Hamer v. Musselwhite Brief for Appellants

    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



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