L. Ed.

2d 225 ........................................................................ 12,43,44
James v. United States, 366 U. S. 2 1 3 ..................15,56,57
Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct.

1772 .......   15,56
Jones v. Opelika, 316 U. S. 584, 62 S. Ct. 1231, vacated

by 319 U. S. 103, 63 S. Ct. 890 ..........................13,45,46
Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72

S. Ct. 777 ........................................................................12,43
Kelly v. Page, 335 F. 2d 1 1 4 ..............................................  6
Kovacs v. Cooper (1949), 336 U. S. 77, 85, 69 S. Ct.

448, 452 ................................................................... 8,9,26,27
Kunz v. New York, 340 U. S. 290, 71 S. Ct.

313 ........................................................................14,47,51,53
Landry v. Daley (1968), 280 Fed. Supp. 938, 967

(Three Judge Court, N. D. 111., E. D.) .... .................  27
Lanzetta v. New Jersey, 306 U. S. at page 453, 59 S.

Ct., at page 619 ..................................................... 10, 36, 37
Largent v. Texas, 318 U. S. 418, 63 S. Ct. 667 ..........13,45
Linkletter v. Walker, 381 U. S. 618, 85 S. Ct.

1731 ................................................................................. 15,56
Lovell v. Griffin, 303 U. S. 444 -----  7,13,20, 32, 45, 46, 47,62
Mapp v. Ohio, 367 U. S. 643 ......................................... 15, 56



V

Marsh, v, Alabama, 326 U. S. 501, 66 S. Ct.
276 ........................................................... 13,14,45,46,47,50

Miranda v. Arizona, 384 U. S. 436 ................................ 15
Nieomatko v. State of Maryland (1951), 340 U. S. 268,

276, 280, 71 S. Ct. 328, 330, 332 ... .9,14, 32, 33,47,51,55
O’Connor v. Ohio, 385 U. S. 92, 87 S. Ct. 252 ..........15, 56
Poulos v. New Hampshire, 345 U. S. 395, 73 S. Ct.

760, 99 L. Ed. 1165 ..................................... 8,17,28,64,67
Raley v. Ohio, 360 U. S. 423 ................................. 15,56,57
Saia v. People of State of New York, 334 U. S. 558,

68 S. Ct. 1148 ......................................................... 14,51,52
Schneider v. State of New Jersey (1960), 308 U. S.

147, 60 S. Ct. 146 ................................ ...7 ,13,45,46,62
Shuttlesworth v. City of Birmingham, 281 Ala. 542,

206 So. 2d 348, 352, 353 ..................................... 4,9,27,63
Shuttlesworth v. City of Birmingham, 382 U. S. 87,

86 S. Ct. 211 .....................................................15,30,42,55
Sobel v. Adams (1962), 208 Fed. Supp. 324 (S. D.

Fla.) ............................................................................ 27
State v. Cox, 16 A. 2d 508 ..................................... 23,24,25
Staub v. City of Baxley, 355 IT. S. 313, 78 S. Ct.

277 ............................................................13,14,22,45,46,47
Superior Films, Inc. v. Department of Education, 346

IT. S. 587, 74 S. Ct. 286 ..............................................12,43
Teitel Film Corp. v. Cusack, 390 IT. S. 139, 88 S. Ct.

754 .................................................................................. .60,63
Tucker v. Texas, 326 U. S. 517, 66 S. Ct.

274 ..................................................................13,14,45,47,50
United States v. Harriss (1954), 347 IT. S. 612, 74

S. Ct. 808, 98 L. Ed. 989 .............................................  27
United States v. U. S. Klans et al. (1961), 194 Fed.

Supp. 897 (D. C., M. D., Ala. N. D.) . 7
Walker v. City of Birmingham (1967), 388 U. S. 307,

87 S. Ct. 1824 ........2,3,4,7,8,9,11,16,17,18,19,22,24
25, 42, 59, 66, 67, 69

Winters v. New York, 333 U. S. 507, 68 S. Ct. 665 . .11, 40



VI

Statutes Cited.

Alabama Constitution of 1901, Art, 6, Section 140.. 18, 70 
Alabama Supreme Court Eule 47, Title 7, Appendix,

Code of Alabama 1940, Eecompiled 1958 ..............17, 68
General City Code of Birmingham:

Section 2 .........................................................................  16
Section 1159 ............ ............................... 2,4,6,9 ,10,13,40

Textbooks Cited.

Kalven, ‘ ‘ The Concept of the Public Forum,”  the Su­
preme Court Review 1965, pages 1-32 ...................... 7, 22

Micklejohn, Political Freedom, 24-28 .......................... 22

Miscellaneous Cited.

Report on Biots, Civil, Criminal Disorders—Hearings 
Before the Permanent Sub-Committee Investiga­
tions of the Committee on Government Operations 
United States Senate, Part I, Charts at page 14 ..  35



IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1968.

No. 42.

FRED L. SHUTTLESWORTH, 
Petitioner,

vs.
CITY OF BIRMINGHAM, ALABAMA, 

Respondent

On Writ of Certiorari to the Supreme Court of Alabama.

BRIEF FOR RESPONDENT.

STATEMENT.

We do not concede that petitioner’s conduct should be 
dealt with as that of one who was engaging, together 
with a group of 52 persons, in nothing more than a peace­
ful, orderly demonstration upon the sidewalks of the 
City of Birmingham without a permit. It is less than 
realistic to ignore the surrounding relevant circumstances. 
These include not only facts developed in the Record 
in this case, but also those shown in the opinions in the



related case of Walker v. City of Birmingham (1967), 
388 U. S. 307, 87 S. Ct. 1824.1

Some of these revelant circumstances shown by the 
latter case were that petitioner, together with “ many 
others” , was involved in the so-called “ Birmingham 
Movement”  in 1963. Several arrests had been made for 
mass parading without a permit on April 6th and 7th 
and April 9th and 10th. On the latter date, an injunction 
was issued to enjoin mass picketing, mass parading, or 
mass demonstrating without a permit. In defiance of 
the injunction, a march or demonstration was called for 
Good Friday, April 12, 1963, with petitioner Shuttlesworth 
One of its leaders. Some fifty marchers came out of the 
church at 14th Street and 6th Avenue North, but a large 
crowd of Negroes were gathered on the outside. Walker, 
388 U. S., at pages 340, 341. The latter was a crowd of 
some 1,000 to 1500, “ clapping, hollering and whooping” , 
and some of whom followed the marchers and spilled 
out into the street. This gathering was promoted at a 
meeting of the “ Movement”  held the night before at 
which one of the leaders proclaimed: “ Injunction or no 
injunction, we are going to march tomorrow.”  Walker, 
388 U. S., at pages 310, 311.

Earlier the same day, April 11, 1963, in a press release 
signed by this petitioner and other leaders of the “ Move­
ment” , they defied the injunction restraining them from 
violating Section 1159 by holding mass parades without 
a permit but also openly declared they would not obey 
laws they considered unjust. Walker, 388 U. S. 323, 324. 
The mass march or procession held April 12, 1963, di­
rectly carried out this defiant threat to march, which 
they did without making any attempt to obtain a permit,

1 The Good Friday, 1963 parade or demonstration considered 
in Walker was the identical parade or demonstration for which 
petitioner was convicted here. 388 U. S. 310, 311, 319; Peti­
tioner’s Brief in that case, at page 37. Note: Petitioner Shut­
tlesworth was also one of the petitioners in Walker.

— 2 —



in violation of the ordinance and thus in violation of the 
injunction. Walker, 388 U. S. 315. That it could not 
be properly described as a mere peaceful, orderly march 
of 52 civil rights demonstrators upon the sidewalks of 
Birmingham is obvious.

It was a part of the “ Movement”  and a part of a 
planned and controlled takeover of the sidewalks and 
streets by a mob of some 1,000 to 1,500 in furtherance 
of the “ Movement” , in violation of the ordinance and 
the injunction, ultimately resulting in violence and injury 
to persons and property. Walker, 388 U. S. 310, 311. It 
is perhaps true that the March of April 12th was slightly 
less disorderly than the one that followed on April 14, 
1963. However, “ there was a lot of loud hollering going 
on and some people threw rocks”  in the march of April 
12th, and a lot of “ dodging going on”  (A. 29). Officer 
Higginbotham, who was stationed at 18th Street and 5th 
Avenue North, some five blocks from the point of origin 
of the parade or demonstration, and who testified he 
stopped it between 17th and 18th Streets on 5th Avenue, 
stated that the formal part of the parade “ were four 
to six across the sidewalk, all the way across the sidewalk 
on the North side of 5th Avenue heading east” . These 
were on the north sidewalk of 5th Avenue North, but 
there was a. large crowd approaching from the back of 
them. They were all over.”  The group gathering on 
the opposite side and alongside were not white and black 
but were all black. On being asked whether Ke stopped 
the other group, Higginbotham replied, “ Every one 
stopped at this time that I brought it to a halt”  (A. 23). 
It was a mass moving together and obviously was ob­
structing the sidewalk and street.

The defiant marches of April 12th and April 14th were 
conducted by the “ Movement” , of which petitioner was 
a highly ranked leader, without making any effort to dis­

— 3 —



— 4 —

solve the injunction restraining them from holding such 
a mass parade without a permit required by Section 1159. 
Thus, they deliberately refused to avail themselves of 
an easily available and expeditious way to quickly test 
the constitutionality of the ordinance on its face and as 
applied.

While the Court of Appeals of Alabama, in a 2 to 1 
decision, declared Ordinance 1159 unconstitutional, this 
was reversed by the Alabama Supreme Court in a unani­
mous decision. It is significant that the Alabama Supreme 
Court, in its rehearing, had the benefit of this Honorable 
Court’s decision in Walker, which was rendered subse­
quent to that of the Alabama Court of Appeals. Shuttles- 
worth v. City of Birmingham, 281 Ala. 542, 206 So. 2d 
348, 352, 353; Walker v. City of Birmingham, 388 U. S. 
307, 316, 317, 87 S. Ct. 1824, 1830.

Briefly, we here comment on the “ Questions Presented” . 
In a nutshell, the question presented here for determina­
tion is whether or not in the light of the facts in this 
case the Supreme Court of Alabama, in deciding this case 
(206 So. 2d 348, 354), properly relied upon and applied 
Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 
L. Ed. 1049, and Walker v. City of Birmingham, 388 U. S. 
307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210, the established 
line of cases upholding the right of municipalities to 
properly regulate the use of its streets and sidewalks 
for safety and convenience of the public, as distinguished 
from the co-existent and mutually compatible line of cases 
relating to censorship of speech or press activities, such 
as Lovell (handing out handbills), Staub (soliciting union 
memberships in private homes), or Freedman (previewing- 
movies to approve or disapprove their showing).

In his “ Questions Presented” , petitioner has taken a 
somewhat more sophisticated approach. Statements 1 and



2 appear to overlap if, indeed, 2 is not in essence the 
same thing as 1. While 3 injects a new issue not pre­
sented in his petition for certiorari and seems to be some­
what of an afterthought, we think the questions posed in 
1, 2 and 3 are due to he answered in the negative. In our 
Argument, we shall follow the order used by petitioner, 
although this will necessitate treatment of some of the 
same cases in more than one of the three sections of our 
brief.

— 5 —



6

SUMMARY OF ARGUMENT.

I.

A. The Supreme Court of Alabama, in the opinion un­
der review, upheld the conviction of petitioner, one of the 
leaders of the “ Movement”  in Birmingham which came 
shortly after and was patterned after the Albany, Georgia 
“ Movement” , using the same tactics of takeover of the 
streets by repeated mass demonstrations where formal 
marchers were about 40 to 60, but the disorderly psuedo 
spectators assembled by the “ Movement”  which actually 
engaged in the violence numbered in the thousands.

This technique is illustrated by the revealing statement 
of the United States Court of Appeals, Fifth Circuit, in 
Kelly v. Page, 335 F. 2d 114, concerning the Albany 
“ Movement” :

“ The last big demonstration was on July 24, 1962. 
There were only forty marchers but from 3,000 to 
4,000 spectators participated in the ensuing confusion 
and disorder . . . There was testimony that Negro 
spectators on both sides of the street would run out 
into the street and spit at the officers.”

Notwithstanding the injunction issues by the State Cir­
cuit Court, petitioner and his followers engaged in such 
disorderly mass parades or processions on April 12th and 
April 14th, 1963 which became violent mobs in open de­
fiance of the injunction, all Alabama Courts, and all laws 
they considered unjust.

The conviction of petitioner was for violation of Sec. 
1159 of the Birmingham City Code, which is here under 
attack as being facially unconstitutional as a void prior 
restraint upon exercise of free speech. This ordinance is 
set out in the Appendix hereto, at page 73. Its clear 
and manifest purpose is to conserve safety and conven­



— 7 —

ience in the use of the City streets, including sidewalks, 
an obligation and duty of the municipality for the benefit 
of the public as a whole, including petitioner and his 
followers. Cox v. New Hampshire (1941), 312 U. S. 569, 
61 S. Ct. 762, 85 L. Ed. 1049; Cox v. Louisiana (1965), 
379 U. S. 536, 85 S. Ct. 453; Walker v. City of Birming­
ham (1967), 388 U. S. 307, 87 S. Ct. 1824. This duty is 
imposed upon “ municipal authorities as trustees for the 
public (who) have the duty to keep their communities’ 
streets open and available for movement of people and 
property, the primary purpose for which streets are dedi­
cated.”  Schneider v. State of New Jersey (1960), 308 
U. S. 147, 60 S. Ct. 146. The City also had a duty to 
protect the demonstrators in the lawful exercise of their 
constitutional rights. Burton v. Wilmington Parking Au­
thority et al., 365 U. 8. 715, 81 S. Ct. 856, 861, 6 L. Ed. 
2d 45; United States v. U. S. Klans et al. (1961), 194 
Fed. Supp. 897 (D. C., M. D., Ala. N. D.).

In Lovell-Staub-Freedman, the line of cases relied upon 
by petitioner, the matters at issue are quite different. 
They involve pure speech situations such as distribution 
of handbills, soliciting members of a union organization 
in private homes, and censorship of movies. Section 1159 
is not facially void as an improper prior restraint. The 
application for a permit required by it was essential to 
provide necessary information to enable the City to prop­
erly perform its duties to the public and to demonstrators.

B. Cox v. New Hampshire, 312 U. S. 569, supra, is not 
in conflict with Lovell v. Griffin, 303 U. S. 444. Mr. Chief 
Justice Hughes, who wrote both opinions, cited Lovell in 
Cox. They simply have different areas of application. 
Certainly Cox stands as a strong and healthy precedent 
for use of prior restraint in regulating the public forum 
“ as it relates to use of streets, including sidewalks.”  
Kalven, “ The Concept of the Public Forum,”  the Su­
preme Court Review 1965, pages 28-29.



. C. We compare Cox with the instant case, in the light 
of Walker v. City of Birmingham (1967), 388 U. S. 307, 
87 S. Ct. 1824. It is clear the Supreme Court of Alabama 
properly relied upon these cases holding Section 1159 not 
facially unconstitutional and in upholding Petitioner’s 
conviction for its violation. Facts in Cox and the instant 
Shuttlesworth case are remarkably similar. The formal 
part of the instant parade was on the sidewalk as in Cox. 
The number of paraders in the present case was about 
three times the number in each of the separate units in 
Cox. In Cox the licensing authority was granted unlim­
ited discretion to issue or refuse the permit. In the in­
stant case such discretion was not unlimited but related 
to public welfare, peace, safety, etc. In both cases the 
Supreme Courts of New Hampshire and Alabama, re­
spectively, narrowly limited such discretion to a matter 
of safety and convenience in the use of the streets, in­
cluding sidewalks. Please see Appendix, pages 73-74.

Walker recognized “ the strong interest of state and 
local governments in regulating the use of their streets 
and other public places”  (388 U. S. 315, 87 S. Ct. 1829), 
and also suggested the Alabama Courts might give “ the 
licensing authority a narrow and precise scope, as did the 
New Hampshire Courts in Cox v. State of New Hamp­
shire and Poulos v. New Hampshire. . . . Here, just as 
in Cox and Poulos, it could not be assumed that this 
ordinance was void on its face”  (358 U. S. 316, 317, 87 
S. Ct. 1830).

The test of facial constitutionality of an ordinance or 
state statute by this Honorable Court is its constitution­
ality after the state court has construed it. Cox v. New 
Hampshire, 312 U. 8. 569, supra; Kovacs v. Cooper (1949), 
336 U. 8. 77, 85, 69 S. Ct. 448, 452; Dombrowski v. Pfister, 
380 U. S. 479. Such narrowing construction is properly 
applied to conduct occurring prior thereto. Dombrowski, 
380 TJ. S., at page 491, 85 S. Ct., at 1123.



9

D. Section 1159 is valid as construed by the Supreme 
Court of Alabama. The interest of the municipality in 
the protection of public convenience and peace in the 
primary uses of streets and parks for the purposes for 
which they were dedicated should be weighed as against 
the interest in free expression. Nieomatko v. State of 
Maryland (1951), 340 U. S. 268, 276, 280, 71 S. Ct. 328, 
330, 332. Also it is valid as construed because it does 
not deal with pure speech but with “ speech plus” ; that 
is, parading or patrolling or picketing, which may have 
some elements of communication of ideas but is also much 
more in that it may well result in confusion, disorder 
and violence as in this case. Cox v. Louisiana, 379 IT. S. 
554, 85 S. Ct. 464; Cox v. Louisiana, Mr. Justice Black 
dissenting, 379 U. S., at page 584, 85 S. Ct. 671.

Whether the “ weighing of interests”  or the “ speech 
plus” , or both theories are applied, Section 1159 as con­
strued is valid. Cox v. New Hampshire, 312 U. S. 569, 
supra; Walker v. City of Birmingham, 388 U. S. 307.

The rule is well established by state and federal cases 
that an ordinance or statute will be narrowly construed, 
if it can reasonably be done, to save its constitutionality. 
“ Courts are inclined to adopt that reasonable interpreta­
tion of a statute which removes it farthest from possible 
constitutional infirmity.”  Kovacs v. Cooper (1949), 336 
U. 8. 85, 69 S. Ct. 452; Chaplinsky v. State of New Hamp­
shire (1942), 315 IT. S. 568, 62 S. Ct. 766; Cox v. New 
Hampshire (1941), 312 U. S. 569, 61 S. Ct. 762; Shuttles- 
worth v. City of Birmingham (1967), 281 Ala. 542, 206 
So. 2d 348.



l o ­

ll.

A. Section 1159 as written provided “ fair notice”  to 
petitioner that if he participated in a parade without 
first obtaining a permit he would be arrested and con­
victed. The standard for statutory “ fair notice”  is spelled 
out in Lanzetta v. New Jersey, 306 U. S., at page 453, 
59 S. Ct., at page 619:

“ . . . [T]he terms of a penal statute creating a 
new offense must be sufficiently explicit to inform 
those who are subject to it what conduct on their 
part will render them liable to its penalties . . . ”

The first paragraph of Section 1159 proscribes parading 
without a permit. The second paragraph deals with the 
administrative procedures for granting or denying the 
permit. Insofar as “ fair notice”  is concerned, the only 
portion of Section 1159 that is material is the first para­
graph. The first paragraph reads:

“ Sec. 1159. Parading.
“ It shall be unlawful to organize or hold, or to 

assist in organizing or holding, or to take part or 
participate in any parade or procession or other pub­
lic demonstration on the streets or other public ways 
of the city, unless a permit therefor has been secured 
from the Commission.”

The language employed in the first paragraph of Section 
1159 is sufficiently explicit to inform petitioner that to 
participate in a parade without a permit is proscribed. 
Thus, petitioner had “ fair notice”  as required by “ due 
process” .

B. Petitioner also contends that as written, and under 
the prior decision of this Honorable Court, Section 1159 
was unconstitutional because it vested excessive discre­
tion in the Commission to deny the permit and therefore



11

lie could ignore the plain language of the act and parade 
without a permit. Thus he contends that since the prior 
decision of this Court taught him he could ignore Section 
1159, he did not have fair notice in spite of the plain 
language of the act.

It might well be that the state court construction of 
Section 1159 limiting the discretion vested in the Com­
mission to deny permits was necessary to validate the 
enactment, but such construction is not only proper but 
desirable. The case of Winters v. New York, 333 U. S. 
507, 68 S. Ct. 665, makes it clear that Section 1159 means 
what the Alabama Supreme Court construed it to mean. 
In speaking of the effect of a state court’s interpretation 
of an act in the same case, this Honorable Court in Win­
ters, at 333 IT. S., page 514, 68 S. Ct., page 669, said:

“ The interpretation by the Court of Appeals puts 
these words in the statute as definitely as if it had 
been so amended by the legislature.”

This rule has been recognized in many cases, including 
Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 762; and 
Walker v. City of Birmingham, 388 U. S. 307, 87 S. Ct. 
1824.

C. The prior decisions cited and relied upon by peti­
tioner as holding that he could rely on Section 1159 as 
written rather than as construed, and therefore ignore 
the parade permit, fall into four general classifications. 
These are (a) the movie censorship cases, (b) distribution 
of literature and solicitation cases, (c) public assembly 
cases, and (d) the remaining cases.



12

(a)

The movie censorship cases cited and relied upon by 
petitioner are Interstate Circuit, Inc. v. City of Dallas, 
20 L. Ed. 2d 225; Joseph Burstyn, Inc. v. Wilson, 343 
U. S. 495, 72 S. Ct. 777; Gelling v. Texas, 343 IT. S. 960, 
72 S. Ct. 1002; Superior Films, Inc. v. Department of Edu­
cation, 346 IT. S. 587, 74 S. Ct. 286; Commercial Pictures 
Corp. v. Regents, 346 IT. S. 587, 74 S. Ct. 286; Holmby 
Production, Inc. v. Vaughn, 350 IT. S. 870, 76 S. Ct. 117; 
and Freedman v. Maryland, 380 IT. S. 51, 85 8. Ct. 734.

The foregoing movie censorship cases all involve enact­
ments creating bodies to censor the content of speech, that 
is movies, and as such involve pure speech. Section 1159 
is an enactment designed to regulate traffic and any 
regulation of speech incident thereto is strictly speech 
intermingled with conduct. The fact that strict standards 
are required of regulations concerned with pure speech is 
pointed out in both Cox v. Louisiana, 379 IT. S. 536, 85 S. 
Ct. 453; and Amalgamated Food Emp. U. Local 590 v. 
Logan Valley Plaza, 88 S. Ct. 1601 (1968).

Mr. Justice Black and Mr. Justice Douglas would not 
tolerate censorship under any conditions, Freedman v. 
Maryland, 380 IT. S. 51, 85 S. Ct. 734; Interstate Circuit, 
Inc. v. Dallas, 20 L. Ed. 2d 225; and on the other hand 
Mr. Justice Black would not afford any First Amendment 
protection to persons who parade on the streets. Thus, the 
distinction between pure speech cases and those involving 
parading and patrolling and picketing is di-amatized.



13 —

(b)
The distribution of literature and solicitation cases re­

lied upon by petitioner are as follows: Lovell v. Griffin, 
303 U. S. 444, 58 S. Ct. 666; Schneider v. New Jersey, 308 
U. S. 147, 60 S. Ct. 146; Largent v. Texas, 318 U. S. 418, 
63 S. Ct. 667; Jones v. Opelika, 316 U. S. 584, 62 S. Ct. 
1231, vacated by 319 U. S. 103, 63 S. Ct. 890; Staub v. 
City of Baxley, 355 U. S. 313, 78 S. Ct. 277; Cantwell v. 
Connecticut, 310 U. S. 296, 60 S. Ct. 900; Hague v. C, I. O., 
307 U. S. 496, 59 S. Ct. 954; Marsh v. Alabama, 326 U. S. 
501, 66 S. Ct. 276; and Tucker v. Texas, 326 U. S. 517, 
66 8. Ct. 274.

In 1941 this Honorable Court upheld an enactment vir­
tually the same as Section 1159 in the case of Cox v. 
New Hampshire, 312 U. S. 569, 61 S. Ct. 762, and in doing 
so recognized that the foregoing cases had no applica­
tion to enactments such as Section 1159. This Honorable 
Court cited in Cox each and every of the foregoing cases 
that had been decided prior to Cox. The distinction made 
there, and equally applicable here, was that the enact­
ment involved in Cox was narrowly construed in the same 
case, so as not to confer an excessive discretion on the 
official charged with issuing the permit. The cases not 
cited in Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 
762, except for Marsh v. Alabama, 326 H. S. 501, 66 S. 
Ct. 276, and Tucker v. Texas, 326 IT. S. 517, 66 S. Ct. 274, 
were all distinguished for this same reason in Staub v. 
City of Baxley, 355 U. S. 313, 78 S. Ct. 277. These cases 
were distinguished also in Cox v. Louisiana, 379 H. S. 
536, 85 S. Ct. 453, where this Honorable Court held that 
because enactments regulating the use of city streets to 
assure the safety and convenience of the people in their 
use is an exercise of governmental responsibility to insure 
order, they involved “ speech plus” , whereas the cases 
relied on by petitioner were examples of enactments that



— 14 —

did not regulate city streets to assure the safety and con­
venience of the people in their use.

The cases of Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 
276, and Tucker v. Texas, 326 U. S. 517, 66 S. Ct. 274, 
turned on the authority of a person in charge of a private 
company owned town and Federal housing project respec­
tively to exclude those whom they did not want from such 
property to the complete loss of their freedom of speech 
and religion.

(c)

The public assembly cases relied upon by petitioner are 
as follows: Saia v. People of State of New York, 334 U. S. 
558, 68 S. Ct. 1148; Kunz v. New York, 340 U. S. 290, 7i 
S. Ct. 313; and Niemotko v. Maryland, 340 U. S. 268, 71 
S. Ct. 325.

As heretofore noted under II-C (b), the case of Staub 
v. Baxley, 355 U. S. 313, 78 S. Ct. 277, distinguished Kunz 
v. New York, 340 IT. S. 290, 71 S. Ct. 313; and Niemotko 
v. Maryland, 340 U. S. 268, 71 S. Ct. 325, because the 
enactments involved in those cases vested an unbridled 
discretion in the official charged with granting or deny­
ing a permit to arbitrarily deny the right of public as­
sembly. Saia v. New York, 334 U. S. 558, 68 S. Ct. 1148, 
is distinguished on the same ground. As construed, Sec­
tion 1159 does not vest an unbridled discretion in the 
Commission to either grant or deny the permit and con­
sequently this case should be controlled by Cox v. New 
Hampshire, 312 U. S. 569, 61 S. Ct. 762.



— 15 —-

(d)

The remaining cases relied upon by petitioner are Cox 
v. Louisiana, 379 U. S. 536, 85 S. Ct. 453; and Shuttles- 
worth v. City of Birmingham, 382 U. S. 87, 86 S. Ct. 211.

Cox v. Louisiana, 379 U. S. 536, 85 S. Ct. 453, specifically 
recognizes the right of a municipality to regulate the use 
of its streets and recognizes that parades are “ speech 
plus”  and therefore can be regulated. Shuttlesworth v. 
City of Birmingham, 382 U. S. 87, 86 S. Ct. 211, did not 
involve speech, either “ pure”  or “ plus” , and conse­
quently has no relevance. Shuttlesworth turned on a ques­
tion of fair trial.

D. The cases next treated herein were cited by petitioner 
for analogy and are not in point.

Linkletter v. Walker, 381 TJ. S. 618, 85 S. Ct. 1731; 
Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772; and 
O’Connor v. Ohio, 385 U. S. 92, 87 S. Ct. 252, simply held 
that cases such as Mapp v. Ohio, 367 U. S. 643; Escobedo 
v. Illinois, 378 U. S. 478; Miranda v. Arizona, 384 U. S. 
436; and Griffin v. California, 380 U. S. 609, which cases 
establish new rules of criminal procedure and overturned 
prior procedures legally relied upon by public officials 
until these decisions were decided, would not be given 
retroactive effect.

Raley v. Ohio, 360 U. S. 423, involved facts establishing 
entrapment and is of no consequence here.

James v. United States, 366 U. S. 213, refused to sustain 
the conviction of one convicted of attempting to evade 
federal income taxes, because there was a prior decision 
rendered by this Court, and relied upon by petitioner, 
holding that no taxes were due on the particular source 
of income. This Court changed the law prospectively to 
make such fund taxable but would not uphold petitioner’s 
conviction.



— 16

E. Petitioner had “ fair notice”  that his march in forma­
tion along the city sidewalk was in violation of the 
proscription in Section 1159. Cox v. New Hampshire, 312 
U. S. 569, 61 S. Ct. 762, involved a smaller number of 
people than participated in this parade, and the Cox 
parade also took place on that portion of the street known 
as the sidewalk. This Honorable Court, in Walker v. City 
of Birmingham, 388 U. S. 307, 87 S. Ct. 1824, considered 
this same parade to be parading without a permit and 
sustained this very petitioner’s conviction for contempt 
for violating an injunction restraining him from par­
ticipating in any parades without a permit as required 
by Section 1159.

The General City Code of Birmingham is also clear to 
the effect that the sidewalk is part of the street, because 
under Section 2 of said Code we find:

“ Sidewalk. The term ‘ sidewalk’ shall mean that 
portion of a street between the curb line and adjacent 
property line.”

III.

A. The procedural safeguards required of enactments 
creating censorship systems to review books and movies 
prior to their dissemination or showing are different from 
the necessary standards to govern the administrative dis­
cretion exercised in the grant or denial of a parade permit. 
When an enactment creates a system to censor what may 
be said in advance of it being said, that enactment must 
provide a prompt administrative proceeding, and if the 
decision is against the exercise of speech a prompt 
judicial review to be instituted by the censorship officials. 
Freedman v. Maryland, 380 IT. S. 51, 85 S. Ct. 734.

The rule in regard to enactments seeking to regulate 
traffic by requiring a permit to participate in a parade 
rests on entirely different considerations. Such traffic en­



— 17 —

actments must be narrowly drawn so as to limit the dis­
cretion of the official chai'ged with issuing said permit 
to the extent that he can only deny the permit to assure 
the safety and convenience of all the people in their use 
of the streets. Cox v. New Hampshire, 312 U. S. 569, 61 
S. Ct. 762; and Cox v. Louisiana, 379 U. S. 536, 85 S. 
Ct. 453.

Enactments creating censorship systems deal with ‘ ‘ pure 
speech” , whereas enactments regulating the use of the 
streets by requiring parade permits deal with speech in­
termingled with conduct. Amalgamated Food Employees, 
etc. v. Logan Valley Plaza, Inc., 88 S. Ct. 1601 (1968); and 
Cox v. Louisiana, 379 U. S. 536, 85 S, Ct. 453.

B. The normal procedures provided by state law are 
adequate methods to review an administrative denial of a 
parade permit. This is the holding of Cox v. New Hamp­
shire, 312 U. S. 569, 61 S. Ct. 762; Poulos v. New Hamp­
shire, 345 U. S. 395, 73 S. Ct. 760; and Walker v. City of 
Birmingham, 388 U. S. 307, 87 S. Ct. 1824. Thus, a manda­
mus proceeding in Alabama would be sufficient.

Mandamus is afforded an expedited process of review in 
Alabama. See Alabama Supreme Court Rule 47, Title 7, 
Appendix, Code of Alabama 1940, Recompiled 1958.

In addition to a mandamus proceeding, petitioner in 
this particular instance could have obtained an expedited 
review in equity. At the time of his arrest in this case, 
petitioner was under an injunction restraining him not 
to participate in a parade without the permit required by 
Section 1159. Walker v. City of Birmingham, 388 U. S. 
307, 87 S. Ct. 1824. A  motion to “ dissolve” or “modify” 
the injunction offered petitioner another method of ex­
pedited review in this case. Walker v. City of Birming­
ham, 388 IJ. S. 317, 87 S. Ct. 1830, makes this observation 
and points out that Rule 47, referred to above as afford-



— 18 —

mg an expedited review insofar as an injunction proceed­
ing is concerned, also provides an expedited process of 
review had Petitioner chosen to file a motion to “ dissolve” 
or “modify” the injunction.

Alabama Circuit Courts, since Walker v. City of Bir­
mingham, 388 U. S. 307, also know that the decisions of 
this Court require an expedited review in such cases, and 
these courts will comply with the Walker decision. If 
they should fail in this regard, the Alabama Supreme 
Court, under the authority it has to supervise inferior 
courts, will see that they do follow the mandate of 
Walker. Alabama Constitution of 1901, Art. 6, Section 
140.



— 19 —•

ARGUMENT.

I.

Petitioner’s Conviction Should Not Be Reversed Be­
cause of Facial Unconstitutionality as a Void Prior Re­
straint Upon Free Expression; and Petitioner Should Be 
Punished for Failing to Comply With Its Permit Require­
ment.

A.

Introductory Statement.

Many cases are cited by petitioner in the effort to 
sustain the affirmative of the above proposition. We have 
attempted in Part II of our Argument, post pages 35 to 
59, to discuss and demonstrate the inapplicability to the 
instant case of these numerous cases cited by him. Al­
though we shall comment on them again in Part II, we 
shall here consider primarily the applicability of Cox v. 
New Hampshire (1941), 312 U. S. 569; Cox v. Louisiana 
(1965), 379 U. S. 536, 558; and Walker v. City of Bir­
mingham (1967), 388 IT. S. 307, a line of cases involving 
the right of municipalities to reasonably regulate pedes­
trian and vehicular traffic by requiring a permit for 
parading and patrolling on its streets, sidewalks and other 
public ways, as distinguished from the Lovell-Staub- 
Freedman line of cases, which have no application to our
case.



— 20

B.

Cox vs. New Hampshire 
Versus

Lovell vs. Griffin,

Petitioner has bemoaned the demise of Lovell if Cox 
is accepted and applied in this case. Requiem for Lovell 
now is inappropriate because it is either premature or a 
quarter of a century too late. Mr. Chief Justice Hughes 
delivered the opinion of the Court in both cases. The 
latter case was decided March 31, 1941, the former March 
28, 1938, a difference of exactly three years and three 
days. Cox was a unanimous decision of the Court. Lovell 
was a unanimous decision except that Mr. Justice Cardoza 
did not sit. The Court, in Cox, was composed of Mr. Chief 
Justice Hughes and Mr. Justice McReynolds, Mr. Justice 
Stone, Mr. Justice Roberts, Mr. Justice Black, Mr. Justice 
Reed, Mr. Justice Frankfurter, Mr. Justice Douglas and 
Mr. Justice Murphy. The Court, in Lovell, included Mr. 
Chief Justice Hughes and five of the above named Jus­
tices, i. e., Mr. Justice McReynolds, Mr. Justice Stone, 
Mr. Justice Roberts, Mr. Justice Black and Mr. Justice 
Reed.

Since the first case cited in Cox v. New Hampshire, 
312 U. S. 569, 574, is Lovell v. Griffin, 303 U. S. 444, 451, 
it would be most unusual indeed if there is a violent 
conflict in the principles enunciated in Cox that it would 
have occurred to at least one of the six members of the 
Court sitting in both cases if Cox indeed killed Lovell. 
The Court which established the principle and applica­
tion of Lovell knew the difference between it and the 
principle and application of Cox (312 U. S., at pages 574, 
575, 61 S. Ct. 765):

“ [2-4] Civil liberties, as guaranteed by the Con­
stitution, imply the existence of an organized society



— 21

maintaining public order without which liberty itself 
would be lost in the excesses of unrestrained abuses. 
The authority of a municipality to impose regulations 
in order to assure the safety and convenience of the 
people in the use of public highways has never been 
regarded as inconsistent with civil liberties but rather 
as one of the means of safeguarding the good order 
upon which they ultimately depend. The control of 
travel on the streets of cities is the most familiar 
illustration of this recognition of social need. Where 
a restriction of the use of highways in that relation 
is designed to promote the public convenience in the 
interest of all, it cannot be disregarded by the at­
tempted exercise of some civil right which in other 
circumstances would be entitled to protection. One 
would not be justified in ignoring the familiar red 
traffic light because he thought it his religious duty 
to disobey the municipal command or sought by that 
means to direct public attention to an announcement 
of his opinion. As regulation of the use of the streets 
for parades and processions is a traditional exercise 
of control by local government, the question in a 
particular case is whether that control is exerted so 
as not to deny or unwarrantedly abridge the right 
of assembly and the opportunities for the communi­
cation of thought and the discussion of public ques­
tions immemorially associated with resort to public 
places. Lovell v. Griffin, 303 TJ. S. 444, 451, 58 S. Ct. 
666, 668, 82 L. Ed. 949; Hague v. Committee for 
Industrial Organization, 307 U. S. 496, 515, 516, 59 
8. Ct. 954, 963, 964, 83 L. Ed. 1423; Schneider v. 
State of New Jersey, 308 U. S. 147, 160, 60 S. Ct. 
146, 150, 84 L. Ed. 155; Cantrell v. Connecticut, 310 
U. S. 296, 306, 307, 60 S. Ct. 900, 904, 84 L. Ed. 1213, 
128 A. L. R. 1352.”



— 22 —

The progeny of Cox includes such cases as Cox v. 
State of Louisiana, 379 U. S. 536 and 379 U. S. 559; Ad- 
derly v. State of Florida, 385 U. S. 39, 87 S. Ct. 242, 17 L. 
Ed. 2d 149; and Walker v. City of Birmingham, 388 U. S. 
307, 87 S. Ct. 1824. On the other hand, the progeny of 
Lovell includes Staub v. Baxley, 355 U. S. 313, 78 S. Ct. 
277, 2 L. Ed. 2d 302; and perhaps to some extent Freed­
man v. State of Maryland, 380 U. S. 51, 85 S. Ct. 734, 
although the latter case is concerned with censorship 
of movies and in no manner related to any sort of use 
of streets or public ways. The point, however, is that 
the respective doctrines of the two lines of cases do not 
conflict but are clearly distinguishable.

In an article by Professor Harry Ivalven, Jr., of the 
University of Chicago Law School,2 he considers the 
public forum cases beginning with Lovell and on through 
the two cases of Cox v. Louisiana, 379 U. S. 536 and 379 
U. S. 559. He notes the emphasis of Mr. Justice Goldberg 
on “ speech plus”  as opposed to “ pure speech”  in de­
scribing the activity in a demonstration, parade or march 
upon public streets, sidewalks and public ways, especially 
in the vicinity of a court house. The Supreme Court 
Review, 1965, page 22. At page 26 he expresses the idea 
that “ speech plus”  and “ pure speech” , and the “ weigh­
ing of conflicting interests between municipal control of 
streets and First Amendment Freedom”  theories might 
well give way to the Meiklejohn Analogy to the employ­
ment of Roberts Rules of Order in a town meeting to 
provide necessary order which inherently requires reason­
able restraints to freedom of speech.3

Professor Kalven then evaluates Cox v. New Hamp­
shire (op. cit. note 2, supra, pages 28-29):

2 “ The Concept of the Public Forum” , the Supreme Court 
Review 1965, pages 1-32.

3 Meiklejohn, Political Freedom, 24-28.



— 23 —

“ But there is little if anything left today to the 
idea that prior licensing is bad per se, regardless 
of the criteria used. It now appears that the his­
torical reaction was against general licensing with 
unlimited or unspecified grounds for exercise of dis­
cretion. The recent Times Film case has definitively 
put to rest any question whether all prior restraints 
are necessarily bad. And, in any event, Cox v. New 
Hampshire stands as a strong and healthy precedent 
for use of a prior restraint, at least in regulating 
the public forum” (Emphasis added).

Regardless of which of the three tests is applied, Cox 
stands firm as a healthy precedent in cases like the pres­
ent one.

C.

The New Hampshire Cox Cases (a Comparison With 
This Case in the Light of Walker).

Petitioner stands convicted of violating Section 1159 
of the General City Code of Birmingham of 1944, which 
is set out in full in the Appendix hereto. Section 1159 
proscribes participating in a parade or procession without 
permit. The same conduct is proscribed by the enactment 
involved in Cox. Each involved a conviction for violation 
by the respective petitioner of a criminal statute or ordi­
nance construed by the respective Supreme Courts of 
New Hampshire and Alabama narrowly and precisely 
after arrest and conviction.

This Court, in the case of Cox v. New Hampshire, 312 
U. S. 569, 61 S. Ct. 762, affirmed the State court’s decision 
in State v. Cox, 16 A. 2d 508, in the only case decided 
by this Court we have found that is squarely in point 
with our case. It is readily apparent from reading these 
two cases that both the conduct of petitioner here and 
the ordinance involved herein are remarkably similar to



24 —

the conduct and enactment involved in the New Hamp­
shire case. In both instances, the parade or procession 
took place on the sidewalk portion of the street. In 
neither instance was an effort made to secure a permit 
or license for the parade. In both instances the parade 
or procession was a prearranged affair. In State v. Cox, 
the court determined that the defendants understood that 
under the statute a permit was required. No serious 
contention could be made in this case that petitioner did 
not understand that a permit was required, and Walker 
v. City of Birmingham, 388 U. S. 307, 315, 87 S. Ct. 1824, 
1829 (1967), involving this same parade, leaves no doubt 
on this score.

The statute for which Cox was convicted of violating, 
as written by the Legislature of New Hampshire,4 con­
ferred complete and unbridled discretion in the Licensing 
Board to license or refuse to license parades or proces­
sions on the public streets of Manchester, New Hamp­
shire :

“By motions and exceptions, appellants raised the 
question that the statute was invalid under the Four­

4 The statute construed in this case was construed for the 
first time by the New Hampshire Supreme Court after Cox was 
convicted for violating it. He ultimately appealed to the 
United States Supreme Court, where a unanimous Court af­
firmed his conviction. The New Hampshire statute involved 
appears in Cox v. State of New Hampshire, 312 IJ. S. 571, 572, 
61 S. Ct. 763, 764. Sec. 2 thereof is quoted in the body of 
the opinion: “No theatrical or dramatic representation shall be 
performed or exhibited, and no parade or procession upon any 
public street or way, and no open-air public meeting upon any 
grounds abutting thereon, shall be permitted, unless a special 
license therefor shall first be obtained from the selectmen of the 
town or from a licensing committee for cities hereinafter pro­
vided for.” Secs. 3, 4 and 5 of this Act appear in Footnote 1, 
312 IJ. S. 573, 61 S. Ct. 764, supra. These sections provide for 
the creation of the Licensing Board, for the written application 
for the permit specifying the date and hour of the parade or 
procession, and for the payment of a license fee for each parade 
or procession up to $300 and a penalty for its violation of a 
monetary fine not to exceed $500,



— 25

teenth Amendment of the Constitution of the United 
States in that it deprived appellants of their rights 
of freedom of worship, freedom of speech and press, 
and freedem of assembly, vested unreasonably and 
unlimited arbitrary and discriminatory powers in the 
licensing authority, and was vague and indefinite.”

Those contentions were overruled by the New Hamp­
shire Supreme Court in State v. Cox, 191 New Hamp­
shire . . . ,  16 A. 2d 508—Cox (1941), 312 U. S. 569, 571.

It is crystal clear that the statute as written by the 
New Hampshire Legislature was constitutionally ques­
tionable on its face. But the United 'States Supreme 
Court did not consider it as written, but only as the un­
bridled discretion of the Licensing Board was appropri­
ately narrowed and limited by the Supreme Court of New 
Hampshire.

Mr. Justice Stewart, speaking for this Honorable Court 
in Walker v. City of Birmingham (1967), 388 U. S. 307, 
316, 87 S. Ct. 1830, suggests Section 1159 because of gen­
erality of language used would raise substantial constitu­
tional issues. However, he recognized that a State court 
construction of the ordinance might well give it a narrow 
and precise, application to remove such constitutional 
problems. It was the failure of the Walker petitioners to 
avail themselves of the opportunity to seek state court 
construction by a motion to dissolve the injunction which 
prompted his statement (388 U. S., at pages 316, 317):

“ The petitioners, however, did not even attempt to 
apply to the Alabama courts for an authoritative con­
struction of the ordinance. Had they done so, those 
courts might have given the licensing authority 
granted in the ordinance a narrow and precise scope, 
as did the New Hampshire courts in Cox v. State of 
New Hampshire and Poulos v. State of New Hamp­
shire, both supra. Cf. Shuttlesworth v. City of Bir-



26

mingham, 382 U. S. 87, 91, 86 S. Ct. 211, 213, 15 L. Ed. 
2d 176; City of Darlington v. Stanley, 239 S. C. 139, 
122 S. E. 2d 207. Here, just as in Cox and Poulos, it 
could not be assumed that this ordinance was void on 
its face.”

If we are able to understand the English language, 
when using the sentence, “ Here, just as in Cox and Poulos, 
it could not be assumed that this ordinance was void on 
its face” , this Honorable Court was saying two things: 
First, that the question of whether or not a given ordi­
nance or state statute is void upon its face is not deter­
mined by this Honorable Court as it was written but as it 
was construed by the State courts; and, second, that Sec­
tion 1159 would admit of a narrowing construction to save 
its constitutionality just as was true of the statute in Cox. 
Please see Kovacs v. Cooper (1949), 336 U. S. 77, 85, 69 
S. Ct. 448, 452, where conviction for violation of an ordi­
nance prohibiting use on public streets, alleys or thorough­
fares of sound trucks was upheld by this Court because it 
had been narrowly construed by the State Court in the de­
cision appealed from to mean only sound trucks emitting 
a “ loud and raucous”  noise in its application to the con­
duct of the defendant. This case also notes the contrast 
between statutes or ordinances aimed at censorship of 
speech and those designed to promote public safety or 
convenience. Said Mr. Justice Reed (336 IT. S. 82, 83, 69 
S. Ct. 451, 452):

“ When ordinances undertake censorship of speech 
or religious practices before permitting their exercise, 
the constitution prevents their enforcement”  but “ the 
police power of a state extends beyond health, morals 
and safety and comprehends the duty, within consti­
tutional limitations, to protect the well-being and 
tranquility of the community” ; and at 336 U. S. 88, 
69 S. Ct. 454: “ To enforce freedom of speech in dis­



— 27 —

regard of the rights of others would be harsh and 
arbitrary. ’ ’

Mr. Justice Reed in Kovacs y. Cooper, also, perhaps 
more significantly, observes (336 U. S. 85, 69 S. Ct. 452): 

“ We accept the determination of New Jersey that 
Sec. 4 applies only to vehicles with sound amplifiers 
emitting loud and raucous noises. Courts are inclined 
to adopt that reasonable interpretation of a statute 
which removes it farthest from possible constitutional 
infirmity. Cox v. New Hampshire, 312 U. S. 569, 575, 
576, 61 S. Ct. 762, 765, 85 L. Ed. 1049, 133 A. L. R. 
1396; Cf. United States v. C. I. 0., 335 U. S. 106, 120, 
68 S. Ct. 1349, 1356”  (Emphasis added).

Before returning to Walker, we comment further on the 
well recognized rule that courts indulge a presumption of 
validity in considering a statute or ordinance. Shuttles- 
worth v. City of Birmingham, 281 Ala. 542, 206 So. 2d 348, 
350; Goldblatt v. Town of Hempstead (1961), 369 U. S. 
590, 595-596, 82 S. Ct. 987, 8 L. Ed. 2d 130; Fleming v. 
Nestor (1960), 363 U. S. 603, 611, 80 S. Ct. 1367, 4 L. Ed. 
2d 1435; Landry v. Daley (1968), 280 Fed. Supp. 938, 967 
(Three Judge District Court, N. D. of 111., E. D .); Sobel 
v. Adams (1962), 208 Fed. Supp. 324 (S. D. Fla).

Also, the well established rule is that a narrow inter­
pretation of a statute or ordinance will be adopted where 
necessary to save it from unconstitutionality. Shuttles- 
worth v. City of Birmingham (1967), 281 Ala. 542, 206 
So. 2d 348, 350; Chaplinsky v. State of New Hampshire, 
312 IT. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049; Cf. United 
States v. Harriss (1954), 347 U. S. 612, 74 S. Ct. 808, 98 
L. Ed. 989, Landry v. Daley (1968), 280 Fed. Supp. 938, 
967 (Three Judge Court, N. D. 111., E. D.).

Mr. Justice Harlan, dissenting in Dombrowski v. Pfister 
(1965), 380 U. S. 479, beg. 498, 85 S. Ct. 1116, beg. 1127, 
disagrees with the majority of five members of this Hon­
orable Court in holding the United States District Court



— 28 —

should enjoin state prosecutions under the Louisiana Sub­
versive Activities and Communist Control Law and its 
Propaganda Control Law pending non-criminal proceed­
ings for state declaratory judgments narrowly construing 
such laws, and further holding and declaring two sections 
of one of said acts [364 (4) and 364 (7)] facially void and 
unenforceable, apparently because they were deemed not 
to admit of any saving construction by any court.5 Mr. 
Justice Harlan pointed out that state and federal courts 
alike have a duty to give a narrowing construction to an 
ordinance or statute in the effort to save as much of it 
as possible. He cites: Fox v. State of Washington, 236 
U. S. 273, 35 S. Ct. 383; and Poulos v. New Hampshire, 
345 U. S. 395, 73 S. Ct. 760, 99 L. Ed. 1165.

Mr. Justice Brennan, speaking for the majority in Dom- 
browski v. Pflster, 380 U. S. 479, supra,, recognized that 
ordinarily a state court construction of a state statute 
should be obtained before it is considered by this Court. A 
criminal proceeding would be preferred in ordinary cir­
cumstances to accomplish such result. However, the federal 
injunction and the state declaratory judgment method of 
obtaining properly narrowing construction in the state 
courts was considered necessary because the charge that 
enforcement of such statutes for purposes of harassment 
without expectation of ultimate successful prosecution was 
an issue and because many different criminal prosecutions 
would be required to illuminate “ the contours of an other­
wise vague prohibition” . Mr. Justice Brennan, in 380 U. S., 
at page 491, 85 S. Ct. 1123, then in the text and Note 7, 
elaborated on the non-applicability of the doctrine o f ab­
stention as follows:

“ As we observed in Baggett v. Bullitt, supra, 377 
U. S. at 378, 84 S. Ct., at 1326, this cannot be satisfac­
torily done through a series of criminal prosecutions,

5 A statute substantially identical to 364 (4) had been pre­
viously invalidated by this Court, 380 U. S. 494.



— 29 —•

dealing as they inevitably must with only a narrow 
portion of the prohibition at any one time, and not 
contributing materially to articulation of the statutory 
standard. We believe that those affected by a statute 
are entitled to be free of the burdens of defending 
prosecution, however expeditious, aimed at hammer­
ing out the structure of the statute piecemeal, with no 
likelihood of obviating similar uncertainty for others. 
Here, no readily apparent construction suggests itself 
as a vehicle for rehabilitating the statutes in a single 
prosecution, and appellants are entitled to an injunc­
tion. The State must, if it is to invoke the statutes 
after injunctive relief has been sought, assume the 
burden of obtaining a permissible narrow construction 
in a noncriminal proceeding before it may seek modi­
fication of the injunction to permit future prosecu­
tions.7

“ On this view of the ‘ vagueness’ doctrine, it is 
readily apparent that abstention serves no legitimate 
purpose where a statute regulating speech is properly 
attacked on its face, and where, as here, the conduct 
charged in the indictments is not within the reach of 
an acceptable limiting construction readily to be an­
ticipated as the result of a single criminal prosecution 
and is not the sort of ‘hardcore’ conduct that would 
obviously be prohibited under any construction.” 
(Emphasis added.)

‘7 Our cases indicate that once an acceptable limiting 
construction is obtained, it may be applied to conduct 
occurring prior to the construction, see Poulos v. State 
of New Hampshire, 345 U. S. 395, 73 S. Ct. 760, 97 
L. Bd. 1105; Cox v. State of New Hampshire, 312 XT. S. 
569. 61 S. Ct. 762, 85 L. Bd. 1049; Winters v. People 
of State of New York, 333 U. S. 507, 68 S. Ct. 665, 92 
L. Ed. 840, provided such application affords fair warn­
ing to the defendants, see Lanzetta v. State of New 
Jersey, 306 IT. S. 451, 59 S. Ct. 618, 83 L. Ed. 888; cf. 
Harrison v. NAACP, 360 U. S. 167, 179, 79 S. Ct. 1025, 
1031, 3 L. Ed. 2d 1152.’



30 —

Possibly a more direct statement of Mr. Justice Bren­
nan in Dombrowski of the point we are making—that un­
less the statute or ordinance is on its face so invalid that 
no reasonable construction could save it from unconsti­
tutionality a state statute or ordinance is by this Honor­
able Court deemed facially unconstitutional only after the 
state courts have had opportunity to give such narrowing 
construction—appears at page 497 of 380 U. S. (1126 of 85 
S. Ct.) :

“ The precise terms and scope of the injunctive re­
lief to which appellants are entitled and the identity 
of the appellees to be enjoined cannot, of course, be 
determined until after the District Court conducts the 
hearing on remand. The record suffices, however, to 
permit this Court to hold that, without the benefit of 
limiting construction, the statutory provisions on 
which the indictments are founded are void on their 
face; until an acceptable limiting construction is ob­
tained, the provisions cannot be applied to the activ­
ities of SCEF, whatever they may be”  (Emphasis 
added).

We now return to Walker. In the light of the language 
used by Mr. Justice Stewart, speaking for the majority, it 
is clear the doctrine of Cox and Poulos apply to this case 
rather than that of Lovell-Staub-Freedman. In parade 
permit cases which concern safety and convenience in the 
use of the streets, sidewalks and public ways, the “ hard­
core”  conduct to which Mr. Justice Brennan refers in 
Dombrowski v. Pfister, 380 U. S., at pages 491-492, and in 
his concurring opinion in Shuttlesworth v. City of Bir­
mingham (1965), 382 U. S. 87, 99, 86 S. Ct. 211, is the 
act of participating in a parade or procession without 
making application for and securing the permit required 
by Section 1159. Any overbreadth of discretion in the 
City Commission in its issuance was removed by the Su­
preme Court of Alabama. The only issue now before this



31 —-

Honorable Court in harmony with the reasoning of Dom- 
browski, Kovacs, Poulos and Cox is whether the Alabama 
Supreme Court has so construed 1159 that such discretion 
must be exercised within sufficiently narrow limits that the 
ordinance shall operate not as a device for censorship or 
to control or limit what is said but shall limit its opera­
tion in a non-discriminatory way to enable the City to 
perform its duty of preserving safety and convenience of 
the public in the use of its streets, including sidewalks 
and public ways, consistent with the use for which they 
were intended. It is immaterial that the ordinance may 
have been questionable on its face prior to such construc­
tion, and it is immaterial that this construction was given 
after the arrest of petitioners.

If this ordinance was foredoomed to complete destruc­
tion because it was void and unconstitutional on its face 
to the extent no reasonable state court construction could 
possibly save it, then the words of this Honorable Court 
quoted and relied upon by the Supreme Court of Alabama 
in its opinion and decision in this case would, we submit, 
be most strange if not entirely inexplicable.6

6 We quote from Shuttlesworth v. City of Birmingham, 206
So. 2d 348, at page 353, in which the Alabama Supreme Court 
in relying upon Walker uses this language: ‘The petitioners, 
however, did not even attempt to apply to the Alabama courts 
for an authoritative construction of the ordinance. Had they 
done so, those courts might have given the licensing authority 
granted in the ordinance a narrow and precise scope, as did 
the New Hampshire Courts in Cox v. State of New Hampshire 
(312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049) and Poulos v. 
State of New Hampshire (345 U. S. 395, 73 S. Ct. 760, 97 L. 
Ed. 1105), both supra. Cf. Shuttlesworth v. City of Birming­
ham, 382 U. S. 87, 91, 86 S. Ct. 211, 213, 15 L. Ed. 2d 176; 
City of Darlington v. Stanley, 239 S. C. 139, 122 S. E. 2d 207. 
Here, just as in Cox and Poulos, it could not be assumed that 
this ordinance was void on its face (Emphasis supplied) (87 S. 
Ct. 1830)” ; and; “The petitioners in the case of Walker, et al. 
v. City of Birmingham, 388 U. S. 307, 87 S. Ct. 1824, 18 L. Ed. 
2d 1210, decided by the Supreme Court of the United States on 
June 12, 1967, asserted that they were free to disobey the in­
junction because Section 1159, on which the injunction was



— 32 —

D.

Section 1159 Is Valid as Construed, Under the “ Weigh­
ing of Interests” as Well as the “ Speech Plus” Doc­
trine. Both Recognize the Right of Municipalities to 
Exercise Reasonable Control Over Its Streets, Includ­
ing Sidewalks, for Safety and Convenience in Their 
Use as Set Forth in Cox v. New Hampshire.

In a concurring opinion in Niemotko v. State of Mary­
land (1951), 340 IT. S. 268, 276, 280, 71 S. Ct. 328, 330, 332, 
Mr. Justice Frankfurter states the problems: “ (H)ow to 
reconcile the interest in allowing free expression of ideas 
in public places with protection of the public peace and 
of the primary uses of streets and parks . . . ”  In the course 
of the opinion, many cases are compared or distinguished. 
He discusses Lovell v. Griffin, 303 IT. S. 444, 58 S. Ct. 666, 
and without noticing any conflict with its holding com­
ments on Cox v. New Hampshire, 312 IT. S. 569, supra, 
saying:

“ Cox v. State of New Hampshire, 312 U. S. 569, 61 
S. Ct. 762, 85 L. Ed. 1049, made it clear that the 
United States Constitution does not deny localities 
the power to devise a licensing system if the exercise 
of discretion by the licensing officials is appropriately 
confined. A statute requiring a permit and license 
fee for parades had been narrowly construed by the

based, had been administered in an arbitrary and discrimina­
tory fashion. In support of that contention those petitioners 
had sought to introduce evidence in the trial court to the effect 
that a few days before the injunction issued requests for per­
mits to picket had been made to a member of the City Com­
mission and one request had been rudely refused and that this 
same official had later made it clear that he was without power 
to grant the permit alone, since the issuance of permits was 
the responsibility of the entire Commission. The Supreme Court 
of the United States, in answering that contention, said as fol­
lows: ‘Assuming the truth of the proffered evidence, it does not 
follow that the parade ordinance is void on its face.’ ”



— 33

State courts. The license could be refused only for 
‘ considerations of time, place and manner so as to 
conserve the public convenience’, and the license fee 
was ‘ to meet the expense incident to the administra­
tion of the act and the maintenance of public order 
in the matter licensed 312 U. S. at pages 575-576, 577, 
61 S. Ct., at pages 765, 766, 85 L. Ed. 1049. The licens­
ing system was sustained even though the tax, rang­
ing from a nominal amount to $300, was determined 
by the licensing officials on the facts of each case.”  
Niemotko v. State of Maryland, 340 U. S. 280, 71 S. 
Ct. 332.

The case of Cox v. State of Louisiana, 379 U. S. 536, 
555, 85 8. Ct. 453, 464, illustrates the principle that march­
ing, picketing or patrolling is more than pure speech: 
‘ ‘ We emphatically reject the notion urged by Appellant 
that the First and Fourteenth Amendments afford the 
same kind of freedom to those who would communicate ideas 
by conduct such as patrolling, marching and picketing on 
streets and highways, as these amendments afford to those 
who communicate ideas by pure speech.”

At a later point in his opinion Mr. Justice Goldberg 
clearly demonstrates that Cox v. New Hampshire, 312 
U. 8. 569, supra, squares with the above statement of 
principle (379 U. S. 558, 85 S. Ct. 466):

‘ ‘ It is, of course, undisputed that appropriate, lim­
ited discretion, under properly drawn statutes or ordi­
nances, concerning the time, place, duration or man­
ner of use of the streets for public assemblies may be 
vested in administrative officials, provided that such 
limited discretion is ‘ exercised with “ uniformity of 
method of treatment upon the facts of each applica­
tion, free from improper or inappropriate considera­
tions and from unfair discrimination”  * * * [and 
with] a “ systematic, consistent and just order of



34 —

treatment, with reference to the convenience of public 
use of the highways * # Cox v. State of New
Hampshire, supra, 312 U. S., at 576, 61 S. Ct., at 766; 
see Poulos v. State of New Hampshire, supra.”

At the very heart of the solution of the problem of safe 
and orderly use of the streets, including sidewalks, for 
parades and processions is the requirement of a permit to 
be issued after proper application:

“ The obvious advantage of requiring application 
for a permit was noted as giving the public authori­
ties notice in advance so as to afford opportunity for 
proper policing. And the Court further observed that 
in fixing time and place, the license served to prevent 
confusion by overlapping parades or processions, to 
secure convenient use of the streets by other travelers, 
and to minimize the risk of disorder.”

Cox v. New Hampshire, 312 U. S. 576.

In this case, open defiance of Section 1159 and all other 
laws petitioners and the “Movement” considered unjust, 
pursuant to which they mounted the April 12, 1963 march 
accompanied by a thousand or more pseudo-spectators 
filling the sidewalks and spilling out into the street, re­
sulting in a taking over of the street and precipitating 
acts of mob violence, differentiates it from the completely 
peaceful conduct involved in the Cox v. New Hampshire 
case, 312 U. S. 569, supra. It also illustrates the very 
critical danger this Honorable Court warned against in 
Cox v. State of Louisiana, 379 U. S., at page 554, 85 S. Ct. 
464:

“The constitutional guarantee of liberty implies 
the existence of an organized society maintaining 
public order, without which liberty itself would be 
lost in the excesses anarchy. The control of travel 
on the streets is a clear example of governmental 
responsibility to insure this necessary order. A re­



— 35

striction in that relation, designed to promote the 
public convenience in the interest of all, and not 
susceptible to abuses of discriminatory application, 
cannot be disregarded by the attempted exercise of 
some civil right which, in other circumstances, would 
be entitled to protection.”

Mr. Justice Black expressed the same warning in his 
dissenting opinion in Cox v. Louisiana, concerning picket­
ing or marching, especially to or in the vicinity of a 
court house, when he said (379 U. S. 584, 85 S. Ct. 671): 

“Experience demonstrates that it is not a far step 
from what to many seems the earnest, honest, patri­
otic, kind-spirited multitude of today, to the fanatical, 
threatening, lawless mob of tomorrow.” 7

It is appropriate to note that the City Hall is a com­
bined City Hall and Court House in which is located the 
Recorders Courts. Mr. Justice Brennan, in Ms dissent in 
Walker, says that the march was to the City Hall. 388 
IT. S. 341, 87 8. Ct. 1842. This brings the instant case 
directly within the dissenting opinions in Cox v. Louisiana 
(No. 49), banning picketing and parading near a court 
house. See Opinion of Mr. Justice Black, joined by Mr. 
Justice White and Mr. Justice Harlan, 379 IT. S. 581-585,

7 These words of Mr. Justice Black in January 1965 were 
prophetic of what has happened in 1965 and the years that 
have followed. The streets of many cities have become battle­
grounds. Arson, looting, sniping have mounted every year: 
In 1965 there were 5 riots; in 1966 20 riots; in 1967 76 riots; 
during these riots 12 law officers and 118 civilians were killed; 
civilians injured were 2424; cases of arson 7985; cities where 
rioters interfered with firemen 66; cities where rioters included 
snipers 38; estimated property loss $504,200,000. Please see Re­
port on Riots, Civil, Criminal Disorders—Hearings Before the 
Permanent Sub-Committee Investigations of the Committee on 
Government Operations, United States Senate, Part I, Charts, 
at page 14. Riots, looting, arson, sniping, with their toll of 
property damage, personal injuries and death, continue to 
mount in 1968 and apparently will far exceed any prior year.



— 36

85 S. Ct. 470-472; Mr. Justice Clark, 379 U. S. 585-587, 
85 S. Ct. 472-473.

In closing Part I, we respectfully contend this Honor­
able Court’s opinion in Walker, written by Mr. Justice 
'Stewart, was correct when he said, “Here, just as in Cox 
and Poulos, it could not be assumed the ordinance was 
void on its face.” In an article appearing in The Supreme 
Court Review (1967), written by Sheldon Tefft, James 
Parker Hall, Professor of Law of Chicago University, 
entitled “Neither Above The Law Nor Below It, A Note 
On Walker Vs. Birmingham” , in which he agrees with 
the majority opinion, he uses the expression, “The ordi­
nance does not seem to be obviously void.” This simply 
means that 1159, as written, was open to the narrowing 
interpretation placed upon it by the Alabama Supreme 
Court appropriately restricting the scope of discretion 
vested in the City Commission and/so construed is bind­
ing upon petitioner and sustains his conviction for its 
violation.

II.

Petitioner Had Fair Notice as Acquired by Due Process 
of Law.

A.

Petitioner Had Fair Notice Within the Rules of 
Lanzetta and Bouie.

Under Section II of petitioner’s argument, he contends 
that his conviction must be reversed because it imposes 
criminal liability upon him without the fair notice re­
quired by due process of law. In support of this conten­
tion he cites Lanzetta v. New Jersey, 306 U. S. 451, 59 
S. Ct. 618; and Bouie v. City of Columbia, 378 U. S. 347, 
84 S. Ct. 1697.



37

Lanzetta involved an enactment that made it an of­
fense for anyone who had been convicted three times of 
being a disorderly person to be a member of any gang 
“ consisting of two or more persons” . Since the only 
purported definition of “ gang”  was found in that phrase 
in the statute reading: “ consisting of two or more per­
sons” , this Court correctly held that defendant had not 
received fair notice.

The rule found in Lanzetta v. New Jersey, 306 U. S.,
at page 453, 59 S. Ct., at page 619, is discussed as follows: 

“ The applicable rule is stated in Connally v. Gen­
eral Const. Co., 269 U. S. 385, 391,46 S. Ct. 126,127, 70 
L. Ed. 322: ‘ That the terms of a penal statute creat­
ing a new offense must be sufficiently explicit to in­
form those who are subject to it what conduct on 
their part will render them liable to its penalties is 
a well recognized requirement, consonant alike with 
ordinary notions of fair play and the settled rules 
of law; and a statute which either forbids or requires 
the doing of an act in terms so vague that men of 
common intelligence must necessarily guess at its 
meaning and differ as to its application violates the 
first essential of due process of law.”

The enactment in Bouie proscribed going upon the 
lands of another after notice not to do so. The enactment 
provided for notice by posting a notice “ in four con­
spicuous places on the borders of such land prohibiting 
entry thereon. . . . ”

It is obvious under this enactment that the warning 
must precede the trespass. The facts, however, upon which 
petitioners were convicted did not reveal any advance 
warning, and it was only after construction by the Su­
preme Court of South Carolina that anyone had notice 
that a conviction could be had on notice given subsequent 
to the entry.



The facts in Bouie reveal that Negroes, as invitees, 
entered a drug store in Columbia, South Carolina. They 
were invited to all departments in the store except the 
restaurant portion. On this occasion the petitioners sat 
in a booth in the restaurant area, and were subsequently 
told to leave. Upon their refusal they were arrested and 
convicted under the trespass statute referred to above.

This Honorable Court, after pointing out that the South 
Carolina statute could be distinguished from the gangster 
statute in Lanzetta because the trespass enactment was 
not vague and uncertain but “ was admirably narrow and 
precise” , nevertheless held it did not meet the fair no­
tice requirement of due process. In this regard, this 
Court said, in Bouie v. City of Columbia, 378 U. S., at 
page 352; 84 S. Ct., at pages 1701, 1702:

“ The thrust of the distinction, however, is to pro­
duce a potentially greater deprivation of the right 
to fair notice in this sort of case, where the claim is 
that a statute precise on its face has been unfore- 
seeably and retroactively expanded by judicial con­
struction, than in the typical ‘ void for vagueness’ 
situation. When a statute on its face is vague or 
overbroad, it at least gives a potential defendant 
some notice, by virtue of this very characteristic, that 
a question may arise as to the coverage, and that it 
may be held to cover his contemplated conduct. When 
a statute on its face is narrow and precise, however, 
it lulls the potential defendant into a false sense of 
security, giving him no reason even to suspect that 
conduct clearly outside the scope of the statute as 
written will be retroactively brought within it by 
an act of judicial construction. If the Fourteenth 
Amendment is violated when a person is required 
‘ to speculate as to the meaning of penal statutes’, 
as in Lanzetta, or to ‘ guess at [the statute’s] mean­



39 —

ing and differ as to its application’, as in Connally, 
the violation is that much greater when, because the 
uncertainty as to the statute’s meaning is itself not 
revealed until the court’s decision, a person is not 
even afforded an opportunity to engage in such 
speculation before committing the act in question.”

It is readily apparent that Section 1159 does no violence 
to the fair notice requirement of due process. The first 
paragraph of Section 1159 is the proscribing part and 
certainly affords fair notice that participating in a parade 
without a permit is proscribed. This paragraph reads: 

“ Sec. 1159. Parading.
“ It shall be unlawful to organize or hold, or to as­

sist in organizing or holding, or to take part or par­
ticipate in any parade or procession or other public 
demonstration on the streets or other public ways of 
the city, unless a permit therefor has been secured 
from the Commission.”

Section 1159 is not vague so as to require speculation 
as to its meaning, as in Lanzetta, and it is not necessary 
to “  ‘ guess at [its] meaning and differ as to its applica­
tion’, as in Connally” . The construction the Alabama Su­
preme Court placed on Section 1159 in no way changed 
the first paragraph of that section. The limiting effect of 
that Court’s construction related solely to the administra­
tive procedures required by Section 1159. There was no 
effort to enlarge the scope of the proscription of 1159 by 
the Alabama Supreme Court. The first paragraph, which 
actixally sets out the offense and gives notice of the pro­
scription involved, remained the same before and after 
construction. Thus, it is clear that Section 1159 does 
afford the fair notice required by the due process clause 
of the Constitution. It certainly complies with the rule 
announced by Lanzetta and Bouie.



— 40 —

B.

Petitioner Could Not With Impunity Presume at the Time 
He Participated in the Enjoined March Which Vio­
lated Section 1159 That the Supreme Court of Ala­
bama Could Not or Would Not Construe Section 1159 
to Require a Narrow, Precise and Non-Discriminatory 
Exercise of Discretion in the Issuance or Denial of 
the Permit.

In arguing that he was free to ignore Section 1159 be­
cause of its alleged facial unconstitutionality in that it 
vested an unbridled discretion in the Commission to grant 
or not to grant a permit, petitioner has relied upon many 
cases that have no relevance to the point. It must be 
remembered that Section 1159 is obviously aimed at the 
regulation of the use of the City streets and ways of the 
City of Birmingham for the safety and convenience of its 
citizens. The activities covered by Section 1159 may or 
may not have as their purpose the communication of ideas 
or philosophies. But in all cases the orderly use of such 
streets for the safety and convenience of the public is a 
legitimate and proper concern of municipal authorities. 
Such activities all involve “ speech plus”  and not merely 
“ pure speech” .

There can be no doubt that Section 1159 gave petitioner 
“ fair notice”  that to participate in a parade without a 
permit was proscribed, and the construction placed on 
Section 1159 by the Alabama Supreme Court is as valid 
as if said ordinance had been amended by the City govern­
ing body prior to petitioner’s arrest and conviction. The 
case of Winters v. New York, 333 IT. S. 507, 68 S. Ct. 665, 
authoritatively establishes this point. The Winters case 
involved an arrest and conviction of petitioner prior to 
the State Court’s interpretation of its obscenity statute, 
the basis for the charge against petitioner. The effect of



— 41

the State Court’s construction of the statute was discussed 
at 333 U. S., pages 514, 515, 68 S. Ct. 669, 670:

“ The Court of Appeals by this authoritative inter­
pretation made the subsection applicable to publica­
tions that, besides meeting the other particulars of 
the statute, so massed their collection of pictures and 
stories of bloodshed and lust ‘ as to become vehicles 
for inciting violent and depraved crimes against the 
person’. Thus, the statute forbids the massing of 
stories of bloodshed and lust in such a way as to in­
cite to crime against the person. This construction 
fixes the meaning of the statute for this case. The 
interpretation by the Court of Appeals puts these 
words in the statute as definitely as if it had been so 
amended by the legislature. Hebert v. State of Lou­
isiana, 272 II. S. 312, 47 S. Ct. 103, 104, 71 L. Ed. 270, 
48 ALR 1102; Skiriotes v. Florida, 313 U. S. 69, 79, 
61 S. Ct. 924, 930, 85 L. Ed. 1193. We assume that 
the defendant, at the time he acted, was chargeable 
with knowledge of the scope of subsequent interpre­
tation. Compare Lanzetta v. State of New Jersey, 306 
U. S. 451, 59 S. Ct. 618, 83 L. Ed. 888.”  (Emphasis 
supplied.)

The Winters case is conclusive to the effect that a State 
Court can place a limiting construction upon enactments 
that might be equally susceptible of an overbroad or vague 
construction, and the statute as so construed becomes the 
statute in such case. Winters also makes it clear that the 
enactment can be construed after conviction of defendant 
and in the same case. The Winters case, as does respond­
ent herein, recognizes that the enactment as written must 
give “ fair notice”  as required by “ due process” . This, 
however, is of no great moment in this instance because 
as noted earlier in II-A, the first paragraph of Section 
1159 meets the burden of “ fair notice” .

Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 762, is 
squarely in point, both as to law and facts, insofar as



42 —

establishing the right of the Alabama Supreme Court to 
construe Section 1159 following petitioner’s arrest and 
conviction. In fact, the New Hampshire statute which 
regulated parading, did not even purport to establish 
standards for the issuance or denial of the permit prior 
to its construction by the State court. Nevertheless, this 
Court in a unanimous opinion upheld the validity of the 
New Hampshire statute as construed.

In Walker v. City of Birmingham, 388 IT. S. 307, 87 S. 
Ct. 1824, involving an appeal from a contempt of court 
conviction for parading in violation of Section 1159, this 
Honorable Court specifically noted that Section 1159 could 
be subjected to a narrowing construction, and in effect 
invited such construction by the State Court. This Court 
in Walker pointed out that the State “ courts might have 
given the licensing authority granted in the ordinance a 
narrow and precise scope, as did the New Hampshire 
courts in Cox v. State of New Hampshire and Poulos v. 
State of New Hampshire, . . . ”

In Shuttlesworth v. City of Birmingham, 382 U. S. 87, 
86 S. Ct. 211, this Court reaffirmed the principle of Win­
ters and Cox. Shuttlesworth involved the validity of an 
ordinance which was construed by the State court to save 
it from attack as unconstitutional.8 * * * * * 14 This construction 
came after conviction of the defendant.

8 This is made clear in Mr. Justice Brennan’s concurring
opinion, 382 U. S., at page 99: “ I join the Court’s opinion on
my understanding that Middlebrooks v. City of Birmingham 
is being read as holding that Section 1142 applies only when
a person: (a) stands, loiters or walks on a street or sidewalk
so as to obstruct free passage, (b) is requested by an officer to 
;move on, and (c) thereafter continues to block passage by loi­
tering or standing on the street. It is only this limiting con­
struction which saves the statute from the constitutional chal­
lenge that it is overly broad. Moreover, because this construction
delimits the statute to ‘the sort of “hard-core” conduct that 
would obviously be prohibited under any construction’, Dom- 
browski v. Pfister, 380 U. S. 479, 491-492, 85 S. Ct. 1116, 1124,
14 L. Ed. 2d 22, it may be legitimately applied to such conduct 
occurring before that construction” (Emphasis added).



43 —

C .

Oases Relied Upon by Petitioner Cited in Part I and 
Referred to in Part II of His Brief Are Not in Point. 
These Cases Did Not Teach Petitioner That He Could 
Ignore Section 1159.

These cases, so petitioner argues, have the effect of 
teaching him that he could ignore the permit requirement 
of such ordinance and therefore he has been denied due 
process in that he did not have “ fair notice”  at the time 
he defied the state court injunction which enjoined him 
from participating in a mass parade or procession with­
out applying for a permit as required by Section 1159. 
We shall undertake to show that these cases are not ap­
plicable and shall deal with them as groups or indi­
vidually.

The cases erroneously relied upon by petitioner are 
divided into groups as follows: (a) “ The Movie Censor­
ship Cases” , (b) Distribution of Literature and Solicita­
tion Cases, (c) Public Assembly Cases, and (d) The Re­
maining Cases.

(a)

The Movie Censorship Cases.

Petitioner cites the following cases, all involving the 
validity of enactments creating movie review boards to 
censor movies prior to their presentation to the public. 
Interstate Circuit, Inc. v. City of Dallas, 20 L. Ed. 2d 225; 
Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 
777; Gelling v. Texas, 343 U. S. 960, 72 S. Ct. 1002; Su­
perior Films, Inc. v. Department of Education, 346 U. S. 
587, 74 S. Ct. 286; Commercial Pictures Corp. v. Regents, 
346 IT. S. 587, 74 S. Ct. 286; Holmby Production, Inc. v. 
Vaughn, 350 U. S. 870, 76 S. Ct. 117; Freedman v. Mary­
land, 380 IT. S. 51, 85 S. Ct. 734.



44

The movie censorship cases all involve the regulation 
of pure speech and as such are subject to a very limited 
amount of regulation by the state. In fact, Mr. Justice 
Black and Mr. Justice Douglas are of the opinion that 
all censorship of movies violates the First Amendment 
and they “ would put an end to all forms and types of 
censorship and give full literal meaning to the command 
of the First Amendment” . Freedman v. Maryland, 380 
U. S. 51, 85 S. Ct. 734; and Interstate Circuit, Inc. v. 
Dallas, 20 L. Ed. 2d 225. In contrast, Mr. Justice Black 
would not afford First Amendment protection to those 
who parade on the streets. In Amalgamated Food Emp. 
U. Local 590 v. Logan Valley Plaza, 88 S. Ct. 1601, he 
said: “ And of course picketing, that is patrolling, is not 
free speech and not protected as such.”  See also Cox 
v. Louisiana, 379 U. S., at page 578.

The movie censorship cases all involve enactments di­
rected to the regulation of pure speech. Section 1159 
regulates speech only incidentally to its regulation of 
traffic. The act of parading involves elements of both 
speech and conduct, i. e., patrolling or marching, and 
can be subjected to controls that would not be constitu­
tionally permissible in the case of pure speech. Amalga­
mated Food Emp. U. Local 590 v. Logan Valley Plaza, 
88 S. Ct. 1601 (1968).

It should also be noted that insofar as these cases are 
concerned, they could not teach petitioner that he could 
presume Section 1159 was unconstitutional prior to its 
construction by the Alabama Supreme Court. This Hon­
orable Court, in Interstate Circuit, Inc. v. City of Dallas, 
20 L. Ed. 2d 225, at least inferentially recognized the 
right of the state courts to construe such censorship en­
actments after the act of censoring. This follows from 
this Court’s apparent recognition that the State Court 
could have narrowly defined the ordinances dealt with 
in Interstate. “ Nor did the Court of Civil Appeals pro­



—  45

vide much enlightenment or a narrowing definition of the 
ordinances.”

Thus, the State Courts are even permitted to construe 
enactments creating censorship boards, which are the 
most flagrant prior restraints of speech, and such con­
struction will prevail in this Court. Certainly, a State 
Court’s limiting construction of an ordinance regulating 
the use of the streets for the benefit, safety and conveni­
ence of the public ought to be anticipated by one who 
violates its plain proscription, as did petitioner herein.

(b)

Distribution of Literature and Solicitation Cases.

Petitioner cites the following cases, all either involving 
the validity of enactments regulating the distribution of 
handbills and pamphlets, or the solicitation of funds or 
members for various causes.

Lovell v. Griffin, 303 U. S. 444, 58 S. Ct. 666; Schneider 
v. New Jersey, 308 U. S. 147, 60 S. Ct. 146; Largent v. 
Texas, 318 U. S. 418, 63 S. Ct. 667; Jones v. Opelika, 316 
U. S. 584, 62 S. Ct. 1231, vacated by 319 U. S. 103, 63 
S. Ct. 890; Staub v. City of Baxley, 355 IT. S. 313, 78 
S. Ct. 277; Cantwell v. Connecticut, 310 IT. S. 296, 60 S. Ct. 
900; Hague v. C. I. O., 307 IT. S. 496, 59 S. Ct. 954; Marsh 
v. Alabama, 326 IT. S. 501, 66 S. Ct. 276; Tucker v. Texas, 
326 IT. S. 517, 66 S. Ct. 274.

The foregoing cases, like the movie censorship cases, 
also involve pure speech, and as such may not be regu­
lated as would be permissible in eases wherein the speech 
is intermingled with conduct. Amalgamated Food Em­
ployees, etc. v. Logan Valley Plaza, Inc., 88 S. Ct. 1601 
(1968).

In Lovell v. Griffin, 303 IT. S. 444, 58 S. Ct. 666, an at­
tempt was apparently made to inject conduct into the act



46 —

of passing out literature on the theory that the enactment 
regulated only the distribution and not the publication. 
This theory was rejected by this Court:

“The ordinance cannot be saved because it relates 
to distribution and not to publication. ‘Liberty of 
circulating is as essential to that freedom as liberty 
of publishing; indeed, without the circulation the 
publication would be of little value!”

Shortly after Lovell v. Griffin, supra, was decided, this 
Court decided the case which respondent conceives to be 
identical to the instant case, i. e., Cox v. New Hampshire, 
312 U. S. 569, 61 S. Ct. 762. In Cox v. New Hampshire, 
supra, this Honorable Court upheld the validity of an 
enactment, virtually the same as Section 1159, except the 
statute in Cox was completely without any standards gov­
erning the discretion of the administrative officer charged 
with issuance of permits until the New Hampshire Su­
preme Court narrowly limited such discretion in the same 
case for which petitioner there was arrested. This Honor­
able Court sustained the convictions of petitioner Cox, and 
upheld the statute as construed by the New Hampshire 
Court. This Court, in its Cox v. New Hampshire decision, 
cited Lovell v. Griffin, supra; Schneider v. State, 308 U. S. 
147, 60 S. Ct. 146; Hague v. C. I. 0., 307 IT. S. 496, 59 
S. Ct. 954; and Cantwell v. Connecticut, 310 IT. S. 296, 60 
S. Ct, 900. Since this Court approvingly cited Lovell, 
Hague, Schneider and Cantwell in Cox v. New Hampshire, 
supra, the only conclusion that can be drawn is that the 
Court found those cases not to be in conflict with the 
holding in Cox.

The only cases set out under “ (b)” above that were not 
considered in Cox v. New Hampshire, supra, are Largent, 
v. Texas, 318 IT. S. 418, 63 S. Ct, 667; Jones v. Opelika, 
316 IT. S. 584, 62 S. Ct. 1231, vacated by 319 IT. S. 103, 63 
S. Ct. 890; and Staub v. City of Baxley, 355 IT. S. 313, 78



•— 47 —

S. Ct, 277, all of which stand for the Lovell v. Griffin 
principle, which was found to be not in conflict with Cox, 
and all of which were decided after Cox; and also two 
other cases, Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 
276; and Tucker v. Texas, 326 U. S. 517, 66 S. Ct. 274, 
which were also decided after Cox but involved com­
pletely different principles. These two cases will be dealt 
with later at page 49.

Cox v. New Hampshire, supra, did not involve pure 
speech, and as the statute was construed it did not vest 
an unbridled discretion in state authorities to either issue 
or deny the parade permit.

It should be noted that except for Marsh v. Alabama, 
326 U. S. 501, 66 S. Ct. 276; and Tucker v. Texas, 326 U. S. 
517, 66 S. Ct. 274; all of the cases listed under “ ( b ) ”  
above, as well as Kunz v. New York, 340 TJ. S. 290, 71 
S. Ct. 312, and Miemotko v. Maryland, 340 TJ. S. 268, 71 
8. Ct. 325, listed under “ ( c ) ”  below, were cited in Staub 
v. City of Baxley, 355 IT. S. 313, 78 S. Ct. 277, because 
the enactments as construed by the State courts left the 
exercise of First Amendment rights in the unbridled dis­
cretion of the official charged with granting the permit. 
It should also be noted that the enactments involved in 
those, cases did not regulate conduct such as marching or 
picketing. It therefore clearly appears that unbridled 
discretion in “ pure speech”  or “ freedom of association”  
situations is the critical point of Staub Baxley, 355 
IT. S. 313. That case, at IT. S., page 322, cites the cases 
referred to above as involving the same constitutional 
question:

“ Iii Cantwell v. State of Connecticut, 310 IT. S. 296, 
60 S. Ct. 900, 84 L. Ed. 1213, this Court held invalid 
an act which proscribed soliciting money or any 
valuable thing for ‘ any alleged religious, charitable 
or philanthropic cause’, Gen. St. 1930, Sec. 6294, un­



48 —

less the ‘ cause is approved by the secretary of the 
public welfare council of the state’. Speaking for a 
unanimous Court, Mr. Justice Roberts said: ‘ It will 
be noted, however, that the act requires an applica­
tion to the secretary of the public welfare council of 
the state; that he is empowered to determine whether 
the cause is a religious one, and that the issue of a 
certificate depends upon his affirmative action. If he 
finds that the cause is not that of religion, to solicit 
for it becomes a crime. He is not to issue a certificate 
as a matter of course. His decision to issue or refuse 
it involves appraisal of facts, the exercise of judgment 
and the formation of an opinion. He is authorized to 
withhold his approval if he determines that the cause 
is not a religious one. Such a censorship of religion 
. . . is a denial of liberty protected by the First 
Amendment and included in the liberty which is 
within the protection of the Fourteenth.

“  ‘ [T]o condition the solicitation of aid for the per­
petuation of religious views or systems upon a license, 
the grant of which rests in the exercise of a determi­
nation by state authority as to what is a religious 
cause, is to lay a forbidden burden upon the exercise 
of liberty protected by the Constitution.’ 310 U. S., 
at pages 305, 307, 60 S. Ct. at page 904. To the same 
effect are Lovell v. City of Griffin, supra, 303 U. S. at 
pages 451, 452, 58 S. Ct. at pages 668, 669; Hague v. 
C. I. O., 307 U. S. 496, 516, 59 S. Ct. 954, 964, 83 L. 
Ed. 1423; Schneider v. State of New Jersey, Town of 
Irvington, 308 H. S. 147, 163, 164, 60 S. Ct. 146, 151, 
152, 84 L. Ed. 155; Largent v. State of Texas, 318 
IT. S. 418, 422, 63 S. Ct. 667, 669, 87 L. Ed. 873; Jones 
v. City of Opelika, 319 U. S. 103, 63 S. Ct. 890, 87 
L. Ed. 1290, adopting per curiam on rehearing the 
dissenting opinion in 315 U. S. 584, 600-602, 62 S. Ct. 
1231, 1240, 1241, 86 L. Ed. 1691; Niemotko v. State of



49 —

Maryland, 340 U. S. 268, 271, 71 S. Ct. 325, 327, 95 
L. Ed. 267; Kunz v. People of State of New York, 
340 U. S. 290, 293, 71 S. Ct. 312, 314, 95 L. Ed. 280.”

It should also be noted that in each of such cases cited 
in Staub the particular ordinance or statute was reviewed 
in the United States Supreme Court and held invalid after 
construction in the respective state courts. These cases 
may be further distinguished from the instant case. Here, 
Section 1159 as construed by the Alabama Supreme Court 
is unquestionably valid. It does not involve “ pure speaeh”  
or “ freedom of association”  but is confined to safety and 
convenience in the use of the streets and ways of the City. 
This latter distinction is made clear in Cox v. Louisiana, 
379 U. S. 536, 85 S. Ct. 453, at U. S. pages 553, 554, S. Ct. 
page 464, wherein Mr. Justice Goldberg said:

“ Appellant, however, contends that as so construed 
and applied in this case, the statute is an unconstitu­
tional infringement on freedom of speech and assem­
bly. This contention on the facts here presented raises 
an issue with which this Court has dealt in many de­
cisions, that is, the right of a state or municipality to 
regulate the use of city streets and other facilities to 
assure the safety and convenience of the people in 
their use and the concomitant right of the people of 
free speech and assembly. See Lovell v. City of Griffin, 
303 U. S. 444, 58 S. Ct. 666, 82 L. Ed. 949; Hague v. 
C. I. O., 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed. 1423; 
Schneider v. State of New Jersey, 308 U. S. 147, 60 
S. Ct. 146, 84 L. Ed. 155; Thornhill v. State of Ala­
bama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Cant­
well v. State of Connecticut, 310 U. S. 296, 60 S. Ct. 
900, 84 L. Ed. 1213; Cox v. State of New Hampshire, 
312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049; Largent v. 
State of Texas, 318 U. S. 418, 63 S. Ct. 667, 87 L. Ed. 
873; Saia v. People of State of New York, 334 U. S. 
558, 68 S. Ct. 1148, 92 L. Ed. 1574; Kovacs v. Cooper,



— 50

336 IT. S. 77, 69 S. Ct. 448, 93 L. Ed. 513; Niemotko v. 
State of Maryland, 340 U. S. 268, 71 S. Ct. 325, 328, 
95 L. Ed. 267, 280; Kurtz v. People of State of New 
York, 340 U. S. 290, 71 S. Ct. 312, 95 L. Ed. 280; 
Poulos v. State of New Hampshire, 345 IT. S. 395, 73 
S. Ct. 760, 97 L. Ed. 1105.

“ From these decisions certain clear principles 
emerge. The rights of free speech and assembly, while 
fundamental in our democratic society, still do not 
mean that everyone with opinions or beliefs to express 
may address a group at any public place and at any 
time. 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 on the 
streets is a clear example of governmental responsibil 
ity to insure this necessary order. A restriction in that 
relation, designed to promote the public convenience 
in the interest of all, and not susceptible to abuses of 
discriminatory application, cannot be disregarded by 
the attempted exercise of some civil right which, in 
other circumstances, would be entitled to protec­
tion . . . ”

The remaining two cases under “ ( b ) ”  are Marsh v. 
Alabama, 326 IT. S. 501, 66 S. Ct. 276; and Tucker v. Texas, 
326 U. S. 517, 66 S. Ct. 274.

Each of these cases involved the arrest and conviction 
of members of the sect known as “ Jehovah’s Witnesses”  
for the dissemination of their views in a private company 
owned town and a Federal housing project respectively, in 
violation of their First Amendment freedoms. The charge 
in effect in each case was “ Trespass After Warning” .

The focal point in issue in each case was the authority 
or right of the person in charge of the properties to ex­
clude those whom they did not want from such property



51 —

to the complete loss of their freedom of speech and re­
ligion.

Nothing in either of these cases teaches petitioner herein 
that he could ignore ordinances regulating the use of the 
streets for the safety and convenience of all the citizens.

( c )

Public Assembly Cases.

The following cases all involve the regulation of public 
assemblies. The enactments involved are different and 
have different purposes, but each in its own way was ap­
plied to regulate a public assembly.

Saia v. People of State of New York, 334 U. S. 558, 68 
S. Ct. 1148; Kunz v. New York, 340 U. S. 290, 71 S. Ct. 
312; Niemotko v. Maryland, 340 U. S. 268, 71 S. Ct. 325.

Petitioners in the three cases above were convicted for 
holding public assemblies. The thrust of the proscription 
in each case is different but all vested an unbridled dis­
cretion in the state to grant or deny the right of “ public 
assembly” . These cases are such that the justification 
for the state’s regulation was outweighed by the interest 
represented by the First Amendment liberty involved.

Saia v. People of State of New York, supra-, involved 
an enactment that proscribed the use of radios, loudspeak­
ers, etc., in such a manner that other people were annoyed. 
Section 3 of the enactment reads as follows:

“ Section 3. Exception.—Public dissemination,
through radio, loudspeakers, of items of news and 
matters of public concern and athletic activities, shall 
not be deemed a violation of this section provided 
that the same be done under permission obtained from 
the Chief of Police.”



— 52

Petitioner in Saia was a Jehovah’s Witness minister 
who lectured over a loudspeaker in a city park on Sun­
days. When the permit for such activity expired, he made 
application for a new permit. His application was denied 
because of alleged annoyance to certain people in the 
vicinity of the park. Petitioner then conducted lectures 
without benefit of the permit and was arrested and con­
victed.

This Court held that after construction by the state 
court Section 3 of the act vested an unbridled discretion 
in the Chief of Police to either grant or deny permission 
to use the park for public assembly.

To demonstrate the firm entrenchment of the rules re­
lating to the regulation of pure speech, we quote from 
Mr. Justice Douglas, speaking for the Court at 334 U. S., 
page 561, 68 S. Ct., page 1150:

“ . . . Unless we are to retreat from the firm posi­
tions we have taken in the past, we must give freedom 
of speech in this case the same preferred treatment 
that we gave freedom of religion in the Cantwell ■ case, 
freedom of the press in the Griffin case, and freedom, 
of speech and assembly in the Hague case.”

Following this statement the Court in Saia, 334 U. S. 
558, 68 S. Ct. 1148, in a footnote at U. S. Page 561, Mr. 
Justice Douglas speaking for the Court, recognized that 
New Hampshire Cox is not inconsistent with these rules, 
but is merely an application of the same rules to a prop­
erly construed enactment regulating the use of the streets. 
The footnote is number 2 and reads:

“ Cox v. New Hampshire, 312 U. S. 569, 577, 578, 
61 S. Ct. 762, 763, 85 L. Ed. 1049, 133 ATT?, 1396, did 
not depart from the rule of these earlier cases but re­
emphasized the vice of the type of ordinance we have 
here. Davis v. Massachusetts, 167 U. S. 43, 17 S. Ct. 
731, 42 L. Ed. 71, was distinguished in the Hague



— 53

case, 307 U. S. pages 514-516, 59 S. Ct. pages 963, 964, 
84 L. Ed. 1423, which likewise involved an ordinance 
regulating the use of public streets and parks. It 
was there said, ‘ We have no occasion to determine 
whether, on the facts disclosed, the Davis case was 
rightly decided, but we cannot agree that it rules the 
instant case. Wherever the title of streets and parks 
may rest, they have immemorially been held in trust 
for the use of the public and, time out of mind, have 
been used for purposes of assembly, communicating 
thoughts between citizens, and discussing public ques­
tions. Such use of the streets and public places has, 
from ancient times, been a part of the privileges, im­
munities, rights and liberties of citizens. The privi­
lege of a citizen of the United States to use the streets 
and parks for communication of views on national 
questions may be regulated in the interest of all; it 
is not absolute, but relative, and must be exercised 
in subordination to the general comfort and conveni­
ence, and in consonance with peace and good order; 
but it must not, in the guise of regulation, be abridged 
or denied’.

“ We adhere to that view. Though the statement 
was that of only three Justices, it plainly indicated 
the route the majority followed, who on the merits 
did not consider the Davis case to be controlling.”

The case of Kunz v. New York, 340 U. S. 290, 71 S. Ct. 
312, involved an ordinance that proscribed public worship 
meetings on the streets without first obtaining a permit 
from the city police commissioner.

The facts reveal that petitioner, an ordained Baptist 
minister, obtained the required permit for the year of 
1946. This permit was revoked in November 1946 be­
cause “he had ridiculed and denounced other religious 
beliefs in his meetings” . Petitioner continued to speak 
without the permit until his arrest in September 1948.



— 54 —

The only issue before the Court was the speech activity 
of 1948. The defendant was not charged for any prior 
years. This Court held the ordinance vested an unbridled 
discretion in the police commissioner to either grant or 
deny the permit:

“Disapproval of the 1948 permit application by the 
police commissioner was justified by the New York 
courts on the ground that a permit had previously 
been revoked ‘for good reason’. It is noteworthy that 
there is no mention in the ordinance of reasons for 
which such a permit application can be refused. This 
interpretation allows the police commissioner, an ad­
ministrative official, to exercise discretion in denying 
subsequent permit applications on the basis of his 
interpretation, at that time of what is deemed to be 
conduct condemned by the ordinance. We have here, 
then, an ordinance which gives an administrative 
official discretionary power to control in advance the 
right of citizens to speak on religious matters on the 
streets of New York. As such, the ordinance is 
clearly invalid as a prior restraint on the exercise of 
First Amendment rights.”

After determining that the enactment was void as a 
prior restraint on the exercise of First Amendment free­
doms, the Court specifically pointed out that First Amend­
ment liberties could nevertheless be regulated to prevent 
serious interference with normal usage of streets and 
parks:

“Although this Court has recognized that a statute 
may be enacted which prevents serious interference 
with normal usage of streets and parks, Cox v. State
of New Hampshire, 1941, 312 IT. S. 569, 61 S. Ct. 762, 
85 L. Ed. 1049, we have consistently condemned 
licensing systems which vest in an administrative 
official discretion to grant or withhold a permit upon 
broad criteria unrelated to proper regulation of pub­
lic places.” (Emphasis ours.)



— 55 —

Petitioners in Niemotko v. Maryland, 340 U. S. 268, 71 
S. Ct. 325, were Jehovah’s Witnesses who conducted 
religious services in a public park and were convicted 
for disorderly conduct. These petitioners were denied 
permits on several occasions, but on the third Sunday fol­
lowing denials of permits for the preceding Sundays, 
petitioners conducted the meetings without benefit of per­
mit. In this case there was no statutory authority re­
quiring a permit, but a custom existed whereby the Park 
Commissioner issued such permits. The arrest and con­
victions was for disorderly conduct based upon the ab­
sence of a permit. The conviction was overturned because 
the inevitable result was to place an absolute prohibition 
upon pure speech in the particular situation. It did not 
involve regulation of picketing or parading on the streets 
or public ways and has no application to this case. In 
fact, it notes and distinguishes New Hampshire Oox, as 
wre have previously noted at page 31 of this brief.

( d )

The Remaining Cases.
The only remaining cases cited by petitioner in support 

of his theory that Section 1159 is facially void and there­
fore he could ignore the permit requirement are Cox v. 
Louisiana, 379 IT. S. 536, 85 S. Ct. 453; and Shuttlesworth 
v. City of Birmingham, 382 U. S. 87, 86 S. Ct. 211. Cox v. 
Louisiana, supra, has been dealt with at length in this 
brief at pages 33-35 and will not be discussed further 
at this point.

Shuttlesworth did not involve speech, either mixed or 
pure. It was a “ due process” case relating to “ fair trial” . 
It turned on the question of whether the trial court based 
it decision on the subsequent construction of Section 1142 
or as that section read prior to construction. The ordi­
nance as written was in the alternative and proscribed



56 —

blocking the sidewalk and also failing to move on after 
a request by a police officer. The complaint filed by the 
city also charged the offense in the alternative. After 
petitioner’s conviction the Appellate Court, in a different 
case, construed that section to require proof of both 
blocking the sidewalk and refusal to obey the lawful 
command of an officer. This Court accepted that construc­
tion to validate the ordinance but concluded that it was 
possible that the trial Judge may have convicted solely 
on evidence relating to blocking the sidewalk and not on 
evidence that petitioner refused to obey the officer; or to 
the contrary he may have convicted because the defend­
ant refused to obey the officer and at the same time have 
found the evidence did not establish that the defendant 
blocked the sidewalk. This Court reached this conclusion 
because the trial court, at the time of the trial, did not 
have benefit of the Court’s construction. Thus, it is clear 
that this case has no relevance to the instant case.

D.

Raley v. Ohio, 360 U. S. 423, 79 S. Ct. 1257; Linkletter v. 
Walker, 381 U. S. 618, 85 S. Ct. 1731; Johnson v. New 
Jersey, 384 U. S. 719, 86 S. Ct. 1772; O’Connor v. 
Ohio, 385 U. S. 92, 87 S. Ct. 252; and James v. United 
States, 366 U. S. 213, 81 S. Ct. 1052, Have No Rele­
vance to the Instant Case.

The cases set out above are completely without rele­
vance insofar as the instant case is concerned. Linkletter, 
Johnson and O’Connor simply held that cases such as 
Mapp v. Ohio, 367 U. S. 643; Escobedo v. Illinois, 378 
U. S. 478; Miranda v. Arizona, 384 U. S. 436; and Griffin v. 
California, 380 U. S. 609, which cases established new rules 
of criminal procedure and overturned prior procedures 
legally relied upon by public officials until these cases 
were decided, would not be given retroactive effect.



57

The facts in Raley v, Ohio, 360 U. S. 423, established 
that the Ohio Un-American Activities Commission misled 
petitioners into the belief that said petitioners did not 
have to testify before said Commission, but could rely on 
their constitutional right against self-incrimination. Pe­
titioners took the Commission at its word and refused to 
testify. They were subsequently cited for contempt by 
said Commission and convicted because Ohio by statute 
granted immunity to persons testifying before said Com­
mission.

This is entrapment in its classic form, and of no rele­
vance to the issues involved here. Petitioner wasn’t told, 
and had no reason to believe that he could parade without 
the permit. In fact, Cox v. New Hampshire, 312 U. S. 569, 
61 S. Ct. 762, taught him he must secure said permit.

In James v. United States, 366 U. S. 213, petitioner was 
convicted of willfully attempting to evade federal income 
taxes. The taxes he attempted to evade were those al­
leged to be owed on funds embezzled that year. A prior 
decision of this Honorable Court had held that embezzled 
funds are not to be included in the taxable income of the 
embezzler in the year in which they are misappropriated. 
James overruled this decision, thereby making such em­
bezzled funds taxable, but reversed petitioner’s conviction.

This case is not in point because Cox v. New Hampshire, 
312 U. S. 569, 61 S. Ct. 762, decided over a quarter of a 
century ago by a unanimous court, and many times by this 
Honorable Court approved in a line of cases, the most re­
cent one being Amalgamated Food Employees, etc. v. 
Logan Valley Plaza, Inc., 88 S. Ct. 1601 (May 20, 1968), 
continues to stand for the proposition that persons who 
desire to parade or march along city streets may properly 
be required to secure a permit in order that municipal 
authorities be able to limit the amount of interference 
with use of the sidewalks by other members of the public



— 58 —

by regulating the time, place and manner of the parade 
or march. In no event can petitioner complain he was 
not fully advised by this Honorable Court by the teach­
ing of Cox and the many cases reaffirming it of the conse­
quences of his illegal conduct in this case.

E.

Petitioner Had Fair Notice That His March in Forma­
tion Along the Sidewalk Was a Parade or Proces­

sion Within the Proscription of Section 1159.

Petitioner also contends that Section 1159 fails to give 
“ fair notice”  because although clear on its face that 
parades were proscribed, petitioner could not be expected 
to know that his march down the sidewalk would be 
treated as such. He contends that he could not know 
either that his march was of a type proscribed or that 
such march taking place on the sidewalk was proscribed. 
These contentions, however, ignore the teaching of Cox 
v. New Hampshire, 312 IT. S. 569, 61 S. Ct. 762, which 
should have taught petitioner that a march such as his 
was within the proscription of Section 1159, even though 
it took place on the sidewalk. Cox v. New Hampshire, 
supra, involved a sidewalk march involving a smaller 
group than in this case. In Cox v. New Hampshire, supra, 
a unanimous Court said:

“ There appears to be no ground for challenging 
the ruling of the state court that Appellants were in 
fact engaged in a parade or procession upon the 
public streets. As the state court observed: ‘ It was a 
march in formation, and its advertising and informa - 
tory purpose did not make it otherwise. . . .  It is 
immaterial that its tactics were few and simple. It is 
enough that it proceeded in ordered and close file as 
a collective body of persons on the city streets’.”



59 —

Cox v. New Hampshire, supra, representing for over 
twenty-five years the law in this field, should have been 
sufficient notice to petitioner that his conduct was pro­
scribed. However, in this instance there was direct evi­
dence that petitioner was on notice and knewr his conduct 
was in violation of Section 1159. Mr. Justice Stewart, in 
Walker v. City of Birmingham, 388 U. S. 307, 310, 87 S. 
Ct. 1824, makes this clear when he discussed a press re­
lease issued by four of the petitioners in Walker, includ­
ing, we interpolate, Rev. F. L. Shuttlesworth, in which 
they announced their decision to march in spite of an 
injunction forbidding parading without a permit as re­
quired by this ordinance (388 U. S., at page 310).

“ That night a meeting took place at which one of 
petitioners announced that ‘ induction or no injunction 
we are going to march tomorrow’. The next after­
noon, Good Friday, a large crowd gathered in the 
vicinity of Sixteenth Street and Sixth Avenue North 
in Birmingham. A group of about 50 or 60 proceeded 
to parade along the sidewalk while a crowd of 1,000 
to 1,500 onlookers stood by ‘ clapping and hollering 
and (w)hooping’. Some of the crowd followed the 
marchers and spilled out into the street . . . ”

In fact, one of the chief issues involved in Walker was 
whether petitioners, including the Rev. F. L. Shuttles­
worth, violated an injunction restraining petitioners, in­
cluding Rev. Shuttlesworth, from participating in or en­
couraging mass street parades or processions without a 
permit as required by Section 1159, when they participated 
in the same parade for which petitioner was arrested in 
the instant case. This Court, in Walker, concluded that 
petitioners had violated the injunction by this march with­
out a permit, and upheld petitioner’s conviction for con­
tempt.

In addition to Cox v. New Hampshire, supra, respondent 
finds that the General City Code of Birmingham of 1944



60 —

also teaches petitioner that a march down the sidewalk 
is a march within the street. “ Sidewalk”  is defined in 
Section 2 of the General City Code of Birmingham of 1944: 

“ Sec. 2. Definitions and rules of construction.
In the construction of this code and of all ordi­

nances, the following definitions and rules shall he 
observed, unless the context clearly requires other­
wise. . . .

Sidewalk. The term ‘ sidewalk’ shall mean that 
portion of a street between the curb line and adja­
cent property line.”

III.
It Is Not Necessary That Section 1159, as Construed 

Provide for a Prompt Administrative Proceeding and 
Judicial Review If the Permit Required by Section 1159 
Is Denied. A “ Motion to Dissolve” the Injunction Pend­
ing at the Time of Petitioner’s Parade Without a Permit 
or “ Mandamus” to Compel the Issuance of Said Permit 
Are Adequate.

A.
Only Enactments That Censor the Content of Speech Must 

Provide for Both a Prompt Administrative 
Proceeding and Judicial Review.

Petitioner argues that Section 1159, as construed by 
the Alabama Supreme Court, is unconstitutional because 
it does not contain procedural safeguards designed to 
obivate the dangers of a censorship system. He contends 
that the porcedural safeguards to be adequate must pro­
vide for both a prompt administrative proceeding and 
a prompt judicial review if such permit is denied. In 
support of this argument, petitioner relies upon Freed­
man v. Maryland, 380 U. S. 51, 85 S. Ct. 734; Teitel Film 
Corp. v. Cusack, 390 U. S. 139, 88 S. Ct. 754; and Bantam 
Books, Inc. v. Sullivan, 372 U. S. 58, 83 S. Ct. 631.



61

The rule announced in Freedman, Teitel and Bantam
applies only to censorship and not to enactments regu­
lating the use of the streets. Insofar as we can determine 
from exhaustive research, this rule has only had appli­
cation when the content of speech, i. e., the content of 
books and movies, is subjected to censorship prior to 
its dissemination or showing. This rule obtains where 
the vice of a statute is that it delegates “ excessive dis­
cretion”  upon a censorship board. In Freedman v. Mary­
land, 380 U. S., at pages 56 and 57, Mr. Justice Brennan 
speaking for the Court said:

“ Although we have no occasion to decide whether 
the vice of overbroadness infects the Maryland stat­
ute, we think that appellant’s assertion of a similar 
danger in the Maryland apparatus of censorship— 
one always fraught with danger and viewed with 
suspicion— gives him standing to make that challenge. 
In substance his argument is that, because the ap­
paratus operates in a statutory context in which 
judicial review may be too little and too late, the 
Maryland statute lacks sufficient safeguards for con­
fining the censor’s action to judicially determined 
constitutional limits, and therefore contains the same 
vice as a statute delegating excessive administrative 
discretion”  (Emphasis added).

Respondent does not disagree with the above conclusion 
that the vice of statutory delegation of excessive ad­
ministrative discretion and the vice of censorship without 
prompt administrative and judicial review are similar. 
Respondent does argue, however, that Section 1159 is 
not infected with either vice. The Supreme Court of 
Alabama in the instant ease correctly pointed out at 206 
So. 2d, page 350, that under the provisions of Section 
1159 “ [t]he members of the Commission may not act 
as censors of what is to be said or displayed in any 
parade” . It is thus clear that this enactment is not cen­



62

sorship. Nor is Section 159 infected with the vice of con­
ferring excessive administrative discretion upon the City 
Commission. The administrative discretion conferred upon 
the Commission was limited to the same extent as was 
the discretion to grant or deny parade permits conferred 
by the statute in Cox v. New Hampshire, 312 U. S. 569, 
61 S. Ct. 762, which this Court held did not confer ex­
cessive discretion. This point is dealt with in greater 
detail in Part I of Respondent’s brief. In contrast, this 
Court in Cox v. New Hampshire, 312 U. S. 569, supra, 
recognized that cases such as Lovell v. Griffin, 303 U. S. 
444; and Schneider v. New Jersey, 308 U. S. 147, involved 
enactments that did confer excessive discretion in free 
speech situations, and therefore were not relevant. In. 
neither cases such as Lovell v. Griffin, supra, and Schneider 
v. New Jersey, supra, wherein the enactments involved 
did confer excessive discretion to deny speech, nor in 
cases such as Cox v. New Hampshire, supra, and the in­
stant case, wherein the statutes did not confer excessive 
discretion in this regard, has this Honorable Court re­
quired that statutory provisions afford both a prompt 
administrative and judicial review. These procedures are 
only required when the enactments involved purport to 
control or censor what may be said.

There can be no doubt that enactments, such as Section 
1159, focused on the safe and convenient use of the streets 
and sidewalks, deal with conduct that may or may not be 
intermingled with speech, and are not subject to the same 
restrictions as enactments that regulate pure speech. 
Amalgamated Food Employees, etc. v. Logan Valley 
Plaza, Inc., 88 S. Ct. 1601 (1968); Cox v. Louisiana, 379 
U. S. 536, 85 S. Ct. 453. Enactments such as Section 1159 
which regulate “ speech plus” have never been construed 
by this Court to require the same procedural safeguards 
as statutes which censor the content of pure speech. Cases 
such as Freedman v. Maryland, 380 U. S. 51, 85 S. Ct. 734;



Teitel Film Corp. v. Cusack, 390 IT. S. 139, 88 S. Ct. 754; 
and Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 83 S. Ct.
631, all involve enactments aimed at the censorship or 
control of the content of speech. Section 1159 is an enact­
ment designed to regulate parades on the streets, but 
when such parades manifest elements of speech, it is 
speech intermingled with conduct. However, the permit 
required cannot be used to censor what may be said or 
displayed in any parade. Shuttlesworth v. Birmingham, 
206 So. 2d, at page 350, makes it clear that “ the Commis­
sion may not act as censors of what is to be said or dis­
played in any parade” .

It is equally obvious that this Honorable Court con­
sidered the procedures we discuss herein to only have 
application to censorship systems. This is made clear in 
Freedman v. Maryland, 380 U. S., at pages 57, 58, 85 S. Ct., 
at page 738, when the Court observed that it was there 
dealing with a censorship system:

“ . . . The administration of a censorship system
for motion pictures presents peculiar dangers to con­
stitutionally protected speech. Unlike a prosecution 
for obscenity, a censorship proceeding puts the initial 
burden on the exhibitor or distributor. Because the 
censor’s business is to censor, there inheres the dan­
ger that he may well be less responsive than a court— 
part of an independent branch of government—to the 
constitutionally protected interest in free expression. 
And if it is made unduly onerous by reason of delay 
or otherwise to seek judicial review, the censor’s de­
termination may in practice be final.

“ [7-13] Applying the settled rule of our cases, we 
hold that a noncriminal process which requires the 
prior submission of a film to a censor avoids constitu­
tional infirmity only if it takes place under procedural 
safeguards designed to obviate the dangers of a cen­
sorship system.” (Emphasis supplied.)

— 63 —



64

The reasons behind the requirement that enactments 
creating censorship systems must provide both a prompt 
administrative proceeding and a prompt judicial review 
do not exist where a narrowly drawn enactment confers 
a properly limited administrative discretion on one 
charged with issuing a parade permit. The question of 
what can be said and what cannot be said is by its very 
nature a subject that should be judicially determined. 
The same considerations obviously do not enter into the 
issuance or denial of a permit to parade upon the streets. 
Only traffic conditions and safety and convenience of the 
public in the use of the streets, including sidewalks, are 
to be considered in determining whether to issue or deny 
the permit, and then if a denial is justified such justifica­
tion only exists until the conditions change and then the 
permit must issue. Censorship systems clearly call for a 
judicial review, but enactments such as 1159 call only for 
an adminstrative determination within very narrowly cir­
cumscribed limits. For convenience, we have set forth 
Section 1159 as originally written and as construed by 
the Alabama Supreme Court in the Appendix hereto, at 
pages 70 and 71, respectively.

B.

Mandamus and in This Case a Motion to Dissolve the In­
junction Provide Adequate Procedures for the Review 

of Denials of Permits Required by Section 1159.

Petitioner also argues that the procedures afforded by 
law to review the denial of his application for a parade 
permit are not adequate. Even in the absence of petition­
er’s pending action, i. e., the Ex parte injunction which 
permitted a ready review of any denial of a parade per­
mit by motion to dissolve such injunction, he had an 
adequate method of review. The case of Poulos v. New 
Hampshire, 345 U. S. 395, 73 S. Ct. 760, stands as posi­



tive authority that the normal procedures provided by 
state law are sufficient.

Petitioner in Poulos made application for a permit to 
hold a religious meeting in a public park as required by 
statute. His application was denied and he was subse­
quently convicted for holding such meeting without a per­
mit. The Supreme Court of New Hampshire determined 
that the permit had been arbitrarily and unlawfully de­
nied, but nevertheless upheld petitioner’s conviction be­
cause petitioner chose to violate a proper and narrowly 
construed enactment rather than pursue his legal remedy 
to compel issuance of the license. This Court upheld pe­
titioner’s conviction and agreed that his only lawful re­
course was to compel the issuance of this license. In this 
regard, this Honorable Court, at 345 U. S., pages 408, 409, 
73 S. Ct., at pages 768, 769, said:

“ Second. New Hampshire’s determination that the 
ordinance is valid and that the Council could be com­
pelled to issue the requested license on demand brings 
us face to face with another constitutional problem. 
May this man be convicted for holding a religious 
meeting without a license when the permit required 
by a valid enactment—the ordinance in this case— 
has been wrongly refused by the municipality?

“ Appellant’s contention is that since the Constitu­
tion guarantees the free exercise of religion, the Coun­
cil’s unlawful refusal to issue the license is a complete 
defense to this prosecution. His argument asserts 
that if he can be punished for violation of the valid 
ordinance because he exercised his right of free 
speech, after the wrongful refusal of the license, the 
protection of the Constitution is illusory. He objects 
that by the Council’s refusal of a license, his right 
to preach may be postponed until a case, possibly 
after years, reaches this Court for final adjudication 
of constitutional rights. Poulos takes the position

— 65 —•



— 66 —

that he may risk speaking without a license and de­
feat prosecution by showing the license was arbitrarily 
withheld.

“  [8-10] It must be admitted that judicial correction 
of arbitrary refusal by administrators to perform 
official duties under valid laws is exulcerating and 
costly. But to allow applicants to proceed without 
the required permits to run businesses, erect struc­
tures, purchase firearms, transport or store explosives 
or inflammatory products, hold public meetings with­
out prior safety arrangements or take other unauthor­
ized action is apt to cause breaches of the peace or 
create public dangers. The valid requirements of li­
cense are for the good of the applicants and the pub­
lic. It would be unreal to say that such official fail­
ures to act in accordance with state law, redressable 
by state judicial procedures, are state acts violative 
of the Federal Constitution. Delay is unfortunate but 
the expense and annoyance of litigation is a price 
citizens must pay for life in an orderly society where 
the rights of the First Amendment have a real and 
abiding meaning. Nor can we say that a state’s re­
quirement that redress must be sought through appro­
priate judicial procedure violates due process.”

Respondent can find nothing in either petitioner’s brief 
or the cases cited therein that even tends to be per­
suasive that Section 1159 is not facially valid. In fact, 
Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 762; Cox 
v. Louisiana, 379 U. S. 536, 85 S. Ct. 453; and Walker v. 
City of Birmingham, 388 IT. S. 307, 87 S. Ct. 1824, all dis­
cussed in relation to this issue in Part I of this brief, 
conclusively establish the facial validity of Section 1159. 
It necessarily follows that petitioner’s argument that the 
lawful procedures to compel issuance of the permit were 
inadequate is without merit. In this regard, it should be 
noted that petitioner here did not even make application



—  67 —

for a parade permit, Walker v. City of Birmingham, 388
U. S. 307, 87 S. Ct. 1824, whereas in Poulos v. New Hamp­
shire, 345 U. S. 395, 73 S. Ct. 760, petitioner applied for 
such permit and the Council unlawfully denied such per­
mit. This indeed would be a valid basis for distinction 
even if petitioner in Poulos had succeeded under his theory 
that the unlawful refusal to issue the permit justified his 
defiant violation of the ordinance. In the absence of facts 
showing the petitioner here made application for a permit, 
the presumption is that the Commission would have 
granted the permits. The rule in this regard has been 
stated in Black v. Wilson, 281 Ala. 6, 198 So. 2d 286:

“ A  reversal of the judgment of the trial court 
would have the effect of bringing about a court order 
commanding the respondents below to do that which 
the Legislature has said they should do. The pre­
sumption prevails that public officials charged with 
a duty will perform that duty.”

Petitioner in the instant case had not only a court but 
a pending case in which to contest the validity of Section 
1159. On Good Friday, April 12, 1963, when petitioner 
elected to violate Section 1159 by participating in a mass 
parade without the required permit, he was acting in de­
fiance of an injunction that enjoined him from mass parad­
ing without said permit. The State Court and the injunc­
tion suit were available to petitioner had he chosen to 
contest the validity of Section 1159 by filing a motion to 
modify or dissolve the injunction. This point was not over­
looked by this Honorable Court when it considered this 
petitioner’s contempt conviction for violating that injunc­
tion in the case of Walker v. City of Birmingham, 388 
U. S. 307, pages 318, 319, 87 S. Ct. 124, at page 1831:

“ This ease would arise in quite a different consti­
tutional posture if the petitioners, before disobeying 
the injunction, had challenged it in the Alabama 
courts, and had been met with delay or frustration



68

of their constitutional claims. But there is no show­
ing that such would have been the fate of a timely 
motion to modify or dissolve the injunction. There 
was an interim of two days between the issuance of 
the injunction and the Good Friday march. The peti­
tioners give absolutely no explanation of why they 
did not make some application to the state court 
during that period. The injunction had issued 
ex  p a r te ; if the court had been presented with the 
petitioner’s contentions, it might well have dissolved 
or at least modified its order in some respects. If it 
had not done so, Alabama procedure would have pro­
vided for an expedited process of appellate review. 
It cannot be presumed that the Alabama Courts would 
have ignored the petitioners’ constitutional claims”  
(Emphasis supplied).

The expedited process of appellate review referred to 
above is Alabama Supreme Court Rule 47, Title 7, Ap­
pendix, Code of Alabama 1940, Recompiled 1958. Rule 47 
reads:

“ In all 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 de­
crees rendered in habeas corpus, injunction, certiorari, 
supersedeas, quo warranto, mandamus, prohibition, and 
appointing or refusing to appoint a receiver proceed­
ing, 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 submission of the 
appeal. Adversary counsel shall be given three days’ 
notice of the date and time of the proposed presenta­
tion of the petition to the court. Upon presentation 
of the petition, the court may prescribe time limita­



69 —

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 in­
volves a question of great public interest affecting the 
public good and requires 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 accessible 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 
uncertainty as to his remedy, seeks relief by man­
damus as an alternative to his appeal, nor to appeals 
in cases where the injunctive relief involved was 
merely incidental to other relief sought.”

Even if we presume petitioner had applied for the 
parade permit, as required by Section 1159, and been 
refused, a presumption that we do not think is valid, 
Black v. Wilson, 281 Ala. 6, 198 So. 2d 286, and had then 
sought to compel its issuance by “ mandamus” , Rule 47 
provides the same expedited process for appellate review 
as in cases involving injunctions. Its provisions apply to 
“ mandamus”  proceedings as well as to injunctions.

There can be no doubt that the Alabama Courts are on 
notice that a petitioner’s action, whether a ‘ ‘ motion to 
dissolve”  an injunction or “ mandamus”  to compel is­
suance of a permit, as required by Section 1159, must be 
handled expeditiously. This is the obvious import of this 
Honorable Court’s statement9 in Walker v. City of Birm­
ingham, 388 U. S. 307, at pages 318, 319, that:

9 The Supreme Court of Alabama approved this statement in 
relying upon Walker in its Shuttlesworth opinion and decision. 
Therefore, the circuit courts of Alabama are put on notice of 
its requirements and their duty to comply therewith.



70

“ This case would arise in quite a different consti­
tutional posture if the petitioners, before disobeying1 
the injunction, had challenged it in the Alabama 
courts, and had been met with delay or frustrations of 
their constitutional claims.”

Alabama Circuit Courts will comply with this mandate 
but should a Circuit Court in Alabama fail in this regard, 
then certainly expeditious relief can be had through the 
Alabama Supreme Court by calling its supervisory powers 
over circuit courts into action. These supervisory powers 
are conferred upon it in the Alabama Constitution of 1901, 
Article 6, Section 140:

“ Sec. 140. Except in cases otherwise directed in 
this Constitution, the supreme court shall have appel­
late jurisdiction only, which shall be coextensive with 
the state, under such restrictions and regulations, not 
repugnant to this Constitution, as may from time to 
time be prescribed by law, except where jurisdiction 
over appeals is vested in some inferior court, and made 
final therein; provided, that the supreme court shall 
have power to issue writs of injunction, habeas corpus, 
quo warranto, and such other remedial and original 
writs as may be necessary to give it a general super­
intendence and control of inferior jurisdictions.” (Em­
phasis supplied.)



— 71 —

CONCLUSION.

It is respectfully requested that the judgment of the 
Alabama Supreme Court be affirmed.

J. M. BRECKENRIDGE,

EARL McBEE,

WILLIAM C. WALKER,
600 City Hall,

Birmingham, Alabama, 
Attorneys for Respondent.



APPENDIX.





— 73

APPENDIX.

“ Sec. 1159. Parading.
It shall be unlawful to organize or hold, or to assist 

in organizing or holding, or to take part or participate 
in, any parade or procession or other public demon­
stration on the streets or other public ways of the city, 
unless a permit therefor has been secured from the 
commission.

To secure such permit, written application shall be 
made to the commission, setting forth the probable 
number of persons, vehicles and animals which will be 
engaged in such parade, procession or other public 
demonstration, the purpose for which it is to be held 
or had, and the streets or other public ways over, along 
or in which it is desired to have or hold such paarde, 
procession or other public demonstration. The com­
mission shall grant a written permit for such paarde, 
procession or other public demonstration, prescribing 
the streets or other public ways which may be used 
therefor, unless in its judgment the public welfare, 
peace, safety, health, decency, good order, morals or 
convenience require that it be refused. It shall be un­
lawful to use for such purposes any other streets or 
public ways than those set out in said permit.

The two preceding paragraphs, however, shall not 
apply to funeral procession.”

Section 1159 as construed by the Alabama Supreme 
Court in 206 So. 2d 348, 281 Ala. 542 in Shuttlesworth v. 
City of Birmingham.

The Commission in issuing parade permits under the 
provisions of Section 1159:



74

1. May not censor what is to be said or displayed.

2. Must be guided only by safety, comfort and con­
venience of persons using the streets, sidewalks and other 
public ways.

3. A  denial would be warranted only if after investiga­
tion, it is found that the convenience of the public in the 
use of the streets at the time and place set out in the ap­
plication would be unduly disturbed.

4. May be applied only when a formal procession or 
march occurs.

5. A permit may not be refused solely on the ground 
that a parade, procession or other public demonstration 
might tend to provoke disorderly conduct.

6. Its discretion must be exercised with uniformity of 
method of treatment upon the facts of each application, 
free from improper or inappropriate considerations and 
from unfair discrimination. A systematic, consistent and 
just order of treatment with reference to the convenience 
of public use of the streets and sidewalks must be fol­
lowed.

I f  they should act arbitrarily, resort may be had to the 
courts. 206 So. 2d 350-352.