Hamer v. Musselwhite Brief for Appellants
Public Court Documents
August 5, 1966

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Brief Collection, LDF Court Filings. Hamer v. Musselwhite Brief for Appellants, 1966. d3b92b34-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2afefe77-6293-4e21-a453-ff94056cd23b/hamer-v-musselwhite-brief-for-appellants. Accessed July 30, 2025.
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In the Wnxtih Bmttz tour! nf Appeals F or the F ifth Circuit No. 23,474 D on H amer, et al., Appellants, George Mussel white, Individually and as Chief of Police of the City of Lexington, Mississippi, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI BRIEF FOR APPELLANTS Carsie A . H all H enry M. A ronson 538% North Farish Street Jackson, Mississippi 39202 J ack Greenberg J ames M. N abrit, ITT Melvyn Zarr 10 Columbus Circle New York, New York 10019 A nthony G. A msterdam 3400 Chestnut Street Philadelphia, Pennsylvania 19104 Attorneys for Appellants I N D E X Statement of the Case...................................................... 1 Specifications of Error ...................................... ........... 12 A rgument PAGE The Present Lexington Ordinance Prohibiting All Parades on Lexington’s Arterial Streets and Court Square Is Offensive to the First and Fourteenth Amendments to the Constitution of the United States Because A. The Ordinance Is Enforced in the Unfettered Discretion of City Officials .......................... 13 B. The Ordinance Is a Vague and Overbroad Regulation of Expression ............................ 19 C. The Ordinance Abridges Appellants’ Con stitutional Guarantees of Free Speech, As sembly and Petition ....................................... 21 Conclusion...................................................................... 31 Table oe Cases Alabama ex rel. Gallion v. Rogers, 187 F. Supp. 848 (M. D. Ala. 1960), aff’d sub nom. Dinkens v. Attor ney General, 285 F. 2d 430 (5th Cir. 1961) cert, denied, Dinkens v. Rogers, 366 U. S. 913 (1961) .... 7 Anderson v. City of Albany, 321 F. 2d 649 (5th Cir. 1963) ............................................................................. 18 11 Baggett v. Bullitt, 377 IT. S. 360 (1964) ..................... 18 Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .... 20 Board of Education v. Barnette, 319 U. S. 624 (1943) 26 Bridges v. California, 314 U. S. 252 (1941) ................. 26 Cantwell v. Connecticut, 310 IT. S. 296 (1940) .......... 14,24 Carlson v. California, 310 IT. S. 106 (1940) ................. 24 Communications Ass’n v. Douds, 339 IT. S. 383 (1950) 24 Cottonreader v. Johnson, 252 F. Supp. 492 (M. D. Ala. 1966) ........................................................................... 30 Cox v. Louisiana, 379 IT. S. 536 (1965) .....................16,28 Cox v. Louisiana, 379 IT. S. 559 (1965) ......................... 18 Cox v. New Hampshire, 312 IT. S. 569 (1941) .............. 28 DeJonge v. Oregon, 299 IT. S. 353 (1937) ................. 24 Dombrowski v. Pfister, 380 IT. S. 479 (1965) .......... 18,20 Edwards v. South Carolina, 372 IT. S. 229 (1963) .... 26 Farmer v. Moses, 232 F. Supp. 154 (S. D. N. T. 1964) 29 Gluyot v. Pierce, 5th Cir., No. 22,990 ....................... 10,19 Hague v. C. I. O., 307 IT. S. 496 (1939) ..................... 21 Hurwitt v. City of Oakland, 247 F. Supp. 995 (N. D. Calif. 1965) ................................................................ 28 Jones v. Opelika, 316 IT. S. 584 (1942), dissent adopted on rehearing, per curiam, 319 U. S. 103 (1943) ...... 22 Katzenbach v. McClellan, 341 F. 2d 922 (5th Cir. 1965) 7 Kelly y . Page, 335 F. 2d 114 (5th Cir. 1964) .............. 27 Kennedy v. Owen, 321 F. 2d 116 (5th Cir. 1963) .......... 7 PAGE Kovaes v. Cooper, 336 U. S. 77 (1949) ................. 22, 28, 29 Kunz v. New York, 340 U. S. 290 (1951) ........... 14,16, 22, 28 Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U. S. 293 (1961) .................................................................... 30 Lovell v. Griffin, 303 U. S. 444 (1938) ....................... 14,24 Marsh v. Alabama, 310 U. S. 501 (1946) ........................ 25 Martin v. City of Strutbers, 319 U. S. 141 (1943) ...... 22 Murdock v. Pennsylvania, 319 U. S. 105 (1943) ..... 22 N.A.A.C.P. v. Button, 371 U. S. 415 (1963) ...... 20, 26, 30 N.A.A.C.P. v. Thompson, 357 F. 2d 831 (5th Cir. 1966) ..........................................................................19,26 Near v. Minnesota, 283 U. S. 697 (1931) ..................... 24 Niemotko v. Maryland, 340 U. S. 268 (1951) ................16, 28 Saia v. New York, 334 II. S. 558 (1948) .................21, 30 Schneider v. State, 308 U. S. 147 (1939) .... 14,21,26 Shelton v. Tucker, 364 U. S. 479 (1960) .................... 30 Speiser v. Randall, 357 U. S. 513 (1958) .....................24, 25 Terminiello v. Chicago, 337 II. S. 1 (1949) ........ ......... 24 Thomas v. Collins, 323 IT. S. 516 (1945) ................ ......... 26 Thornhill v. Alabama, 310 U. S. 88 (1940) ...... 20, 22, 26, 30 Whitney v. California, 274 IT. S. 357 (1927) ..............26, 29 Williams v. Wallace, 240 F. Supp. 100 (M. D. Ala. 1965) 19 Ordinances Lexington, Mississippi, Ordinance to Prohibit Parades on Yazoo Street, Depot Street, Carrollton Street and Court Square, June 1, 1965 .......... 2, 3, 8-15,18-23, 27, 31 IV Lexington, Mississippi, Ordinance to Regulate Parades on Yazoo Street, Depot Street, Carrollton Street and Court Square, October 3, 1961..............2, 3, 8-10,13-15,18 Lexington, Mississippi, Ordinance to Prohibit Parades on Yazoo Street, Depot Street, Carrollton Street and Court Square, May 3, 1955 ......................................... 8, 9 Other A uthorities V. S. Commission on Civil Rights, Voting in Missis sippi (1965) ....-......................................................... 7 30 Federal Register No. 211 (1965) ..............................8 18 PAGE I n the ituiti'ii (£mtrt of Appeals F oe the F ifth Cikcuit No. 23,474 D on H amer, et al., -v.- Appellants, George Musselwhite, Individually and as Chief of Police of the City of Lexington, Mississippi, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI BRIEF FOR APPELLANTS Statement o f the Case This appeal challenges the constitutionality of an ordi nance of the City of Lexington, Mississippi, prohibiting all parades on Yazoo Street, Depot Street, Carrollton Street and Court Square in that city. Appellants contend that the ordinance is enforced in such a manner as to license federally guaranteed rights of free expression at the un fettered discretion of city authorities; that the ordinance is a vague and overbroad regulation of expression; and that, in any event, the First and Fourteenth Amendments are violated by a blanket ban of all demonstration activi ties in the only areas of a small town where demonstrations can effectively convey ideas and grievances. 2 Appellants, plaintiffs below, filed their complaint for de claratory and injunctive relief on May 26, 1965 (E. 1-7). They alleged that they were Negro residents of the City of Lexington and persons residing in Lexington and Holmes County (of which Lexington is the county seat) who de sired “to exercise their federally protected rights of free expression by conducting in the City of Lexington, Missis sippi, peaceful parades, assemblies and demonstrations to encourage Negro citizens of Lexington and Holmes County, Mississippi to register to vote in local, state and national elections, and to protest the racial discrimination which they believe is practiced by the voting registration officials of Holmes County, Mississippi” (E. 2-3). On behalf of themselves and their class, they sought a declaration of unconstitutionality of an ordinance of October 3,1961 [here after called the 1961 ordinance] which prohibited parades on Court Square and Yazoo, Carrollton and Depot Streets without written permission of the Mayor and Marshal of Lexington (E. 4-5). This ordinance is set out at E. 9-11. They also asked that appellees, city and county officials who were defendants below, be enjoined from enforcing that ordinance (E. 3-4, 7). Their complaint averred that the office of the county registrar where residents of Holmes County must register to vote is located in Court Square in the City of Lexington, and that Yazoo, Carrollton and Depot Streets intersect Court Square (E. 5). The case was set for hearing June 2, 1965 on appellants’ application for a preliminary injunction. On June 1, 1965 the Mayor and Board of Aldermen of the City of Lexing ton met, repealed the 1961 ordinance, and replaced it with the ordinance [hereafter called the 1965 ordinance] whose constitutionality is now in contention. That ordinance, set 3 out at R. 18-20, provides that “parades on Yazoo Street, Depot Street, Carrollton Street and Court Square in the City of Lexington, Mississippi, are hereby prohibited and are hereby ordained to be unlawful” (E. 18). Its constitu tionality was assailed by a supplemental complaint filed June 11, 1966, in which plaintiffs alleged that because “Yazoo Street, Depot Street, Carrollton Street and Court Square in the City of Lexington are the main thorough fares of the city and constitute that area in the city where the expression of views by peaceful parades, demonstra tions and assemblies are likely to come to the attention of the residents, public officials and voting registration au thorities of the city, the prohibition of parades on those thoroughfares is a constitutionally impermissible restric tion of the freedom of expression of the plaintiffs and the class which they represent” (R. 14). By their answer, appellees admitted their identity, the dates of passage and the texts of the 1961 and 1965 ordi nances, the location of the county registrar on Court Square, the intersection with Court Square of Yazoo, Car rollton and Depot Streets, and the correctness of a map of the City of Lexington annexed to the original complaint; they denied all other pertinent allegations of the original and supplemental complaints (R. 20-25). The case then came on for hearing before the Honorable Dan M. Bussell, and by testimony and exhibits of the parties the following relevant facts were adduced: Lexington, the county seat of Holmes County, abuts the Mississippi Delta and is 60 miles north of Jackson, Mis sissippi, and 160 miles south of Memphis, Tennessee (page 3 of the Comprehensive City Plan of Lexington, Mississippi, Exhibit D-2, hereafter referred to as CP). In 1960 its 4 population was 2839, including 1480 nonwliites and 1359 whites (E. 141; CP 27), a decline from 3198 in 1950 (E. 141; CP 19). Holmes County numbered 27,097 persons in 1960 (CP 19), including 7595 whites and 19,501 nonwhites (CP 27), 19 per cent below the 1950 census figure of 33,301 (CP 19). The center of Lexington is the county courthouse, sur rounded on its four sides by Court Square (E. 29). Traffic from several local streets and from the two state highways that pass through Lexington converges on the square (E. 29, 5; Exhibit B of the complaint; Exhibit P-8; CP 15). State Highway No. 17, which enters the city from the south as Yazoo Street, and State Highway No. 12 (connecting the area with U. S. Highways No. 49, 51 and Interstate 55 (CP 43)), which enters from the east as Depot Street, inter sect at the square and continue north as Carrollton Street until they separate .56 of a mile within the city limits (E. 29, 30, 61, 110, 126; Exhibit P-8). A comprehensive plan for future expansion of Lexington was completed April 29, 1965 by Michael Baker, Jr., Inc. of Jackson (E. 32, 100,108). Included in the plan is a traffic survey. The survey states that the principal problem is congestion caused by parking on arterial streets, narrow ness of streets and the conflict between local and through traffic (E. 32, 108-110, 131; CP 61-72). It is said to indi cate (although the printed comprehensive plan does not so state) that an average of 6000 cars come into Court Square daily (B, 31, 100) and it estimates (on the basis of national statistics) that 49 per cent of them are destined for points other than Lexington (CP 61). The survey does not include an hourly count that records the difference between peak-load and slack-time traffic (E. 5 132); nor does it differentiate between weekday and week end traffic. Hundreds of laborers from Tchula, Mississippi, and Lexington pass through Court Square going to and returning from plants in Durant, Mississippi, and Lexing ton (R. 141). They probably make weekday traffic in the early morning and late afternoon heavier than traffic dur ing the rest of the day or on weekends. There is no indi cation in the comprehensive plan that parades held from 1961 to 1965 (R. 32) contributed to traffic congestion in Lexington. In 1950 the Lexington Board of Aldermen, concerned about congestion, authorized a study which resulted in a one-way pattern around Court Square. Subsequently, some 60 parking spaces were eliminated from the downtown area (R. 31). Although Lexington in 1965 still had many more parking spaces in its business district than a city its size needs (CP 71), little else has been done to improve the parking problem or to make the city’s streets easier to travel. Lexington’s fire station and hospital are centrally located —the fire station two blocks north of Court Square on Tchula Street (R. 112-113), and the hospital at the western end of Spring Street (R. 84, 114; Exhibit P-8). But emer gency vehicles are limited in the streets they can use to answer calls in many parts of the city. Ambulances and fire engines answering calls in the eastern and northern sec tions of Lexington must use Depot and North Carrollton Streets respectively (R. 113, 114). Fire engines answering calls in the southern part of the city must use Yazoo Street (R. 113), as must ambulances returning from calls in that area (R. 114). Ambulances answering emergencies in the southern section use Spring Street (R. 114). Again, there 6 is no indication in the comprehensive plan or in the record that parking has been forbidden or limited on any major street the fire engines and ambulances must use. To the contrary, the photographic exhibits show Depot, North Car rollton, Yazoo and Spring Streets metered for parking and lined by parked cars (P-1 through P-4, P-6). Lexington’s Negro residential areas are Pecan Grove, south of Court Square (R. 56; “X” on Exhibit P-9); Bal ance Due, also south of Court Square but outside the city limits (R. 56, 113; “Y” on Exhibit P-9); Sehoolhouse Bot tom, east of Court Square (R. 56-57; “Z” on Exhibit P-9) ; and Church Street, north-northwest of Court Square (R. 57; “W” on Exhibit P-9). Yazoo Street is the only street that Negro demonstrators from Pecan Grove or Balance Due can use to reach the federal registrar’s office, the Post Office or Court Square, where the courthouse, county regis trar and Federal Bureau of Investigation are located (R. 5, 58-59, 93; Exhibit P-8). Marchers who want to reach Court Square from Church Street must use North Carroll ton Street (R. 59). Court Square is the center of county government and is the city’s commercial district (R. 31). It is the most suit able part of the city for parades and demonstrations (R. 60). Only five per cent of Lexington’s developed land is devoted to commercial use, and almost all of it is located on or near Court Square (R. 60, 86, 100, 115-116; CP 10). Lexington’s other commercial activity is on Yazoo Street and to a lesser degree on Depot and North Carrollton Streets (R. 60, 86; CP 10). Spring Street, on which some parading might be feasible (R. 60), is predominantly resi dential and has a very much smaller population than the streets covered by the ordinance (R. 83, 85, 92). 7 The Lexington comprehensive plan makes no mention of commercial activity in the city except on Court Square and the streets covered by the ordinance (CP 10), indicating that no other part of the city is suitable for parading. When the Lexington High School Band and Negro 4-H Club paraded in the city from 1961 to 1965, they always paraded around Court Square (E. 119, 121). Discrimination against Negroes is commonplace in Lex ington and Holmes County. There are separate educational facilities for Negroes from elementary school through junior college (E. 142; CP 78). And Holmes County is under a three-judge federal injunction to enforce a pro vision of the 1960 Civil Eights Act relating to preserva tion and inspection of election records. Katzenbach v. McClellan, 341 F. 2d 922 (5th Cir. 1965).1 In Holmes County, as of January 1, 1964, there were 4773 whites over age twenty-one, 4800 (or 100+ per cent) of whom were registered to vote. At the same time there were 8757 Negroes over age twenty-one, 20 (or .23 per cent) of whom were registered to vote.2 On October 29, 1965, United States Attorney General Nicholas deB. Katzenbaeh, in ac cordance with Section Six of the Voting Eights Act of 1965 (Public Law 89-110), certified that in his judgment the appointment of examiners was necessary to enforce the 1 See also Alabama ex rel. Gallion v. Rogers, 187 F. Supp. 848 (M. D. Ala. 1960), aff’d sub nom. Dinkens v. Attorney General, 285 F- 2d 430 (5th Cir. 1961), cert, denied, Dinkens v. Rogers, 366 U. S. 913 (1961); Kennedy v. Owen, 321 F. 2d 116 (5th Cir. 1963). 2 IT. S. Commission on Civil Rights, Voting in Mississippi 71 (Ap pendix C, 1965). 8 guarantees of the Fifteenth Amendment to the Constitution of the United States in Holmes County, Mississippi.3 There are three federal registrars in Holmes County (R. 51, 76), located at the Post Office in Lexington (R. 58; “V” on Exhibit P-9). The federal registrars were in Lexington for one week prior to the hearing in the district court in this case. During that week about 330 Negroes registered to vote (R. 76). Since 1955 the Mayor and Board of Aldermen of Lex ington have passed three parading ordinances. May 3, 1955 an ordinance was passed prohibiting all parades on Yazoo, Depot and Carrollton Streets and on Court Square (R. 32, 103-105).4 The 1955 ordinance was replaced October 3, 1961 by an ordinance that allowed parades on the three streets and the Court Square so long as they were approved by the Mayor and City Marshal (R. 10-11).5 On June 1, 1965—the day before appellants’ attack on the 1961 ordi nance was set for hearing—that ordinance was repealed and replaced by the present one (R. 18-20).6 J. William Moses, a defendant in this case (R. 1) and a member of the Board of Aldermen of Lexington for nine years prior to the hearing (R. 99), testified on the passage 3 30 Federal Register No. 211, at 13849 (1965). 4 Book 9, p. 290, Minutes of the Mayor and Board of Aldermen of the City of Lexington; Book 2, p. 164 of the Ordinances of the City of Lexington. 5 Book 10, p. 157, Minutes of the Mayor and Board of Aldermen of the City of Lexington; Book 2, p. 182 of the Ordinances of the City of Lexington. 6 Book 10, p. 440, Minutes of the Mayor and Board of Aldermen of the City of Lexington; Book 2, id. 242 of the Ordinances of the City of Lexington. 9 and repeal of the ordinances. The 1955 ordinance, Moses said, expressed the same concern about traffic congestion that was first felt by the Aldermen in 1950 when they cre ated a one-way traffic pattern around Court Square (R. 101-102). He said that pressure brought by citizens who wanted the new Lexington High School Band to parade in the downtown area led to replacement of the 1955 ordinance in 1961. After passage of the 1961 ordinance several parades were held, not only by the high school band, but also by the Holmes County Negro 4-H Club (R. 106, 119- 120) . Moses’ explanations for enactment of the 1965 ordinance were somewhat inconsistent. He stated that the 1961 ordi nance was repealed in 1965 and replaced by the present ordinance “mostly on the advice of our City Attorney” (R. 107) after the legality of the 1961 ordinance had been attacked (R. 122) by appellants (R. 1-7). Other than this litigation, there was no pressure to repeal the 1961 ordi nance, and prior to suit, no repeal measures had been proposed before the Board of Aldermen (R. 123-124). But Moses also appears to say that between 1961 and 1965 the Board of Aldermen discussed the 1961 ordinance and its effect on traffic,7 and that traffic congestion—not advice of counsel stemming from the lawsuit—was the primary cause for repealing that ordinance in 1965 and enacting the pres ent one (R. 117, 135, 137). The short of it seems to be that the 1961 ordinance was repealed on the advice of city counsel after appellants’ attack on it, if not because of that 7 Moses’ testimony is confused at this point, and it is likely that he is referring to the 1955 ordinance, not the 1961 ordinance, when he asserts that frequent Board discussion preceded repeal (R. 134- 135; compare R. 123-124). 10 attack, and that the present ordinance was enacted to fill the gap left by repeal (R. 121-124). Moses testified that in his opinion it is not now feasible to have parades along the thoroughfares where they are prohibited by the ordi nance (R. 139). There is nothing in the comprehensive plan, submitted while the 1961 ordinance permitting li censed parades was in effect, to support this position. Moses also gave his interpretation of the ordinance. He said that it did not apply to sidewalks (R. 33)8 or to shoulders of streets (R. 116, 139), although he did state that shoulders are technically part of the street (R. 128).9 In response to questions by his attorney, Moses not only reiterated that there was no intent by the Aldermen to prohibit parading on sidewalks or shoulders adjacent to streets included in the ordinance (R. 116-117, 139), but 8 But see the letter opinion of Judge Cox, August 20, 1965 in Guyot v. Pierce, S. D. Miss., Civil Action No. 3754 (J) appearing at pp. 79-89 of the Printed Record of Guyot v. Pierce, 5th Cir., No. 22,990, in which he sustained the application of a Jackson, Missis sippi, ordinance regulating certain conduct in the “streets” to side walk marches, on the ground that “a sidewalk is but a portion of the street itself” (at p. 86), citing Section 8137(d) of the Missis sippi Code (1942), and 40 Words and Phrases (permanent Ed.) 421-426. 9 On Carrollton Street there is a sidewalk from Court Square north to the point where State Highways 12 and 17 separate (R. 126; “D” on Exhibit P-9). From there to the city limits, there is no sidewalk (R. 127). On Yazoo Street there is a sidewalk from Court Square south to the railroad track (R. 127; “sidewalk ends” on Exhibit P-9). From the railroad track to the city limit—the north bank of Black Creek—there is an eight to ten foot shoulder adjacent to the paved street (R. 128). If shoulders are construed to be part of the street, Negroes are precluded from gathering in parade formation in Pecan Grove or Balance Due, Negro residential areas (R. 56), because there is only a shoulder on Yazoo Street there (Exhibit P-9). Instead, they would have to assemble away from their usual meeting places at a place where there is a side walk. 11 also said that if appellants want to parade “they have the cooperation and the help and support, and, also, the pro tection of the City of Lexington” (E. 139). But Moses affirmed that it was the intent of the ordinance to prevent the crossing of Court Square, a designated street, by marchers who want to parade at the courthouse within the square (R. 140). In Moses’ view, parading and assembly in front of the courthouse, as well as on the square surround ing it, is effectively prohibited. Moses was asked on cross-examination what constituted a parade. He said that “parade” connoted an organized group under some direction “marching along,” but he was unable to specify how large a group constituted a parade. He said that 500 civil rights workers would be a parade, but three people organized and marching down the street would not. He was uncertain about five people doing the same thing (E. 123-124). Subsequent to enactment of the present ordinance, about 500 Negro civil rights demonstrators paraded on Yazoo Street and in Court Square (R. 30-31). Every heavily populated Negro section of Lexington was represented (R. 77). The march originated at the Freedom Democat[ic Party] Office (R. 87) in Pecan Grove (R. 30-31, 82). The demonstrators marched north along Yazoo Street, on the shoulder of the road or on the sidewalk where there was a sidewalk (R. 82-83), two abreast, in a column about four blocks long (R. 30-31, 78, 88, 116). They crossed Court Square and, on the lawn, encircled the courthouse (R. 30- 31, 77-78, 88). During the parade, which lasted four hours (R. 77), the marchers sang, prayed (R. 30-31, 79) and carried placards 12 saying “We support the Freedom Democratic Party Con gressional Challenge” (R. 80). No handbills were distrib uted and there were no speeches (R. 79). After the parade the marchers again crossed Court Square and walked down Yazoo Street to Pecan Grove where the group disbanded (R. 30-31, 89). The Lexington officials were told of the parade before it took place (R. 33, 140). The officials met with the police department prior to the march and instructed them to give every assistance to the paraders (R. 140). There was “no intention from the very beginning to arrest anybody” (R. 141). One policeman directed pedestrian and vehicular traffic at the square while others, perhaps auxiliary police, observed spectators and activities on the courthouse lawn (R. 31, 33, 89-90, 115, 140). During the parade no civil rights demonstrators were arrested, threatened or harassed by city officials, police or spectators (R. 31, 96). Several Negroes feared, however, that they would be arrested because the ordinance pro hibited parading on Yazoo Street and Court Square, and some did not participate in the march who would have done so if there were no ordinance (R. 90, 91, 96-97). Specifications o f Error 1. The court below erred in refusing to declare the pres ent Lexington ordinance prohibiting all parades on Lex ington’s arterial streets and Court Square offensive to the First and Fourteenth Amendments as a device for the licensing of constitutionally protected expression in the unfettered discretion of the Lexington Board of Aldermen, police and other city officials. 13 2. The court below erred in refusing to declare the present Lexington ordinance prohibiting all parades on Lexington’s arterial streets and Court Square unconsti tutional as a vague and overbroad regulation of expression. 3. The court below erred in refusing to declare the pres ent Lexington ordinance prohibiting all parades on Lexing ton’s arterial streets and Court Square an unconstitutional abridgment of appellants’ First and Fourteenth Amend ment guarantees of free speech, assembly and petition. A R G U M E N T The Present Lexington Ordinance Prohibiting All Parades on Lexington’s Arterial Streets and Court Square Is Offensive to the First and Fourteenth Amendments to the Constitution o f the United States Because A. T he O rdinance Is E nforced in the U nfettered D iscretion o f City Officials. The 1961 Lexington ordinance allowed parades on Yazoo, Depot and Carrollton Streets and Court Square so long as they were approved by the Mayor and City Marshal. That ordinance was attacked by appellants in a complaint tiled May 26, 1965. It is clear that the 1961 ordinance was un constitutional under principles settled since 1939. As Judge Russell said of it below: [PJlaintiffs contend that it [the 1961 ordinance] was unconstitutional in that it placed the power to issue parade permits in the discretion of two delegated city officials. The invalidity of ordinances requiring per mits of this type has been upheld by the Supreme Court 14 in such cases as Lovell v. Griffin, 303 U. S. 444 [1938]; Schneider v. State, 308 U. S. 147 [1939]; Cantwell v. Connecticut, 310 U. S. 296, 305 [1940]; and Runs v. New York, 340 U. S. 290 [1951]. Defendants concede . . . that it was discriminatory; hence its repeal (E. 33-34). June 1, 1965, the day before hearing on appellants’ motion for preliminary injunction of the 1961 ordinance, that ordinance was repealed and replaced by the present one (R. 18-20). But the change from the overtly discre tionary 1961 ordinance to the 1965 ordinance was only a paper change. Ostensibly, the present ordinance invests no discretion in city officials. It bans all parades in the downtown area. Never was the appearance of reformation bought so cheaply. For in its application the new ordinance still permits the same unfettered discretion and potential for discrimination on the part of city officials which marred the old. This fact is plainly established by the record. Shortly after the 1965 ordinance was passed, and while the present case was pending for trial in the district court, more than 500 Negroes demonstrated in the forbidden streets of Lexington (R. 30-31, 76-80, 87-90, 115-116, 140-141). Their parade, lasting four hours (R. 77), originated at the Free dom Democrat[ic Party] Office (R. 87) in Pecan Grove, a Negro residential section of Lexington (R. 30-31, 82). Marching two abreast, in a column about four blocks long, the demonstrators walked north on Yazoo Street to Court Square, where they crossed the intersection and encircled the Courthouse on the lawn, singing, praying and carrying placards (R. 30-31, 77-78, 79, 80, 88). 15 The Lexington city officials had been told of the parade well before its occurrence. They met with the police depart ment prior to the parade and decided that they would let this one take place. Police were instructed in advance to render the marchers “every assistance that they wanted” (R. 140), “all the assistance in the world that they needed to expedite the crossing of these people across the street as much as possible” {ibid.). When the parade came, one policeman directed pedestrian and vehicular traffic at Court Square, others observed spectators and activities on the courthouse lawn (R. 31, 33, 89-90, 115, 140). During the parade no civil rights demonstrators were arrested. As Moses put it: “No person was arrested and no intention from the very beginning to arrest anybody” (R. 141). This deliberate decision, made before the parade, at a time when the record does not suggest that city officials knew whether the marchers would use the sidewalk or the roadstead of Yazoo Street, or ring Court Square on the outside or the inside, clearly demonstrates the City’s con ception of the new ordinance. It is. to be enforced or not as officials think appropriate. A blanket ban in form, it is a licensing provision in fact. Tactical considerations and whatever arbitrary or discriminatory urges city officials may feel it safe to exercise determine the enforcement of this post litem motam law. The uncontrolled discretion expressly given by the 1961 ordinance has been perpetu ated, with the sole difference that it rests now not in the hands of two designated officers, but in the hands of an unascertainable clique of officials and policemen. This is constitutionally impermissible. “Although this Court has recognized that a statute may be enacted which 16 prevents serious interference with normal nse of streets and parks . . ., 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 public places.” Kuns v. New York, 340 U. S. 290, 293-294 (1951). It matters not whether that discretion be given on the face of the statute books or by practice and usage. Niemotko v. Maryland, 340 U. S. 268 (1951). The covert preservation of licensing or dispensing power by the city officials of Lexington—a power governed by no set standards or regulations—places this case squarely under the ban of Cox v. Louisiana, 379 U. S. 536 (1965). In Cox, civil rights demonstrators were arrested and convicted under a statute which, like the present Lex ington ordinance, contained no language of discretion: No person shall wilfully obstruct the free, convenient and normal use of any public sidewalk, street, high way, bridge, alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, watercraft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein . . . (379 U. S. at 553). In holding the statute unconstitutional as applied, the Court said: We have no occasion in this case to consider the con stitutionality of the uniform, consistent, and nondis- criminatory application of a statute forbidding all access to streets and other public facilities for parades and meetings. Although the statute here involved on its face precludes all street assemblies and parades, it has not been so applied and enforced by the Baton 17 Bouge authorities. City officials who testified for the State clearly indicated that certain meetings and parades are permitted in Baton Bouge, even though they have the effect of obstructing traffic, provided prior approval is obtained. This was confirmed in oral argument before this Court by counsel for the State. He stated that parades and meetings are permitted, based on “arrangements . . . made with officials.” The statute itself provides no standards for the determina tion of local officials as to which assemblies to permit or which to prohibit. Nor are there any administrative regulations on this subject which have been called to our attention. From all the evidence before us it ap pears that the authorities in Baton Bouge permit or prohibit parades or street meetings in their completely uncontrolled discretion. The situation is thus the same as if the statute itself expressly provided that there only could be peaceful parades or demonstrations in the unbridled discretion of the local officials. The pervasive restraint on free dom of discussion by the practice of the authorities under the statute is not any less effective than a stat ute expressly permitting such selective enforcement . . . Also inherent in such a system allowing parades or meetings only with prior permission of an official is the obvious danger to the right of a person or group not to be denied equal protection of the laws . . . It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimi nation among persons or groups either by use of a statute providing a system of broad discretionary li censing power or, as in this case, the equivalent of such 18 a system by selective enforcement of an extremely broad prohibitory statute (379 U. S. at 555-558). It is true that in the present case, the discretionary char acter of the 1965 ordinance was exemplified by a dispensa tion in favor of civil rights groups. This has no legal signif icance. Cf. Cox v. Louisiana, 379 U. S. 559, 568-573 (1965). A licensing scheme is not rendered constitutional whenever the licensor chooses temporarily to be benign. Non-enforce ment of the ordinance against civil rights demonstrators on one day—during the pendency of a lawsuit brought by them to challenge it—does not guarantee non-enforcement against them on another. Rather, so long as the ordinance is ap plied in the selective manner which Lexington officials have adopted, the fear that it will be applied diseriminatorily against the appellants is substantial. Negroes are still politically disadvantaged in Lexington. Federal registrars have had to be sent to Holmes County to enforce the guar antees of the Fifteenth Amendment to the Constitution.10 Although the repeal of the 1961 ordinance and allowance of a parade after appellants went to court may have marked a tactical retreat for a time, there is every reason to believe that the new ordinance leaves appellants in the same jeop ardy of discrimination which they sued to escape. Clearly they are entitled to an injunction.11 10 30 Federal Register No. 211, at 13849 (1965). 11 In the court below, appellees interposed a number of objections to reaching the constitutional merits of the controversy. They con tended that the proceeding was not a proper class action, and re quested abstention in favor of the Mississippi state courts (R. 21). Judge Russell, however, passed over these points and decided the case squarely on the constitutional ground. Ample authority sus tains his power, indeed, his obligation, to do so. Baggett v. Bullitt, 377 U. S. 360 (1964) ; DombrowsM v. Pfister, 380 U. S. 479 (1965) ; Anderson v. City of Albany, 321 F. 2d 649 (5th Cir. 1963) ; 19 B . The O rdinance Is a Vague and Overbroad R egulation o f E xpression. The 1965 ordinance challenged here provides that “parades on Yazoo Street, Depot Street, and Carrollton Street and Court Square in the City of Lexington, Missis sippi, are hereby prohibited and are hereby ordained to be unlawful” (E. 18). But the ordinance neither defines nor indicates what constitutes the “street” and what quali fies as a “parade.” Instead, the citizen can only guess what behavior will result in his arrest under the ordinance. J. William Moses, a member of the Board of Aldermen for nine years prior to the hearing (E. 99), gave his in terpretation of the ordinance to the court below. His testi mony indicates its uncertainties. Moses said that the ordinance does not apply to sidewalks (E. 33), or to shoulders of streets (E. 116, 139). His state ment that sidewalks are not part of the streets is hardly comforting in light of cognate developments in the city of Jackson, Mississippi, where hundreds of civil rights demonstrators marching on the sidewalks were arrested for purported violations of an ordinance regulating “Cer tain Uses of the Streets,” and United States District Judge Cox sustained this application of the ordinance on the ground that “a sidewalk is but a portion of the street itself.” Guyot v. Pierce, letter opinion of August 20, 1965.12 As for N.A.A.G.P. v. Thompson, 357 F. 2d 831 (5th Cir. 1966); Williams v. Wallace, 240 F. Supp. 100 (M. D. Ala. 1965). On this appeal, therefore, appellants believe that the only issue fairly presented is the constitutional validity of the Lexington ordinance on its face and as applied. 12 Civil Action No. 3754(J), appearing at p. 86 of the Printed Record of Guyot v. Pierce, 5th Cir., No. 22,990. 20 unpaved shoulders, which Moses himself conceded were technically part of the street (R. 128), coverage of these precludes Negroes from assembling in parade formation for a march to Court Square from their residential areas of Pecan Grove and Balance Due (R. 56), for Yazoo Street —the only route to Court Square (R. 58-59)—at these points has no sidewalk, only a shoulder (R. 127; Exhibit P-9). For Negroes in these sections, then, every march runs an unascertainable risk of prosecution. Moses was also uncertain about what constitutes a “parade.” He said that “parade” connoted an organized group under some direction “marching along,” but was un able to specify how large a group “marching along” con stituted a “parade” (R. 123-124). If traffic congestion is the city’s concern, surely some specification of the number of marchers which occasions that concern is not impracti cable. Standards of permissible statutory vagueness are strict in the area of free expression . . . Because First Amend ment freedoms need breathing space to survive, gov ernment may regulate only with narrow specificity (.N.A.A.C.P. v. Button, 371 U. S. 415, 432-433 (1963)). The threat of criminal prosecution of any citizen who guesses wrongly the boundaries of his constitutional free doms serves effectively to coerce the citizen to obey even lawless police orders and surrender through fear his con stitutional use of the streets. Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940); Bantam Boohs, Inc. v. Sullivan, 372 TJ. S. 58, 66-70 (1963); Dombrowski v. Pfister, 380 U. S. 479, 494 (1965). The one civil rights demonstration that did take place after enactment of the 1965 ordinance lost 21 strength because Negroes feared that they would be arrested (R. 90, 91, 96-97), even though the marchers paraded up to Court Square on the shoulders and later the sidewalks of Yazoo Street (R. 82-83). This ordinance is so vague that it prevents citizens from exercising their freedom of expression because of fear of arrest. It should be declared unconstitutional and void. C. T he O rdinance Abridges A ppellants’ C onstitutional G uarantees o f Free Speech, A ssem bly and Petition . Freedom of assembly clearly extends to the public streets, and parading in the streets has been approved by the courts. As Justice Roberts wrote in Hague v. C. I. 0., 307 U. S. 496, 515 (1939): Wherever the title of streets and parks may rest, they have immemorially been held in trust for use of the public and, time out of mind, have been used for pur poses of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. . . . This statement was approved by the majority of the Court in Saia v. New York, 334 U. S. 558, 561 (1948), and in Schneider v. State, 308 U. S. 147, 163 (1939), the Court saying: It is suggested that . . . ordinances are valid because their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places. But . . . the streets are natural and proper places for the dissemination of information 22 and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. See also Thornhill v. Alabama, 310 U. S. 88, 105-6 (1940); Jones v. Opelika, 316 II. S. 584, 615 (1942), dissent adopted on rehearing, per curiam, 319 U. S. 103 (1943); Kuna v. New York, 340 U. S. 290, 293 (1951). These decisions recognize that denial of access to the streets as a place of public communication may often amount to denying the large underprivileged portions of the population every effective means of political expression. ‘ Freedom of speech . . . [is] available to all, not merely to those who can pay their own way.” Murdock v. Penn sylvania, 319 U. S. 105, 111 (1943); cf. Martin v. City of Struthers, 319 U. S. 141, 146 (1943). Laws which hamper the free use of some instruments of communication thereby favor competing channels . . . There are many people who have ideas they wish to disseminate but who do not have enough money to own or control publishing plants, newspapers, radios, moving picture studios, or chains of show places . . . In no other way except public speaking can the desir able objective of widespread public discussion be as sured . . . the right to freedom of expression should be protected from absolute censorship for persons without, as for persons with, wealth and power. (Mr. Justice Frankfurter, concurring, in Kovacs v. Cooper, 336 U. S. 77, 102-4 (1949).) The present Lexington ordinance on its face imposes a total prohibition on all parades in the downtown area of 23 the city—the only suitable place in the city for parading and demonstrating (R. 60).13 The main thoroughfares of the city constitute that area where the expression of views is most likely to come to the attention of the residents, public officials and voting registration authorities of the city and county. The commercial and government center of Lexington is Court Square. The courthouse, county reg istrar and Federal Bureau of Investigation are located there (R. 5, 58-59, 93; Exhibit P-8), as is almost all of Lexington’s developed land devoted to commercial use (R. 60, 86, 100, 115-116; CP 10).14 And commercial activity not on the square is on Yazoo, Depot or North Carrollton Streets (R. 60, 86; CP 10). In addition to prohibiting parades on Yazoo Street, Depot Street, Carrollton Street and Court Square (R. 18), it was the intent of the 1965 ordinance, Moses testified, to pre vent a parade from crossing Court Square, thus precluding demonstrations on the courthouse lawn (R. 140). All of these prohibitions clearly violate appellants’ constitutional guarantees of freedom of speech and assembly. Freedom of speech and freedom of the press, -which are protected by the First Amendment from infringe ment by Congress, are among the fundamental personal rights and liberties which are protected by the Four 13 See Statement of the Case, pp. 4-7, supra. 14 Only five per cent of Lexington’s developed land is devoted to commercial use (CP 10) and there is no indication in the Compre hensive Plan that there is any commercial activity on streets not covered by the ordinance. 24 teenth Amendment from invasion by State action . . . It is also well settled that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the amendment. (Lovell v. Griffin, 303 U. S. 444, 450 (1938).) The right of peaceable assembly is a right cognate to those of free speech and is equally fundamental. . . . [Consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceful political action cannot be proscribed. (DeJonge v. Oregon, 299 U. S. 353, 364-5 (1937).) See also Terwimiello v. Chicago, 337 U. S. 1, 4 (1949); Speiser v. Randall, 357 U. S. 513, 521 (1958). Appellants recognize that the State has authority to enact laws to promote the health, safety, morals and general wel fare of its people. Near v. Minnesota, 283 U. S. 697, 707 (1931); Carlson v. California, 310 U. S. 106, 113 (1940). But this authority may not be used as a guise to deprive people of their constitutional rights of freedom of speech and assembly. We must recognize . . . that regulation of “conduct” has all too frequently been employed by public au thority as a cloak to hide censorship of unpopular ideas . . . (Commimications Ass’n v. Douds, 339 U. S. 383, 399 (1950)) . . . . [A] State may not unduly sup press free communications of views . . . under the guise of conserving desirable conditions. (Cantwell v. Connecticut, 310 U. S. 296, 308 (1940).) 25 The purported justification for the 1965 ordinance is that it will alleviate traffic congestion in the downtown area of the city (R. 18-20, 117, 135, 137). The traffic survey, com piled as part of a comprehensive plan for future expansion of Lexington, indicates that an average of 6000 vehicles pass through Court Square daily (R. 31, 32, 100, 108) and is said to show the need for the prohibition of parades. But the traffic survey does not even mention parades as a cause of congestion; nor is there any other evidence that the parades held in Lexington from 1961 to 1965 (R. 32) con tributed to the problem. Instead, parking on arterial streets, narrowness of streets and a conflict between local and through traffic were cited as the causes of congestion (R. 32, 108-110, 131; CP 61-72). We are told that the reason these problems are not confronted directly is that local merchants object to traffic regulation which might affect their commercial business (R. 110-112, 128-132, 137). To protect this commercial interest, the city of Lexington has subordinated federally guaranteed freedoms. No deci sion of the Supreme Court of the United States counte nances any such balance. See Marsh v. Alabama, 326 U. S. 501, 509 (1946). To the contrary, the Court has reiterated that nothing short of the most serious threats to the pub lic welfare justify abridgment of free speech and assembly. “ [Ojnly considerations of the greatest urgency can justify restrictions on speech. . . . ” Speiser v. Randall, 357 U. S. 513, 521 (1958). Fear of serious injury cannot alone justify suppression of free speech and assembly. . . . Only an emergency can justify repression . . . . Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the 26 evil apprehended is relatively serious. Prohibition of free speech and free assembly is a measure so strin gent that it would be inappropriate as the means for averting a relatively trivial harm to society. (Whitney v. California, 274 U. S. 357, 376-377 (1927), Justices Brandeis and Holmes concurring.) See also Schneider v. State, 308 U. S. 147, 162-163 (1939); Thornhill v. Alabama, 310 U. S. 88, 95-6 (1940); Bridges v. California, 314 U. S. 252, 262-3 (1941); Board of Educa tion v. Barnette, 319 U. S. 624, 639 (1943); Thomas v. Collins, 323 U. S. 516, 530 (1945); N.A.A.C.P. v. Button, 371 U. S. 415, 439 (1963). The mere slowing of vehicular traffic, especially in a city through which only 6000 cars pass on an average day (R. 31, 100), does not warrant blanket abridgment of free speech and assembly. In Edwards v. South Carolina, 372 U. S. 229 (1963), the Supreme Court held that a demon stration of 187 Negro students in protest of deprivation of civil rights could not be prohibited, notwithstanding the protest caused traffic to slow down at a nearby intersection. The Court said that such a prohibition would violate the demonstrators’ rights of free speech and assembly. The possible slowing of cars in Lexington caused by a parade is a precisely apt example of the “relatively trivial harm to society” spoken of by Justices Brandeis and Holmes in Whitney, supra. Marches similar to the activities which appellants wish to conduct have been given constitutional protection by this Court, N.A.A.C.P. v. Thompson, 357 F. 2d 831, 841 (5th Cir. 1966), at least so long as they do not deprive the public of police and fire protection. 27 . . . [I] t lias long been settled, indeed from begin ning, that a citizen or group of citizens may assemble and petition for redress of their grievances. . . . A march to the City Hall in an orderly fashion, and a prayer session within the confines of what plaintiffs seek would appear, without more, to be embraced in this right. . . . And these rights to picket and to march and to assemble are not to be abridged by arrest or other interference so long as asserted within the limits of not unreasonably interfering with the rights of others to use the sidewalks and streets, to have access to store entrances, and where conducted in such manner as not to deprive the public of police and fire protection. (Kelly v. Page, 335 F. 2d 114, 118-119 (5th Cir. 1964).) Moses’ testimony below that fire and ambulance service to several parts of the city can be effected only by using the streets on which the ordinance prohibits parades (R, 113, 114) unquestionably deserves consideration. But it will not support wholesale denial of appellants’ rights of free speech and assembly on these streets. There is no showing that demonstrations on Lexington’s main streets and Court Square would impede fire engines and ambu lances. On the contrary, in the one parade that was held after the 1965 ordinance was passed, the participants marched two abreast on the sidewalk (R. 30-31), leaving ample space for other pedestrians and the whole roadstead to emergency vehicular equipment and other traffic. Lex ington’s concern for the free movement of its ambulances and fire engines does not justify blanket prohibition of parading in the downtown area. Regulations limited in their application to emergency situations can surely be 28 drawn that will be effective without infringement of con stitutional guarantees. In general, the facts of cases that recognize a municipal ity’s power to restrict freedom of speech and assembly on its streets are far removed from the facts in this case. In contrast to Lexington—with a population of 2839 (R. 141; CP 27) and with 6000 cars passing daily through the Court Square (R. 31-32)—those cases involved cities with large populations and serious traffic congestion.15 This is not to say that Lexington is entitled to impose no restraints upon the uses of its sidewalks and roadsteads. But an absolute prohibition of parading on all major streets is a constitutionally excessive restraint. Nothing in the 15 In Cox v. New Hampshire, 312 U. S. 569 (1941), in which the Supreme Court affirmed convictions for violating a state statute prohibiting parades or processions on a public street without a li cense, the march was in Manchester, a city of 75,000 people (312 U. S. at 573). The night of the parade, in one hour, more than 26,000 people passed one of the intersections where the parade took place. In Kunz v. New York, 340 U. S. 290 (1951), the Supreme Court held that a city ordinance which proscribed no appropriate standard for administrative action and gave administrative officials discre tionary power to control in advance the right of citizens to speak on the streets was invalid under the First and Fourteenth Amend ments. Justice Frankfurter, in a concurring opinion which appears in Niemotko v. Maryland, 340 U. S. 268, 272 (1951), said: We must be mindful ox the enormous difficulties confronting those charged with the task of enabling the polyglot millions in the City of New York to live in peace and tolerance. Street preaching in Columbus Circle is done in a milieu quite different from preaching on a New England village green . . . I cannot make too explicit my conviction that the City of New York is not restrained by anything in the Constitution of the United States from protecting completely the community’s interests in relation to its streets . . . (340 IT. S. at 284). See also Cox v. Louisiana, 379 U. S. 536, 554 (1965); Hurwitt v. City of Oakland, 247 F. Supp. 995, 1001 (N. D. Calif. 1965). In Kovacs v. Cooper, 336 U. S. 77 (1949), the Supreme Court held that a Trenton, N. J. ordinance that forbad the use or opera- 29 record supports an assertion of regulatory need which goes so far. “A police measure may be unconstitutional merely because the remedy, although effective as a means of pro tection, is unduly harsh and oppressive.” Whitney v. Cali fornia, 274 IT. S. 357, 377 (1927) (Justice Brandeis and Holmes, concurring). [E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by tion on public streets of sound trucks or of any instrument which “emits loud or raucous noises” and is attached to a vehicle on the public streets did not infringe the right of free speech under the First Amendment. The opinion by Mr. Justice Reed said: City streets are recognized as a normal place for the exchange of ideas by speech or paper. But this does not mean the free dom is beyond all control. We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interests, amplified to a loud or raucous volume, from the public ways of municipalities. On the business streets of cities like Trenton, with its more than 125,000 people, such dis tractions would be dangerous to traffic at all hours useful for the dissemination of information, and in the residential thor oughfares the quiet and tranquility so desirable for city dwell ers would likewise be at the mercy of advocates of particular . . . persuasions (336 U. S. at 87). And in Farmer v. Moses, 232 F. Supp. 154 (S. D. N. Y. 1964), a suit to enjoin the New York World’s Fair Corporation from pre venting plaintiffs from picketing inside the fair grounds, the Dis trict Court, in denying that part of the requested injunction per taining to picketing said: Since the Fair grounds consist of 646 acres of land, the crowd density on an average day of 200,000 paid admissions is not inconsiderable, especially when there is factored “in” some 30,000 workers on the scene and when there is factored “out” a substantial number of acres devoted to parking lots, land scaping, sculpture and other structures in or on which people cannot congregate (232 F. Supp. at 158). . . . [Informational picketing of the type understandably sought here is not clearly a desirable method for plaintiffs to use when weighed against such factors as the crowds in attendance, the relatively re stricted areas and spaces, the convenience and enjoyment of visitors who pay admission and the like (232 F. Supp. at 161). 3 0 means that broadly stifle fundamental personal liber ties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose . . . The unlimited and indiscriminate sweep of the statute now before us brings it within the ban of our prior cases. The statute’s comprehensive interference with associational freedom goes far be yond what might be justified in the exercise of the State’s legitimate [purpose] . . . Shelton v. Tucker, 364 U. S. 479, 488, 490 (1960). See also Thornhill v. Alabama, 310 U. S. 88, 97 (1940); Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U. S. 293, 296-7 (1961); N.A.A.C.P. v. Button, 371 U. S. 415, 439 (1963); Cottonreader v. Johnson, 252 F. Supp. 492, 497 (M. D. Ala. 1966); cf. Saia v. New York, 334 U. S. 558, 562 (1948). This case thus falls within the ban of decisions invalidat ing under the First and Fourteenth Amendment restric tions upon speech conduct which are broader than their justification in protecting other legitimate public concerns. No one would deny the City of Lexington power to cope with traffic congestion. But—quite apart from the con sideration that there is no showing in the Lexington com prehensive plan or elsewhere in the record of the slightest relationship between parades and traffic congestion—there is certainly no basis for the proposition that traffic in Lexington is always so heavy that all parades must be pro hibited at all times and in all circumstances in the downtown area. The Board of Aldermen might be justified in pro hibiting parades dining peak-load traffic hours (no such hours were determined by the traffic survey (R. 132)) or in 31 other situations of demonstrated traffic congestion. But the broad prohibition of every parade in the downtown area has no relation to the actual needs of the city. Because it constitutes an overbroad restriction of free speech and assembly, the ordinance must be invalidated. CONCLUSION For the foregoing reasons, the judgment below should be reversed, with directions to issue an injunction as prayed for. Respectfully submitted, Carsie A. H all H enry M. Aronson 538% North Farish Street Jackson, Mississippi 39202 J ack Greenberg J ames M. N abrit, III Melvyn Zarr 10 Columbus Circle New York, New York 10019 A nthony G. A msterdam 3400 Chestnut Street Philadelphia, Pennsylvania 19104 Attorneys for Appellants CERTIFICATE OF SERVICE I hereby certify that on August 5, 1966, I served a copy of the foregoing Brief for Appellants upon the following attorneys for appellees, by United States air mail, postage prepaid: Hon. Joe T. Patterson Attorney General of the State of Mississippi New Capitol Building Jackson, Mississippi Hon. William Allain Assistant Attorney General of the State of Mississippi New Capitol Building Jackson, Mississippi Hon. Pat M. Barrett Post Office Box 447 Lexington, Mississippi Attorney for Appellants 38