Walker v. City of Birmingham Brief for Peitioners
Public Court Documents
October 3, 1966
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Brief Collection, LDF Court Filings. Walker v. City of Birmingham Brief for Peitioners, 1966. 7a60ad47-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/38680d4a-a1ed-4001-a111-dda395b649f7/walker-v-city-of-birmingham-brief-for-peitioners. Accessed May 11, 2025.
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I n th e
Buptmu (tart uf tlj? Initt
October Term, 1966
No. 249
W yatt T ee W alker , M artin L u th er K in g , J r ., R alph
A bern ath y , A. D. K in g , J. W. H ayes, T. L. F ish er ,
F . L. S h u ttlesw orth and J. T . P orter,
Petitioners,
v.
C it y oe B ir m in g h a m , a Municipal Corporation
of the State of Alabama.
BRIEF FOR THE PETITIONERS
J ack Greenberg
J am es M. N abrit , III
N orman C. A m aker
L eroy D . Clark
Charles S teph en R alston
M ichael H en ry
10 Columbus Circle
New York, New York 10019
A r th u r D . S hores
1527 Fifth Avenue North
Birmingham, Alabama
Orzell B illin gsley , J r .
1630 Fourth Avenue North
Birmingham, Alabama
A n t h o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa.
Attorneys for Petitioners
H arry H . W ach tel
B e n ja m in S piegel
598 Madison Avenue
New York, New York
Of Counsel
INDEX
PAGE
Opinions Below ........................................... 1
Jurisdiction .......................................................................... 1
Questions Presented .......................................................... 2
Constitutional and Statutory Provisions Involved ..... 4
Statement .... .......................................... ............................... 5
1. Events Prior to the Injunction ........................... 6
2. The Injunction—April 10, 1963 ............................ 11
3. Speeches and Statements on April 11, 1963 ..... 13
4. Events on Friday, April 12, 1963— “Good
Friday” ............................................................. ,..... 16
5. Events on Sunday, April 14, 1963— “Easter
Sunday” ............................................... 19
6. Proceedings in the Courts Below ....................... 22
Summary of Argument ...................................................... 27
A kgum ent-—
I. The Petitioners Were Denied Due Process of
Law and the Equal Protection of the Laws by the
Circuit Court’s Exclusion of Their Proof That
the Birmingham Parade Permit Ordinance,
Which the Court’s Injunction Required Them to
Obey, Was Discriminatorily Applied to Refuse
Them Permits by Reason of Their Race and
Their Advocacy of Civil Rights ........................... 31
PAGE
11
II. The Petitioners Were Unconstitutionally Con
victed of Contempt for Engaging in Marches
Without a Permit .......................................... ........... 40
Introduction: The Unconstitutionally of the In
junction and the Parade Permit Ordinance......... 40
A. The unconstitutionality of section 1159 and
the injunction enforcing it may properly be
considered by this Court on review of peti
tioners’ contempt convictions because the re
fusal of the Alabama Supreme Court to enter
tain this federal defense is not an adequate
and independent state ground of decision ..... 49
B. The convictions denied petitioners due process
of law because there was no evidence that peti
tioners participated in a forbidden “unlawful”
parade or demonstration ..............................55
C. Since the injunction appears to forbid only
■ that which is “unlawful” a construction which
permits convictions under the injunction for
engaging in federally protected activity would
be void for want of fair notice and also for
want of any evidence of contumelious intent,
in violation of due process of law ................... 58
D. On this record, petitioners may not constitu
tionally be punished for violation of an injunc
tive restraint forbidden by the First Amend
ment and whose vagueness casts a broadly
repressive pall over protected freedoms of
expression............................. .... ..... ............... ...... 59
III. Petitioners King, Abernathy, Walker and Shut-
tlesworth Were Unconstitutionally Convicted of
Contempt for Making Statements to the Press
Criticizing the Injunction and Alabama Officials 71
I l l
IV. The Conviction of Petitioners Hayes and Fisher
Denied Them Due Process Because There Was
No Evidence That They Had Notice of or Knowl
PAGE
edge of the Terms of the Injunction ................... 77
Conclusion ...................................................................................... 81
x^PPENDIX—
Statutes of State of Alabama Conferring Con
tempt Powers on Courts ............. ......................... la
Some Ordinances of City of Birmingham, Ala
bama, Requiring Segregation by Race ............... 3a
T able of A uthorities
Cases:
Amalgamated Assoc. S.E.R.M.C.E. v. Wisconsin Em
ployment Relations Board, 340 U.S. 383 ................... 63
Ashton v. Kentucky, 384 U.S. 195 ................................. 47
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 .............47,64
Barr v. City of Columbia, 378 U.S. 146 ......... ............... 54, 55
Blan v. United States, 340 U.S. 159 .............................. 66
^./'Board of Revenue of Covington County v. Merrill,
193 Ala. 521, 68 So. 971 .... ...................... ....... 50, 51, 53, 54
Bouie v. City of Columbia, 378 U.S. 347 ....................... 58
Bridges v. California, 314 U.S. 252 ...............................30, 74
Cafeteria Employees’ Union v. Angelos, 320 U.S. 293 .... 47
Cantwell v. Connecticut, 310 U.S. 296 .....................41, 47, 48
Carlson v. California, 310 U.S. 106 ....... ....................... 45
Carter v. Texas, 177 U.S. 442 ..... ...............................27, 38
Chauffeurs Union v. Newell, 356 U.S. 341 ................... 47
Coleman v. Alabama, 377 U.S. 129 ...............................27, 38
IV
Cox v. Louisiana, 379 U.S. 536 ...... ............ 36,41, 43-44, 47
Cox v. New Hampshire, 312 U.S. 569 .............25,44,45,56
Craig v. Harney, 331 U.S. 367 ...............................30, 74, 75
Dombrowski v. Pfister, 380 U.S. 479 ..... ....... ..47, 62, 63, 68
Donovan v. Dallas, 377 U.S. 408 .................................. 49
Edwards v. South Carolina, 372 U.S. 229 ................. 47
Ex parte Blakey, 240 Ala. 517, 199 So. 857 ................. 66
Ex parte Boscowitz, 84 Ala. 463, 4 So. 279 ....... ........... 66
- 'E x parte Connor, 240 Ala. 327, 198 So. 850 ...............51, 68
Ex parte G-eorge, 371 U.S. 72 ................................... . 49
\y Ex parte National Ass’n for Adv. of Colored People,
265 Ala. 349, 91 So.2d 214 ......... ...............................51-52
Ex Parte Wheeler, 231 Ala. 356, 165 So. 7 4 ................... 54
tx Parte White, 245 Ala. 212, 16 So.2d 500 ................... 54
Fields v. City of Fairfield, 273 Ala. 588, 143 So.2d 177
51, 52, 53
Fields v. City of Fairfield, 375 U.S. 248 ...............30, 55, 81
Fields v. South Carolina, 375 U.S. 4 4 ............................. 47
Fowler v. Rhode Island, 345 U.S. 67 ............................... 36
Freedman v. Maryland, 380 U.S. 51 .......................41,48, 62,
63, 64, 70
Garner v. Louisiana, 368 U.S. 157 ................................ 47, 55
Garrison v. Louisiana, 379 U.S. 64 ............................. ..74, 75
George v. Clemmons, 373 U.S. 241 .................................. 65
Gober v. Birmingham, 373 U.S. 374 ............................... 10
Hague v. C.I.O., 307 U.S. 496 ...................................36, 41, 43
Hamilton v. Alabama, 376 U.S. 650 ......... ....... .............30, 66
Henry v. Rock Hill, 376 U.S. 776 ....................... ............ . 47
Holt v. Virginia, 381 U.S. 131....... ................................ . 74
PAGE
V
Howat v. Kansas, 258 U.S. 181...................................... 52, 61
In re Shuttlesworth, 369 U.S. 35 ................................... 76
In re Willis, 242 Ala. 284, 5 So.2d 716 ...........31, 51, 68, 77
James v. United States, 366 U.S. 213 ...........................58, 59
Johnson v. Virginia, 373 U.S. 61 ...................................30, 65
Jones v. Opelika, 319 U.S. 103.... ..... ................................ 41
Kunz v. New York, 340 U.S. 290 ............. ................. 41, 43, 44
Largent v. Texas, 318 U.S. 4 18 ...................................... 41,43
Lombard v. Louisiana, 373 U.S. 267 ............................... . 37
Lovell v. Griffin, 303 U.S. 444 ...................................41, 43, 48,
57, 65
Marcus v. Search Warrant, 367 U.S. 717 ....................... 62
Marsh v. Alabama, 326 U.S. 501 ............. ......... .......... ...41, 63
McCollum v. Birmingham Post Co., 259 Ala. 88, 65
So.2d 689 ............................................................................ 54
Mills v. Alabama, 384 U.S. 214 ......... ........... ....... ......... 67
NAACP v. Alabama, 357 U.S. 449 ........................ ..53, 54, 55
N A A CP v. Alabama, 377 U.S. 288 .................. 55, 70, 76
NAACP v. Button, 371 U.S. 415 .................45, 47, 62, 64, 68
Near v. Minnesota, 283 U.S. 697 .................................. 64
New York Times Co. v. Sullivan, 376 U.S. 254 — ..... 74
Niemotko v. Maryland, 340 U.S. 268 ...............36, 41, 43, 44
Old Dominion Telegraph Co. v. Powers, 140 Ala. 220,
37 So. 195 ............................................................. ......... 51
Pennekamp v. Florida, 328 U.S. 331 ...................... 30, 74, 75
Poulos v. New Hampshire, 345 U.S. 395 ................... 44
Re Green, 369 U.S. 689 ...................................... 27, 39, 63, 64
Re Sawyer, 360 U.S. 622 .................................. ............. 74
PAGE
PAGE
Saia v. New York, 334 U.S. 558 .......................41,43,44,64
Schneider v. State, 308 U.S. 147 .............. ...................... 41,43
Shuttles worth v. City of Birmingham, 368 U.S. 959 .... 76
Shuttlesworth v. City of Birmingham, 373 U.S. 262 .... 76
Shuttlesworth v. City of Birmingham, 376 U.S. 339 ..53, 76
Shuttlesworth v. City of Birmingham, 382 U.S. 87 ..41, 55, 76
Shuttlesworth v. City of Birmingham, 43 Ala. App. 68,
180 So.2d 114 ........... ............................ ........... ...10, 37, 46, 76
Smith v. California, 361 U.S. 147 ...............................47, 62
Speiser v. Randall, 357 U.S. 513 ....................................... 62
Staub v. Baxley, 355 U.S. 313 ..............41, 42-43, 48, 54, 57, 65
Stevens v. Marks, 383 U.S. 234 ............................................. 66
Stromberg v. California, 283 U.S. 359 ...................30, 32, 73
Taylor v. Louisiana, 370 U.S. 154 ............................... 55
Terminiello v. Chicago, 337 U.S. 1 .......................30, 47, 73
Thomas v. Collins, 323 U.S. 516 ...................30, 32, 47, 49, 73
Thompson v. Louisville, 362 U.S. 199 ......... ..... 29, 30, 55,
57, 77, 81
Thornhill v. Alabama, 310 U.S. 88 ...........45,47,48,62,68
Tucker v. Texas, 326 U.S. 517 ....................................... 41
United States v. Alabama, 252 P. Supp. 95 (M.D. Ala.) 37
United States v. Shipp, 203 U.S. 563 ...................... . 61
United States v. United Mine Workers, 330 U.S. 258
29, 52, 59, 60, 61, 64, 67, 70, 71
Williams v. Georgia, 349 U.S. 375 ................................... 53
Williams v. North Carolina, 317 U.S. 287 ...................30, 73
Wood v. Georgia, 370 U.S. 375 .........................30, 32,47, 74
Wright v. Georgia, 373 U.S. 284 ....................................... 54
Yick Wo v. Hopkins, 118 U.S. 356 .27-28, 31, 35, 36,
37, 44,46
VII
Statutes:
Code of Alabama (Recompiled 1958), Title 13, §§ 4, 5, 9
5, la-2a
Code of Alabama (Recompiled 1958), Title 62, §§628,
632 ................ ..................................................................... 35
General Code of City of Birmingham. (1944), §1159
4, 5, 8,10,26, 32,
. 37,41, 42,43, 44,
45, 46,48, 49, 68
General Code of City of Birmingham (1944), §§369,
597 ............................................ ...... .. .......... .. ........... 5,23,3a
Building Code of City of Birmingham (1944), § 2002.1
5 ,3a
Other Authorities:
1963 Report of the U. S. Commission on Civil Rights ..37, 38
PAGE
Congress and the Nation, 1954-1964 (Congressional
Quarterly Service, 1965) ......................—............... ..... 37
Emerson, The Doctrine of Prior Restraint, 20 L aw &
C o n tem p . P rob. 6218 (1955) ....... ....................... ......... 64
Federal Rules of Civil Procedure, Rule 65(b)
Note, 109 TJ. Pa. L. Rev. 67 (1960) ..................
... 70
.47, 68
I n THE
'ttprm? (Exmrt ni % United States
October Term, 1966
No. 249
W yatt T ee W alker , M artin L u th er K in g , J r ., R alph
A bern ath y , A. D. K ing , J. W. H ayes, T. L. F isher ,
F. L. S h u ttlesw orth and J. T. P orter,
Petitioners,
v.
C it y of B ir m in g h a m , a Municipal Corporation
of the State of Alabama.
BRIEF FOR THE PETITIONERS
Opinions Below
The opinion of the Supreme Court of Alabama (R. 429-
447) is reported at 279 Ala. 53, 181 So.2d 493 (1965).
The opinion of the Circuit Court for the Tenth Judicial
Circuit of Alabama (Jefferson County) (R. 419-425) is
unreported.
Jurisdiction
The judgment of the Supreme Court of Alabama was
entered December 9, 1965 (R. 447-448), and rehearing was
denied January 20, 1966 (R. 449). On April 13, 1966, by
order of Mr. Justice Black, the time within which to file
a petition for a writ of certiorari was extended to June 19,
1966 (R. 451). The petition was filed June 18, 1966, and
was granted October 10, 1966 (R. 452). The jurisdiction
of this Court rests on 28 U.S.C. §1257(3), petitioners
2
having asserted below and here the deprivation of rights
secured by the Constitution of the United States.
Questions Presented
Petitioners, leaders of the civil rights movement in
Birmingham, Alabama in 1963, conducted protest marches
and other demonstrations against racial discrimination
and segregation in that city. On application by the City,
an Alabama state court issued an ex parte temporary in
junction restraining petitioners from parading or demon
strating without a permit and from other vaguely defined
“unlawful” activities. Petitioners have been convicted of
eriminal contempt of court for violating that injunction
by demonstrating without a permit, and for issuing a press
release critical of the injunction and of the Alabama courts.
The questions presented are:
(1) Whether the injunction and the Birmingham parade-
permit ordinance with which it requires compliance are
unconstitutional as vague, overbroad and censorial regula
tions of free speech, in violation of the First and Four
teenth Amendments?
(2) Whether, if the,injunction was unconstitutional, peti
tioners may constitutionally be punished for disobedience
of it? Specifically:
(a) Whether the refusal of the Alabama Supreme Court
to entertain petitioners’ First-Fourteenth Amendment chal
lenge to the injunction rests upon an adequate and in
dependent state ground?
(b) Whether, in view of the unconstitutionality of- the
ordinance, there is constitutionally sufficient evidence to
support a finding that petitioners violated the injunction,
prohibiting unlawful and unpermitted demonstrations?
3
(c) Whether, if the injunction’s prohibition of unlawful
and unpermitted demonstrations is retroactively read to
restrain demonstrations protected by the First and Four
teenth Amendments, petitioners’ contempt convictions are
void under the Due Process Clause for want of fair notice,
and for want of constitutionally sufficient evidence of con
tumacious intent?
(d) Whether, on this record, punishment of the peti
tioners for violating an ex parte temporary injunctive
order prohibited by the First and Fourteenth Amendments
itself violates those amendments?
(3) Whether the trial court, in this contempt proceeding,
improperly deprived petitioners of the opportunity to pre
sent a federal constitutional defense to the charge of vio
lating the court’s injunctive order, by excluding all of
the evidence proffered by them to show that Birmingham
city authorities discriminated on grounds of race and
arbitrarily repressed unpopular advocacy Of civil rights
in their administration of the parade permit ordinance
under which permits were required to be obtained by the
injunction?
(4) Whether petitioners M. L. King, Jr., Abernathy,
Walker and Shuttlesworth were convicted of contempt of
court in violation of the First and Fourteenth Amend
ments when their convictions rested in part upon charges
that they issued a press release critical of the injunction
against them and of the Alabama courts?
(5) Whether in the case of petitioners Hayes and
Fisher, there is constitutionally sufficient evidence to sup
port a finding that they had notice or knowledge of the
terms of the injunction ?
4
Constitutional and Statutory
Provisions Involved
1. This case involves the First Amendment and Sec
tion 1 of the Fourteenth Amendment to the Constitution
of the United States.
2. This case also involves the following ordinance of
the City of Birmingham:
General Code of City of Birmingham,
Alabama (1944), §1159
It shall be unlawful to organize or hold, or to
assist in organizing or holding, or to take part or
participate in, any parade or procession or other
6Ja •
r iLgr
public demonstration on the streets or other public
way of the city, unless a permit therefor has been
secured from the commission.
To secure such permrE7~written application shall
be made to the commission, setting forth the probable
number of persons, vehicles and animals which will be
engaged in such parade, procession or other public
demonstration, the purpose for which it is to be held
or had, and the .streets or other public ways over,
along or in which it is desired to have or hold such
parade, procession or other public demonstration.
! The commission shall grant a written permit for such
parade, procession or other public demonstration,
prescribing the streets or other public ways which
may be used therefor, unless in its judgment the pule
ma.ce, m M y , iiealth, dasengy, gaad-asdsf,
morals, or convenience require that it be refusecm It
shall be unlawful to use for such purposes any 'other
streets or public ways than those set out in said permit.
(
5
The two preceding paragraphs, however, shall not
apply to funeral processions.
3. The following Alabama statutes and Birmingham
municipal ordinances involved are set out in the Appendix,
infra, pp. la-3a.
Code of Alabama (Recompiled 1958), Title 13, §§4, 5, 9;
General Code of City of Birmingham, Alabama (1944),
§§369, 597;
Building Code of City of Birmingham, Alabama (1944),
§2002.1.
Statement
The petitioners are eight Negro ministers who were con
victed of criminal contempt as a result of incidents arising
out of their civil rights activities in Birmingham, Alabama,
in April 1963., Specifically, they were charged with vio
lating a temporary injunction which was issued ex parte
and without notice by the Circuit Court on April 10, 1963
(R. 37y on the complaint of the City of Birmingham veri
fied by City Commissioner Eugene “Bull” Commr _and
Police Chief JaniieT3pore^B. 26-37). On April 26. 1963,
petitioners were adjudged in contempt of the Circuit Court
for the Tenth Judicial Circuit of Alabama, and sentenced
to five days in jail and to pay $50 fines (R. 424-425), the
maximum penalty permitted by Code of Alabama, Title 13,
§9J The Supreme Court of Alabama granted certiorari
to review the case and stayed execution of the sentences
pending review (R. 23). The convictions were affirmed 1
1 There were 15 defendants in the trial court. The charges against
four were dismissed by the trial judge (R. 424). The convictions of
three others were quashed by the Alabama Supreme Court (R. 448).
6
by the Supremo Court of Alabama December 9, 1965
(R. 429, 447), and the stay was continued in effect pending
review in this Court (R. 449).
Petitioners are officers and members of the Southern
Christian Leadership Conference (S.C.L.C.), and its affi
liate, the Alabama Christian Movement for Human Eights
(A.C.M.H.R.).2 The organizations, described as Negro
protest organizations concerned with civil rights and racial
integration, sought to eliminate racial segregation by legal
means, and peaceful protests (R. 219, 320). A state in
vestigator assigned to study racial problems (R. 218)
testified that the organizations’ “teachings have been non
violent” (R. 220), and that “The general theme is non
violence in every program” (R. 221). He felt that they
“were supposedly teaching nonviolence but yet psycho
logically they were advocating violence” (R. 220). Further
program
and the situation to which it was addressed was excluded
as irrelevant aFHhe"trial: they made a proffer on this
subject (R. 297-298).3
1, Events Prior to the Injunction.
On April 3, 1963, a member of the A.C.M.H.R., Mrs.
Hendricks, was sent by Rev. Shuttlesworth to the Birming
ham City Hall to inquire about permits for picketing,
2 The Rev. Dr. Martin Luther King, Jr. is President of S.C.L.C., Rev.
Wyatt Tee Walker was Executive Director o f S.C.L.C., Rev. Fred L.
Shuttlesworth was President of A.C.M.H.R. (R. 205).
3 Petitioners offejgd to prove that “ the Alabama Christian Movement
for Human Rights is an organization seeking to eliminate segregation..
in tlurTlifirTF'T^^ constitutionally protected activity
sucFTas free speech and picketing” and that “ there, is extensive segrega-
HonunTEe™^{y*T^7Birran^iaiirr ^and the organization was “seeking to
eliminate that segregation through peaceful protests against that policy
on the part of the City officials” (R. 297).
7
parading and demonstrating; she was accompanied by a
Baptist minister (B. 353-355). At the City Hall she went
first to the Police Department, spoke with a police officer
at the desk, Mr. Clayburn, and asked “to see the person
or persons in charge to issue permits, permits for parading,
picketmg*an3^monstratin^’_(R. 353). She then went to
the office of Commissioner Eugene “Bull” Connor (Public
Safety Commissioner of the City of Birmingham (R. 288)).
She testified:
I went to Mr. Connor’s office, the Commissioner’s
office at the City Hall Building. We went up and
Commissioner Connor met us at the door. He asked,
“May I help you?” I told him, “Yes, sir, we came
up to apply or see about getting aTperm iO orbicket-
ing, parading, demonMraimgyfT T . (R. 354).
I asked Commissioner Connor for the permit...and..
asked if he could issue the permit, or other persons
who would refer me to, persons who would issue a
permit. He said, “No. you will not get a permit in
Birmingham, AIal)£ina~To~mcEefl' T"will picket you
-qyej .fail,” n.fiTf he repeated that twice "
(R. 355).4 ’ ......*—==................... .
On April 5, 1963, petitioner Shuttlesworth sent a tele
gram to Commissioner Connor requesting a permit to
picket “against the injustices of segregation and discrim-
” ination” on desigmated_sidewa1ks on April 5th and 6th,
and stating “We shall observe the normal rules of picket-
4 Mrs. Hendricks’ testimony was not contradicted; however, the Court
granted the City’s motion to exclude it from the record saying, “ I don’t
think the statement of Mr. Connor would be binding on the Commission”
(E. 355).
8
_ing” (Exhibit B, B. 350, 416).5 Within a few hours, Mr.
'TTonnor wired back a reply:
UNDER THE PROVISIONS OP THE CITY CODE
OF THE CITY OF BIRMINGHAM, A PERMIT TO
PICKET AS REQUESTED BY YOU CANNOT BE
GRANTED BY ME INDIVIDUALLY BUT IS THE
RESPONSIBOITY (sic) OF THE ENTIRE COM
MISSION. I INSIST THAT YOU AND YOUR
PEOPLE DO NOT START ANY PICKETING ON
THE STREETS IN BIRMINGHAM, ALABAMA.
EUGENE “BULL” CONNOR, COMMISSIONER
OF PUBLIC SAFETY
(Exhibit A, R. 289, 415.)6
Petitioners made an effort to offer further proof with
respect to the administration of the Birmingham parade
permit ordinance (City Code §1159, quoted supra, pp. 4-5),
but the Court sustained the City’s objections to questions
5 The telegram stated: “DEAR MR. CONNOR, THIS IS TO CER
TIFY THAT THE ALABAMA CHRISTIAN MOVEMENT FOR HU
MAN RIGHTS REQUEST A PERMIT TO PICKET PEACEFULLY
AGAINST THE INJUSTICES OF SEGREGATION AND DISCRIMI
NATION IN THE GENERAL AREA OF SECOND THIRD AND
FOURTH AVENUES ON THE EAST AND WEST SIDEWALKS OF
19 STREET ON FRIDAY AND SATURDAY APRIL FIFTH AND
SIXTH. WE SHALL OBSERVE THE NORMAL RULES OF PICK
ETING. REPLY REQUESTED.”
6 On the next day, April 6, Shuttlesworth wired Commissioner Connor,
Birmingham Police Chief Jamie Moore, and County Sheriff Melvin
Bailey, stating that a group of not more than thirty persons would ac
company him to City Hall for a brief prayer service, and specifying
the route they would follow approaching and leaving City Hall, that
they would block no doors or sidewalks, where the group would disperse,
that it would be orderly, and that they would proceed “no more than
two abreast strictly observing all traffic signals” (Exhibit C, R. 361,
367, 417). Chief Moore said that no action was taken on the telegram
(R. 363). The marchers were arrested for parading without a permit
(R. 42, 72-73).
9
about tlie general practice (B. 281-287). Petitioners’ cmin-
sel stated that he wanted to “ascertain what is the nature
of marches, or parades in which -permits are granted”
and “ inquire into the procedure to see how these are ac
quired” (E. 282). Counsel stated that he planned to prove
through the city clerk that:
“The City Commission does not grant permits and
never has; that these are granted by the City Clerk
at the request of the traffic division according to no
published rule or regulation. We can establish it very
easily because that is in fact the practice” (E. 284).
The city clerk, who was also secretary to the Commissi on
(E. 281), testified that he kept a record of permits issued
for parades (E. 283). However, he was not allowed to
answer whether the Commission had ever voted to grant
a parade permit (E. 283). When the witness was asked
to describe the practice for granting permits, the Court
sustained an objection, saying:
I think the question asking for the general practice
in such instances cannot be allowed because the ordi
nance itself which is governing this situation allows
certain discretion in the City Commission, and to
attack the act of the Commission in this proceeding
would not be relevant (E. 284).
The witness did testify that there were no published rules
and regulations concerning the manner of applying for
parade permits apart from the City Code (E. 286). Peti
tioners’ counsel’s statement as to the practice, quoted above
(E. 284), was accepted as an offer of proof (E. 287). The
city clerk testified that petitioners had not appeared before
the City Commission to request a permit (E. 287). Peti
tioners also offered to prove by Commissioner Connor’s
1 0
testimony “that the City Commission has never issued any
permit” in any case, but objections to the questions were
sustained (E. 290). Commissioner Connor was asked
whether any picketing of any kind was permitted in
Birmingham, but objections to this question were also
sustained (R. 290-291).
Chief Inspector Haley, second ranking officer on the
police force (E. 145), said that he had seen various parades
in the city, and did not recall having made arrests for
any parade that had a permit; said that he got notice of
parades through the Chief’s office; and referred to some
parades as being “legal” (E. 178).
The City did not present any testimony with respect
to any of the parades or other demonstrations before the
date of the injunction, and petitioners were not allowed to
put on evidence about the demonstrations prior to the
injunction (E. 295-297). Some of these demonstrations
resulting in arrests of demonstrators are described in affi
davits by police officers and counter-affidavits by demon
strators which"were 'attached"to the pleadings (R. 39-43,
70-81).7
7 The police affidavits mentioned five sit-in demonstrations where there
were arrests for “ trespass after warning” and four episodes where pickets
or marchers were arrested for parading without a permit during the
period April 3 to April 10, 1963 (R, 39-42). Counter-affidavits by demon
strators were filed stating their version o f the same incidents (R. 70-81).
The marchers and pickets were arrested for parading without a permit
under City Code Section^ 1159, supra, p. 4. The demonstrators alleged
that the trespass after warning arrests were efforts by the City to en
force a city ordinance requiring separation of the races in restaurants,
City Code Section 369 (text at R. 69) (R. 67). This was the ordinance
involved in Gober v. Birmingham, 373 TT.S. 374 and the trespass prose
cutions were dismissed after that decision. The bulk of the prosecu-
tions for-jaarftfee^^athm t a permit under section I1159r'are~stdi pending
luvaiting.tlur.oujmme .(if ■'•'hiitlbsworlh v. City o f Birmingham,...4iL-41a,
App. 68, 180 So.2d 114 ( Section 1159 held unconstitutional), now pend
ing on certiorari in the Alabama Supreme Court! ” ^
1 1
2. The Injunction— April 10, 1963.
, At_9:0Q p.m. April 10, 1963 (B. 37),
the City filed a Bill of Complaint IB. 25-37), verified^ by
Commissioner Connor and Chief Moore, seeking injunctive
relief against 138 named individuals and two organiza-
tions, S.C.L.C. and A.C.M.H.B., and presented it to the
Hon. W. A. Jenkins, Circuit Judge. Among the 138 in
dividuals named as respondents in that complaint were
six of the eight petitioners in this Court.8 The City alleged
that from April 3 through April 10 “ respondents sponsored
and/or participated in and/or conspired to commit and/or
to encourage and/or to participate in certain movements,
plans or projects commonly called ‘sit-in’ demonstrations,
‘kneel-in’ demonstrations, mass street parades, trespass
on private property after being warned to leave the prem
ises by the owners of said property, congregating in mobs
upon the public streets and other public places, unlawfully
picketing private places of business in the City of Birming
ham, Alabama; violation of numerous ordinances and stat
utes of the City of Birmingham and State of Alabama; . . .”
It was alleged that this conduct is “calculated to provoke
breaches of the peace” and “threatens the safety, peace
and tranquility of the City” (B. 31-32). There were alle
gations with respect to several lunch counter demonstra
tions and processions on the streets (B. 32-33); a claim
that the conduct placed “an undue burden and strain upon
the manpower of the Police Department” ; a statement
that no “kneel-in” demonstration had occurred “up to the
present time,” but that the conduct alleged was “part of
a massive effort . . . to forcibly integrate all business es
tablishments, churches and other institutions” in the City
8 The petitioners named in the complaint were the Reverends Walker,
M. L. King,. Jr., A. D. King, Shuttlesworth, Abernathy and Porter
(R. 25). Petitioners J. W. Hayes and T. L. Fisher were not named in
the Bill o f Complaint. . «»-..... ,
0
1 2
and that “respondents are conspiring to and will conduct
‘kneel-in’ demonstrations at the various churches . . . in
violation of the wishes and desires of said churches unless
enjoined therefrom” (B. 35).
Immediately and without notice, Judge Jenkins issued a
temporary injunction restraining:
X
the respondents and the others identified in said Bill of
Complaint, their agents, members, employees, servants,
followers, attorneys, successors and all other persons in
active concert or participation with the respondents
and alFpersons having notice of said order from con
tinuing any act hereinabove designated particularly:
engaging in, sponsoring, inciting or encouraging mass
street parades, or mass processions or like demmistra-
jions wtHtouTIi permit, trespass on private property
after being warned to leave the premises bv the owner
j , or person in possession of said private property, con-
'**>_ gregating on the street,~oF*~pub!ic places into mobs.
v i and unlawfully picketing business establishments or
public building's in the City of Birmingham, Jefferson
. W , County, State of Alabama or performing acts cal-
' 4® .1 ulated to cause breaches of the peace in the City
77] of Birmingham, Jefferson County, in the State
of Alabama or from conspiring to engage in unlawful
street parades, unlawful processions, unlawful demon
strations, unlawful boycotts, unlawful trespasses, and
unlawful picketing or other like unlawful conduct or
f rom violating the ordinanHs~oTTEe~Crtv of Birming
ham and the Statutes of the State of Alabama or
from doing any acts designed to consummate con
spiracies to engage in said unlawful acts of parading,
demonstrating, boycotting, trespassing and picketing or
other unlawful acts, or from engaging in acts and con
duct customarily knoym^nT'^^ in churches in
w*
$ r O
\$*\* Y
jhi
13
violation of the wishes and desires of said churches
(R. 38).
Six of the petitioners were served on April 11 and
April 12; the court below found that petitioners Hayes and
Fisher (who were not named in the complaint) “were not
served with a copy of the injunction until after the Sunday
march” (R. 445), but concluded on the basis of the testi
mony that “ each of them had knowledge of the injunction
prior to that parade” (R. 445), and sustained their con
victions. A detailed and complete statement of the evi
dence concerning notice to Reverends Hayes and Fisher
is set forth below in the portion of the Argument urging
that they were convicted on a record containing no evi
dence that they had knowledge of the terms of the injunc
tion (infra, pp. 76 to 80).
3. Speeches and Statements on April 11, 1963.
The City’s evidence was that when the injunction was
served Rev. Shuttlesworth said, “ speaking of the injunc
tion handed to him: ‘This is a flagrant denial of our con
stitutional privileges’ ” (R. 194). A newsman described
Shuttlesworth’s reaction:
“In no way will this retard the thrust of this move
ment.” He said they would have to study the details.
He said, “An Alabama injunction is used to misuse
certain constitutional privileges that will never be
trampled on by an injunction. That is what they were
saying that particular night right after the injunction”
(R. 194).
At the same time, Rev. Abernathy made the statement,
“An injunction nor anything else will stop the Negro from
obtaining citizenship in his march for freedom” (R. 194).
14
Later, on April 11 at around 12:45 p.m., there was a
press conference attended by Revs. Martin King, Aber
nathy and Shuttlesworth; Rev. Walker distributed a press
release which Dr. King read aloud (R. 248-249). The text
of the statement, quoted in full in the opinion of the
Alabama Supreme Court (R. 431-433) (Complainants’ Ex
hibit 2; R. 409-410) is set out in the note below.9
9 The press release said:
In our struggle for freedom we have anchored our faith and hope
in the rightness of the Constitution and the moral laws of the uni
verse.
Again and again the Federal judiciary has made it clear that the
privileges guaranteed under the First and the Fourteenth Amend
ments are too sacred to he trampled upon hy the machinery of state
government and police power. In the past we have abided by
Federal injunctions out of respect for the forthright and consistent
leadership that the Federal judiciary has given in establishing the
principle of integration as the law o f the land.
However we are now confronted with recalcitrant forces in the
Deep South that will use the courts to perpetuate the unjust and
illegal system of racial separation.
[fol. 483] Alabama has made clear its determination to defy the law of
the land. Most of its public officials, its legislative body and many of
its law enforcement agents have openly defied the desegregation deci
sion of the Supreme Court. We would feel morally and legal responsi
ble to obey the injunction if the courts of Alabama applied equal jus
tice to all of its citizens. This would be sameness made legal. However
the issuance of this injunction is a blatant o f difference made legal.
Southern law enforcement agencies have demonstrated now and
again that they will utilize the force of law to misuse the judicial
process.
This is raw tyranny under the guise of maintaining law and order.
We cannot in all good conscience obey such an injunction which is
an unjust, undemocratic and unconstitutional misuse o f the legal
process.
We do this not out of any disrespect for the law but out o f the
highest respect for the law. This is not an attempt to evade or
defy the law or engage in chaotic anarchy. Just as in all good con
science we cannot obey unjust laws, neither can we respect the unjust
use of the courts.
We believe in a system of law based on justice and morality. Out
of our great love for the Constitution of the U, S. and our desire
to purify the judicial system of the state of Alabama, we risk this
critical move with an awareness of the possible consequences involved.
15
Police Lt. House said that after King read the state
ment, Shuttlesworth read another statement “more or less
re-affirming” what had been said by King (R. 250).; and
that Rev. King said “ The attorneys would attempt to dis
solve the injunction, but we will continue on today, tomor
row, Saturday, Sunday, Monday and on” (R. 252).
At a meeting in a church on the evening of Thursday,
April 11, King and-ARernathv made speechesAIBEiBfan-
ton, a radio station news director, testified that Dr. King
said. “Injunction oiy no jnjunetion we are going_ to_maxck...
■ .tomorrow” (R. 243); and that King also said, “ In our
movement here in Birmingham we have reached the point
of no return” and “Now Mr. Connor will know that the
injunction can’t stop us” (R. 244).10 He said Reverend
Abernathy led a call for volunteers, and Rev. Shuttlesworth
led the singing (R. 245). Mr. Stanton testified that Rev.
Abernathy made the statement, “I feel better tonight be
cause tomorrow me and Dr. King are going to jail” (R.
246). Another witness said that at the series of meetings
during April, they were recruiting people who were willing
to go to jail (R. 203).
10 J. Walter Johnson, an Associated Press reporter gave a different
account of King’s speech on the evening of April 11th. With respect to
the speeches by King and Abernathy, he said “ The word ‘injunction,’
itself, never did come up that I can remember or see offhand. They did
speak o f boycotts, and boycott was included with the entire movement”
(R. 188). He said that King’s speech had to do with a boycott o f stores
“until Negroes can use the lunch counters” (E. 189).
Johnson said that King said “Abernathy and I will make our move on
Good Friday, symbolizing the day Jesus hung on the cross,” and that
“We must love all white persons, we must love even Bull Connor” (R.190).
Abernathy said, “ I am against white supremacy, I am against black
supremacy, I am against any kind of racial supremacy” (R. 191).
Mr. Johnson was asked if there was any occasion when any o f them
used the . word “march” at all, and he responded “Not that I have, no,
sir.” (R. 191).
16
4. Events on Friday, April 12, 1963— Good Friday
All of the testimony about the events on the afternoon
of April 12, 1963, was given by two law enforcement offi
cers, W. J. Haley, Chief Inspector of the Birmingham police
force,11 and Lt. Willie B. Painter, investigator for the
Alabama Department of Public Safety.12
The police had advance information that there would be
a. ma.rclT'oir^ridav from a church at 16th Street and Sixth
Avenue to the City Hall (R. 146). Chief Inspector Haley
was telephoned by Rev. Wyatt Tee Walker who said that
he was calling for Martin Luther King, and that “ they in-
tended to make a march on City Hall. a.L12H^l’. (R. 180; see
also R. 176). Haley could not remember the date he re
ceived this call but knew that it referred to the Good Fri
day march. Haley told Walker “ that in my opinion that
would be a violation of the City ordinance and instructed
him that unless he obtained a permit for the same we would
have to arrest him, and asked him to convey that informa
tion to Martin Luther” (R. 180).
A crowd gathered in and around the church on Friday
from noon until about 2:00 p.m. (R. 206, 155). There were
350 to 400 people insi5e~the church (R. 148) and a large
crowdmoF~Kegroes gathered nearby on the sidewalks, in
private yards and in a large park near the church (R. 148,
161). Inspector Haley said that there werejighty^rjeighty-
five policemen in the area (R. 340). The officers were able
to keep the sidewalks and street clear (R. 182, 224), and
made no effort to disperse the crowd which was milling
around the area (R. 161, 223-224). The police blocked off
vehicular traffic before the march (R. 160, 163).
11 Chief Inspector Haley’s testimony about the Friday events is at
R. 145-148, 155-156, 159-164, 171-172, 175-176, 180-184 and 340.
12 Lt. Painter’ s testimony about the Friday afternoon events is at
R. 206-209, 222-225, 229.
17
At about 2 :00 p.m., Lt. Painter saw Revs. M. L. King,
Abernathy and Shuttlesworth arrive in a car driven by
Rev. Walker, and enter the church (R. 207). Walker drove
away (R. 207). “A short time thereafter a group came out
of the church and began what appeared to be a parade or a
march in the direction of downtown Birmingham” (R. 207).
“ The group was led by Rev. Martin Luther King, Jr., Rev.
Ralph Abernathy, Rev. Shuttlesworth” and others (R. 207).
Haley said that the ministers and the group following
them “were marching on the sidewalks two abreast” and
were evenly spaced (R. 156). He estimated “there were
approximately, I would say, fifty or sixty in the original j\.
march. Well, more than fifty, because fitty-one were ar-
rested” (R. 147). The ministers at the front of the march
were wearing long black robes over their suits (R. 184).
The marchers were orderly,13 carried no signs or placards
(R. 175), and did not cross against any red lights or violate
any traffic regulations (R. 160). They remained on the
sidewalk (R. 163, 229) and walked about two blocks before
they were stopped by the police where fifty-one marchers,
including petitioners Martin King, Abernathy and Shuttles
worth, were arrested for parading without a permit (R. 146,
147, 175).
Inspector Haley said that there were a “ large number of
on-lookers, or by-standers, that were not participating in
the actual march” who were “clapping and hollering and
hooping on the sidelines” (R. 146). He estimated that there
were “between one thousand and fifteen hundred that were
not participatinglh~tfrKaefiiar^ who were follow
ing and in various places in the area (R. 147). He said,
13 Asked if the marchers were orderly, Haley said: “ The marchers, as
far as I know, didn’t use any profanity. They were not taunting like
the crowd” (E. 163).
the sidewalk (R. 163).
He also said that they did not push an;
\AJ J M
18
A “ They were following the marchers, hnt not in the proces
sion. Most of them were on the south side of the street, and
the marchers had started on the north side . . .” (R. 146).
A Iter the arrest of the marchers, according to Haley, this
crowd got “ unruly” and three people were arrested “ one
* or two for loitering . . . and possibly one for resisting ar
rest, loitering and resisting” (R. 147). There was no evi
dence of violence or anything of that nature during or after
the Good Friday march led by King, Abernathy and
Shuttles worth.
Afterwards the crowd returned to the church where there
was a song and prayer service on the steps (R. 209). The
only petitioner, other than_King, Abernathy and Shuttles-
who was mentioned asbeuig present on Friday was
Rev. Walker.14 As the march proceeded, Walker walked
along with Lt. Painter and police Lt. Ralph Holmes follow
ing the marchers (R. 208). There was no testimony that
Walker was walking in the march and he was not arrested.15
“A short time after the arrests,” Painter observed Rev.
Walker standing “ in the middle of the block in the park . . .
waiving his arms” and directing people passing him to
“make one circle around the park” ; but the police ordered
them to disperse and they assembled at the church steps
for the song and prayer service (R. 208-209).
Neither of the police witnesses maintained that either the
marchers or the crowd of onlookers blocked the streets on
Friday. Chief Inspector Haley testified (R. 160):
Q. At the time these individuals were marching did
they march against any red lights or violate any traffic
regulations, anything of that sort? A. To my knowl-
14 There was no testimony that petitioners A. D. King, Hayes, Fisher
pi Porter were involved in the Friday march.
15 Haley did not see Walker that day (R. 171).
19
edge they did not. I couldn’t observe all of it. My at
tention was focused on the crowd and not on the lights.
The streets were wholly blocked off, so it would not
have made any difference so far as vehicular traffic was
concerned'. ~ ....~ ..-........
Q. Did the marchers block the streets off or did the
PoliceDepartment block the streets? A. The Police
Department 'had''‘previously blocked the vehicular traf
fic off.
And similarly (R. 163):
Q. Then after the marchers came out they did not
block any traffic or impede the free movement of people
on the streets, did they? A. The traffic was already
blocked for the marchers.
Q. The traffic was already blocked by the Police: De
partment? A. By the Police Department.
Lt. .Painter’s testimony was in accord: “ The streets were
basically kept open” (R. 225). .
Inspector Haley stated that the police did not allow any
white people (except press and policemen) to come into the
Negro area where these evenFsoccurred (R. 170); that there
was never any “ direct conflict or any direct contact between”
any whites and Negroes (R. 182) • and that the police de
partment was able to maintain law and order, although he
thought this was “haM'’’J7RTl8T183T7
5. Events on Sunday, April 14, 1963— “ Easter Sunday”
On Sunday, April 14, 1963, the police received “advance
word” (R. 149) that there would be a march from the
Thurgood C.M.E. Church (R. 165, 311) at S^fe^th Avenue
and Eleventh Street north toward the
Beginning around 2:30 or 3:00 p.m.
2 0
gather for about an hour and a half and a service began in
side the church (R. 214). Again the police assigned 80 or
85 men to the area (R. 340), and they allowed the crowd-
to congregate on .streets and sidewalks inThe area (h*. 166),16
making no effort to disperse them (R. 228, 267). The police
“blocked off the area,” rerouted all vehicular traffic away
from the area, and kept white people out of the neighbor
hood (R. 154). The officers established a “blockade” two
blocks from the church to stop the march (R. 216). Esti
mates of the total crowd in the area ranged as high as
1,500 to 2,000 people (R. 150, 231).17
Lt. Painter saw Rev. Walker “ forming a group of people
two or three abreast” outside the church (R. 214). Later
a group came out of the church and began walking at a
rapid rate along the sidewalk (R. 215). This group was led
by several ministers wearing robes, including petitioners
A. D. King, Porter, Hayes and Smith (R. 266-267), walking
two abreast (R. 169, 265, 266), down the sidewalk (R. 266).
Petitioner Fisher was also in the group (R. 302). (Peti
tioners M. L. King, Abernathy and Shuttlesworth, who had
been jailed on Friday, were not in the Easter march.) The
ministers walked a short distance, leading an estimaterLAQ-̂ ..
people (R. 233, 234, 235). Officer Higginbotham observed
them coming “ out of the church in two’s side by side” and
proceeding “ on the sidewalk” (R. 266). When they were
“marching north between 10th and 11th streets through a,
v a ca n lloP ^ IL 267), Higginbotham askecTTFTEey had a
16 Inspector Haley said: “ They were standing on people’s steps, stand
ing in people’s yards and just various places. Actually, I would say
most of them were on private property. There were some of them that
were on the sidewalk, but not enough to constitute a blockage or to
cause a police problem because the traffic department was there to take
care o f any traffic hazards that might come up” (E. 166).
17 Lt. Painter’s estimate was lower— “eight hundred or a thousand
people in the church and outside the church” (R. 214).
2 1
parade permit and when they said they did not (R. 268), he
placed Revs. Porter, A. D. King, Hayes and Smith under
arrest (R. 269). Rev. Fisher was also arrested (R. 302).
The total number arrested was said to be “ in the twenties”
(R. 150, 168).
When the ministers began their walk from the church,
--about three or four hundred people in -the. crowd which had
gathered outside began proceeding in a ma<s down the mid
dle ofJJie-ste©et-.(R. 156-157, 158).
The officers said that the crowd was singing and shouting
and that there was “a lot of heckling going on” (R. 269)
and that they were jeering and cursing and belittling the
police (R. 153). But officer Higginbotham said that the
mihlsfpTs|were “not loud or boisterous” (R. 268) and that
when" arrested' they “did notresisf in any respect” and
walked with him to the patrol wagon (R. 269).
h
One woman was arrested and she resisted^arrest, (R. 150-
15lJ7b:ur^hieFTnipeHor^nIey^aTd”’fhat “She was not a
member of the marchers. She was not dressed as a church
goer” (R. 150; see also 183). While the woman was being
subdued by the police several rocks were thrown, one nar-
g-missing the arresting officer, another hitting a motor-
[andfanother hitting a news photographer (R. 15, 216-
31-233). Three people who threw the rocks were im-
..mediately taken into custody by the police (R. 183, 217);
they were not identified by name at this trial, nor was there
any claim that they were among the marchers. Indeed,
Inspector Haley stated that the > episode of rock throwing
occurred after the twenty marcherswere arrested (R. 183).
__ aamjA w ere no other episodeiToTT^ the demon
stration ~ .. - ---------- '
Lt. Painter said that the police then moved out of the
area and the Negroes began walking back toward the
2 2
church, where he saw Rev. Wyatt Walker beckoning the
people to come inside (R. 217).
6. Proceedings in the Courts Below.
On April 15, 1963, petitioners filed a motion to dissolve
the injunction in which they asserted that the injunction
denied them due process of law under the Fourteenth
Amendment because it was issued without notice to them,
because it was excessively vague, because it was a prior
restraint on free speech protected by the First Amend
ment, because it was designed to enforce the city restau
rant. segregation law, because it was based upon a com
plaint which described only constitutionally protected con
duct, and because the parade ordinance upon which it was
based was excessively vague (R. 65-68). Petitioners also
filed a demurrer (R. 120-122), an answer (R. 122-124), and
an amended answer (R. 132-134) to the bill for injunction
in which they raised similar constitutional claims.
The court set a ihearing on the motion to dissolve for
April 22, 1963 (R. 82). ,
— ---------—■— ;— ------ -j
[ Later, on April 15, the City of Birmingham filed a motion
for an ord<mtosh<w should not be
held in contempt "?o7~vmlatnig- the temporary’Tnfunc^oii
(R. 82-90), The court issued an order directing petitioners
to appear on April 22 and show cause why they should
not be punished for contempt of court (R. 92-94).
At the beginning of the hearing the court ruled that even
though petitioners had filed their motion to dissolve first,
it would consider the contempt charge first (R. 139).
In response to the show cause order, petitioners filed a
“motion to discharge and vacate order and rule to show
cause” saying that they had not violated the injunction
because it .prohibited engaging in or encouraging others
23
to engage in “unlawful” conduct specified therein, whereas
the petitioners’ conduct was lawful conduct protected by
the First Amendment and the due process and equal pro
tection clauses of the Fourteenth Amendment to the Con
stitution of the United States. Petitioners also said that
the original bill for injunction upon which the temporary
injunction was based did not show that they had engaged
in unlawful conduct but that they had engaged in conduct
protected by the First and Fourteenth Amendments (E.
125-126).
In their answer to the petition for a show cause order,
petitioners described the lawful conduct protected by the
First and Fourteenth Amendments in which they had en
gaged : • - <>f"" •
a) Walking two abreast in orderly manner on the
public sidewalks of Birmingham observing all traffic
regulations with prior notice having been given to
city officials in order to peacefully express their protest
against continuing racial discrimination in Birming
ham.
\ i
b) Peaceful picketing in small groups and in orderly
manner of publicly and privately owned facilities.
c) Eequesting service in privately owned stores open
to the general public in exercise of their right to equal
protection of the laws and due process of law which
are denied by Section 369 of the 1944 General City
Code of Birmingham (R. 128-129).
Petitioners’ motion for a severance of civil and criminal
contempt charges against them (R. 127, 140), was denied
(R. 140).
After the City rested, and again at the end of the trial,
petitioners moved “ to exclude the evidence,” in an oral
V
24
motion (R. 272, 370), later reduced to writing (R. 135),
in which they asserted that there was no evidence showing-
why they should be punished for contempt based on “the
statements made publicly at press conferences and mass
meeting on April 11, 1963,” since the evidence showed that
they had “ engaged only in activity protected by the First
Amendment and by the due process clause of the Four
teenth Amendment to the Constitution of the United
States.” Petitioners T. L. Fisher and J. W. Hayes as
serted that there was no evidence showing that they were
served with copies of the court’s injunctive order of April
10, 1963, prior to their arrest and imprisonment for parad
ing without a permit on April 14, 1963 (R. 135-137).
The issues at the trial were subsequently specified by
the Supreme Court of Alabama by quoting (R. 437) a
colloquy which occurred during the hearing:
During the hearing on the charge that petitioners
had violated the injunction, the trial court stated
the issues presented by the evidence as follows:
The Court: The only charge has been this nartic.-
I ular parade, the one on Easter Sunday and the one ,
I j on G-ood Friday, and on the question of the meeting,
I j at which time some press release was issued. Am I
correct m that?
Mr. McBee: Essentially that is correct.
The Court: T~doh7F¥^~wof any other evidence
or any other occasions other than those, and I see no
need of putting on testimony to rebut something
where IlLereTiaiT>ee5^^
At the outset of its opinion adjudging petitioners in con
tempt, the trial court noted...that the petitioners were
charged with violating the temporary injunction “by their
25
issuance of a press release . . . which release allegedly con-
tained derogatory statements concerning Alabama courts
and the injunctive order of this Court in particular” (R.
420). The opinion said they were “ further” charged with'
violating the injunction by participatlng~m~and conducting
TeHaanparades in violation of a city ordinance prohibiting
“parades without
These were “past acts of disobedience and disrespect for the
orders of this court and the nature of the orders sought
would be to punish the defendants” the proceeding was
“an action for criminal contempt” (R. 420). The
subsequently found generally that “ the actions” (without
further specification) of petitioners were “ obvious acts
of contempt, constituting deliberate and blatant denials of
the authority of this Court and its order” (R. 422).
l/tf y-tHA-gs
In response to petitioners’ claim that their acts were
lawful because constitutionally protected by the First and
Fourteenth Amendments, the trial court held that Section
1159 (the parade-permit ordinance) “ is not invalid upon
its face as a violation of the constitutional rights of free
speech as afforded to these defendants in the absence of a
showing of arbitrary and capricious action upon the part
of the Commission of the City of Birmingham in denying
TEe~ciHen(Ian1jrir’̂ ^
Judge Jenkins cited Cox v. New Hampshire, 312 U.S. 569,
to sustain the parade ordinance (R. 422). The Court then
said that “ legal and orderly processes” required defen
dants to attack an unreasonable denial of a permit by a
motion to dissolve the injunction, and that since this was
not done, “ the Court is of the opinion that the validity
of its injunction order stands upon its prima facie au
thority to execute the same” (R. 422).
In their petition for certiorari to the Supreme Court of
Alabama, petitioners made substantially the same claims
26
as below, asserting that the judgment of contempt denied
rights secured by the First and Fourteenth Amendments
in that the punishment constituted a prior restraint on
freedom of speech, association, and the right to petition
for redress of grievances; that the injunction was excessive
and vague, contrary to the due process clause of the Four
teenth Amendment, particularly in the context of an order
restraining First Amendment rights; that the City of
Birmingham failed to produce evidence which showed that
petitioners did anything other than exercise constitutional
rights of free expression; and that, therefore, the con
tempt decree was based on no evidence of guilt, in viola
tion of the due process clause of the Fourteenth Amend
ment (R. 21-22).
The Alabama Supreme Court held that because peti
tioners admittedly continued protest demonstrations after
the injunction issued, they violated the order against en
gaging in parades without permit (R. 437-438). The Court
said, “Petitioners rest their case on the proposition that
Section 1159 of the General City Code of Birmingham,
which regulates street parades, is void because it violates
the First and Fourteenth Amendments of the Constitu
tion of the United States, and, therefore, the temporary
injunction is void as a prior restraint on the constitution
ally protected rights of freedom of speech and assembly”
(R. 439-440). The Court held that “ the circuit court had
the duty and authority, in the first instance, to determine
the validity of the ordinance, and, until the decision of
the circuit court is reversed for error by orderly review,
either by the circuit court or a higher court, the orders
of the circuit court based on its decision are to be respected
and disobedience of them is contempt of its lawful au
thority, to be punished” (R. 444). It therefore affirmed
petitioners’ convictions for contempt.
27
Summary of Argument
I.
The trial court adjudged petitioners in contempt of court
for violation of its injunctive order without affording them
an opportunity to prove thaUag the racially discriminatory
‘withholding of parade permits city authorities prevented
them from doing what the injunctive order required.
The court "CtelltEcT petitioners an~opportunity to prove:
that Birmingham city authorities discriminatorily admin
istered the parade permit ordinance and assumed arbitrary
and censorial control over the use of the city streets by
abuse of the permit power; that these authorities wrong
fully refused for racial reasons to grant permits for peace
ful civil rights demonstrations; that these authorities, in
order to deny petitioners their federal constitutional rights
of free speech and equal protection of the laws, applied
for and obtained from the trial court the ex parte injunc
tion which forbade the petitioners to conduct demonstra
tions ; and that the same authorities, by manipulation of the
procedures of the permit-application process, and abuse
of their discretion in passing on requests for permits, wil
fully violated the Equal Protection Clause in denying peti
tioners the permits to demonstrate required by the parade
permit ordinance and injunctive order.
This abuse of the state judicial process denied petition
ers due process of law and equal protection of the laws.
Petitioners were entitled to a hearing on the contempt
charges before being convicted. Re Green. 369 U.S. 689,
and, at that hearing, they were entitled to an opportunity
to prove their federal constitutional defense to the criminal
charge, Carter v. Texas, 177 U.S. 442, 448-49; Coleman v.
Alabama, 377 U.S. 129, 133. Under Yick Wo v. Hopkins,
28
118 U.S. 356, racially discriminatory administration of the
permit ordinance to which this injunction commanded
obedience was such a defense.
II.
Petitioners’ contempt convictions are based upon an in
junction which orders obedience to the Birmingham parade
ordinance. That ordinance is unconstitutional because i t —
grants unfettered administrative discretion to regulate free
expression, and in other regards as well is a vague and over.-
broad encroachment on First Amendment rights. Addi
tionally, the injunction is unconstitutionally vague, in vio
lation of the First and Fourteenth Amendments.
Because the injunction is void, reversal of petitioners’
convictions must follow, for four independent reasons:
A. Review by this Court of petitioners’ First and Four
teenth Amendment objections to the injunctive order is
required because the refusal of the Alabama Supreme Court
to entertain those objections does not rest on an adequate
and independent state ground. Alabama courts, as a nrac-
tical matter, exercise discretion to heaxAhe.kind of .federal
claimmsallowed bv the c.ouxLhelow. Moreover, petitioners
were rfairly entitled to believe that they could raise their
federalclaim defensively in the contempt proceeding.
B. The injunctive order against petitioners prohibited
only unlawful and unpermitted parades and demonstrations.
In the absence of any indication of contrary construction
placed upon it by the courts below, this order must be read
consistently with the Supremacy Clause as prohibiting
only unpermitted parades and demonstrations.for which-
_the State of A labama could constitutionally demand a per
mit.| Since petitioners’ permitless activxti65Twere at worst
in violation of a constitutionally invalid permit ordinance,
29
there is no evidence within the standard of Thompson v.
Louisville, 362 U.S. 199, to support a finding that they
acted unlawfully within the meaning of the injunction.
C. If the injunctive order is construed, contrary to its
apparent meaning, to prohibit unpermitted parades and
demonstrations protected by the federal Constitution, peti
tioners’ convictions must nevertheless be reversed for two
reasons. First, such a reading of the order .deprives them
of the fair warning demanded by the Due Process Clause. ̂
Second, there is no evidence within the standard of Thomp
son v. Louisville, supra, to support a finding of contumelious
intent where what is shown is that petitioners complied
with the apparent meaning of the order and relied upon
clearly controlling decisions of this Court in thinking their
demonstrations lawful.
D. Assuming, arguendo, contrary to arguments II (A ),
(B) and (C) above, that petitioners did willfully violate
the injunction after adequate notice, and that regular and
consistently applied Alabama procedures forbid testing
the invalidity of an injunction in a contempt proceeding,
these procedures may not constitutionally be applied to
punish petitioners for disobeying this federally unconstitu
tional injunction. The doctrine ordinarily associated with
United States v. United Mine Workers, 330 tT.I§7258, should"
n ot be'' exf ended to tfiehm iF’oI its logic so as to invade
f hn^rdvincF~or*Jbirst AmendmentTreedoms, especially In
a case, such as th is/InvoM ng”a
--TTgfenilv'uncom^ issued "ex purTU,
effecting wholesale, repression of speech during the onb/
time"yyhrm̂ t-<*j*Hdd -d ^ of social
To extend Mine Workers into the area of free expression
would sanction an intolerable prior restraint. This is espe
cially true here, where the incorporation of the Birmingham
parade ordinance into the injunction renders city admin
30
istrators the censors of the streets. The legitimate concern
of preserving respect for the courts does not countenance
destruction of individual rights through judicial fiat. John
son v. Virgina, 373 U.S. 61; Hamilton v. Alabama, 376
U.S. 650.
III.
Petitioners Martin King, Abernathy, Walker and Shut-
tlesworth were unconstitutionally punished for criminal
contempt for publishing a press release criticizing the in
junction and Alabama officials. Issuance of the press re
lease was one of the several acts of contempt charged and
thus part of the basis for the trial court’s general ad
judication of guilt. As this charge is constitutionally vul
nerable their convictions must be reversed. Thomas v.
Collins, 323 U.S. 516, 529; Stromberg v. California, 283
U.S. 359, 367-368; Williams v. North Carolina, 317 U.S.
287; Terminiello v. Chicago, 337 U.S. 1.
The press release criticizing the injunction as an “un
just, undemocratic and unconstitutional misuse of the
legal process” and criticizing Alabama officials for pre
serving segregation was constitutionally protected speech.
Garrison v. Louisiana, 379 U.S. 64; New York Times Co.
v. Sullivan, 379 U.S. 254; Wood v. Georgia, 370 U.S. 375;
Bridges v. California, 314 U.S. 252; PenneJcamp v. Florida,
328 U.S. 331; Craig v. Harney, 331 U.S. 367.
IV.
Petitioners J. W. Hayes and T. L. Fisher were denied
due process because there was no evidence of an essential
element of criminal contempt. Thompson v. Louisville,
362 U.S. 199; Fields v. City of Fairfield, 375 U.S. 248.
Hayes and Fisher were not parties to the injunction suit
or served with the order before their alleged contemptuous
31
conduct. To prove contempt under Alabama law it is
therefore necessary to establish that they had notice of
the injunction’s restraints and were familiar with its pro
visions. In re Willis, 242 Ala. 284, 5 So.2d 716, 721. There
was no evidence that Hayes and Fisher were advised of
the terms of the injunction or that it applied to their
conduct.
ARGUMENT
I.
The Petitioners Were Denied Due Process o f Law
and the Equal Protection of the Laws by the Circuit
Court’s Exclusion of Their Proof That the Birmingham
Parade Permit Ordinance, Which the Court’ s Injunction
Required Them to Obey, Was Discriminatorily Applied
to Refuse Them Permits by Reason of Their Race and
Their Advocacy of Civil Rights.
Without regard to the other issues presented here, peti
tioners’ convictions of contempt for violating an injunc
tion against parading without a permit must be reversed
on the ground that they were denied an opportunity to
offer proof in support of a federal constitutional defense
to the charge. The defense offered, grounded on this
Court’s decision in Tick Wo v. Hopkins, 118 U.S. 356, was
that petitioners were prevented from complying with the
permit requirement because of discriminatory adminisfra-.
tion of the permit law. They contended that Eugene “Bull”
"Connor, the Birmingham Public Safety Commissioner who
obtained the injunction forbidding their demonstrations
without permits, alsij.-disc.rimmatflnly.jie.nie.dih
to conduct demonstrations.
32
The essence of the contempt charge against petitioners
was that they violated the Circuit Court’s injunction by
participating in parades or demonstrations without first
having obtained permits under section 1159 of the General
City Code of Birmingham.18 The relevant portions of the
injunction restrained petitioners from (a) engaging in
parades “without a permit,” (b) conspiring to engage in
“unlawful” parades, and (c) violating the “ ordinances
of the City.” In terms, the order restrained:
. . . engaging in, sponsoring, inciting or encouraging
mass street parades or mass processm nsorlike dem-
onstralions 'wUK<nil"crp erm i,\' ‘ r c o n s^
in unlawful street parades, unlawful processions, un
lawful demonstrations . . . or from violating the ordi
nances of the City of Birmingham . . . or from doing
any acts designed to consummate conspiracies to en
gage in said unlawful acts of parading, demon
strating . . . (B. 38; emphasis added).
It is plain that, as the City cast its pleadings r
both courts below viewed the issue, the permit requirement
en f orceTTyvHl’iF'TnTimc^
faommgTljETali^ the City
"CoSeTan?"£EaFTEe~on!yT̂ unlawT^
after charged as contempt was a failure to obtain such a
permit before participating in parades or demonstrations.
18 Four of the petitioners were also charged with contempt because of
allegedly derogatory remarks about the Circuit Court and its injunction
in a press release. This separate issue is treated in part III of the Argu
ment below, pp. 71 to 75. As the petitioners were found guilty gen
erally under an accusation that charged both parading without a permit
and issuing of the press release, and a single penalty was imposed, the
conviction must be reversed if either of the charges is constitutionally
vulnerable. Thomas v. Collins, 323 U.S. 516, 529; Stromberg v. California,
283 U.S. 359, 367-368; Williams v. North Carolina, 317 U.S. 287, 291-293.
“ The judgment therefore must be affirmed as to both [charges] or as to
neither.” Thomas v. Collins, supra, 323 U.S. at 529.
33
The injunction was not an unconditional order against
marches, but an order against marching without a permit.
The court in its injunctive decree left the decision whether
to allow marches to the licensing officials, and thus ex
pressly committed the legality of petitioners’ conduct to
the licensors’ discretion.
Subsequently adjudicating petitioners in contempt, the
Circuit Court stated their charged contemptous conduct
to be “violation of the said injunctive order by the defen
dants’ participating in and conducting certain alleged
parades in violation of an ordinance of the City . . . which
prohibits parading without a permit” (R. 420). And the
Alabama Supreme Court affirmed the contempt convictions
on the finding that petitioners “did engage in and incite
others to engage in mass street parades and neither peti
tioners nor anyone else had obtained a permit to parade
on the streets of Birmingham” (R. 438). There was no
claim or proof that petitioners violated any of the other
portions of the injunction such as those restraining tres
passes, boycotts, picketing or demonstrations in churches.
In defense against the contempt charge, petitioners there
fore offered to prove that they could not have obtained
a permit as required by the injunction because of the dis
criminatory administration of the permit law.19 They
claimed that an established pattern of discriminatory de
nials of permits to them, and the discriminatory enforce
ment against them of unusual and frustrating procedural
requirements in applying for permits, made their applica
tion futile and converted the injunction into a racial trap.
But the Circuit Court entirely foreclosed this issue at the
15 Petitioners averred that they “were arbitrarily unlawfully and un
constitutionally denied a permit to parade and demonstrate, and picket
against racial segregation, in a peaceful manner, on the streets of the
City of Birmingham, Alabama in violation of . . . the due process and
equal protection clauses of the Fourteenth Amendment . . (R. 137).
34
contempt trial, holding that “the only question was did
they or did they not have a permit” (R. 177).
Efforts by petitioners to establish the discriminatory
administration of the permit law were consistently thwarted
by rulings of the trial judge excluding their evidence.
Petitioners offered testimony that when Mrs. Hendricks,
a member of the A.C.M.H.E., asked City Commissioner
Eugene “Bull” Connor about “getting a permit for picket
ing, parading, demonstrating” (R. 354), Connor imme
diately rejected the request, saying:
“No, you will not get a permit in Birmingham, Alabama
to picket. I will picket you over to the City Jail”
(R. 355).
According to this testimony, Connor rejected the request
without further inquiry so soon as he was confronted with
a representative of the Alabama Christian Movement For
Human Rights; he did not seek information as to the time
and place of the desired demonstrations, the proposed
number of participants, or any other information relevant
to traffic or similar considerations.20
The trial court granted the City’s motion to exclude
Mrs. Hendricks’ testimony on the ground that “ the state
ment of Mr. Connor would [not] be binding on the Com
mission” (R. 355). But the Court would not permit peti
tioners’ offer of proof that the City Commission never is
sued parade permits and that there was an established
practice (not reflected in any published laws, rules or regu
20 Petitioners showed that when Rev. Shuttleswbrth wired Commissioner
Connor requesting a permit (R. 416), Connor promptly wired back
(R. 415) asserting in the same message that he had no authority to issue
permits and that Shuttlesworth could not picket: “ I insist that you and
your people do not start any picketing on the streets in Birmingham
Alabama” (R. 415).
35
lations) that parade permits were issued by the City Clerk
on request of the traffic bureau of the police department
(R. 284-287).
It is clear that Connor, as Commissioner of Public
Safety, was by statute in charge of the Birmingham police
department (Code of Ala., Recompiled 1958, Title 62,
4632).21 However the trial court precluded any inquiry
into the established practice in administration of the parade
permit ordinance or the part played in it by the respective
city agencies (R. 283-287). The court also sustained
objections to all questions asked of Connor relating to his
role, vis-a-vis the Commission, in issuing permits (R. 289-
290).
The trial court, further, cut off inquiry about the type
of parades for which permits were issued (R. 176). When
petitioners’ counsel stated that his purpose was to “ find
out . . . whether the law is being equally applied or whether
it is being applied in a discriminatory manner against
certain groups” (R. 177), the court said: “The Court has
already passed on that question with its injunction” (R.
177).
Petitioners submit it has been clear since the Court’s
decision in Tick Wo v. Hopkins, 118 U.S. 356, that proof
of racial discrimination in denying applications under a
law requiring permits is a federal defense to a prosecution
21 Connor was one of three commissioners under the commission form
o f government in effect at that time. The distribution of powers among
the three city commissioners is described in Code of Ala. Tit. 62, $632.
The three departments in the city government, each headed by a com
missioner, were the Department of general administration, finances end
accounts, the Department and the jDepartment of
puBUc s a f ety. “ Section H32 provides: “ Department of 'puBfiWsafety;
which shall have supervision over the fire and police departments and all
things connected therewith, and over th§ public health and sanitation and
all things pertaining thereto.” In addition to the administrative powers,
o f the individual commissioners, the commission sitting as a body had
legislative powers. Code o f Ala. Tit. 62, $628.
36
for acting without such a permit. The convictions in the
Yick Wo case—for conducting laundry businesses in wooden
buildings without permits—were reversed not only be
cause of the potential of the permit ordinances for dis
criminatory administration, but because of an actual show
ing of racial discrimination in their enforcement. 118 U.S.
at 373. Accord: Niemoiko v. Maryland, 340 U.S. 268;
Fowler v. Rhode Island, 345 U.S. 67. Of course this equal
protection principle applies equally to street demonstra
tions. This Court so held in Cox v. Louisiana, 379 U.S. 536,
556-557. And, in this regard at least, there is no basis to
distinguish an injunction that requires a permit from a
law that requires a permit. Whatever the origin of the
permit requirement, it surely violates the Equal Protection
clause for a state official, administering the permit scheme,
to discriminate on grounds of race or for the purpose of
repressing unpopular egalitarian views, and by denying
permits arbitrarily to make compliance with the permit
requirement impossible. One who is thus discriminated
against and arbitrarily denied a permit may not consti
tutionally be convicted for acting without a permit.
f “ [T]he First and Fourteenth Amendments require that
/ /T f lE e streetsUTaTown are open to some views, they must
y Be^p^‘To~a!TW~TTô ~vTTLouisvarm7*3?9 I'.S. §35, 57$, oSO
(Mr. Justice Black, concurring). See also the concurring
opinion of Mr. Justice Clark, 379 U.S. 585, at 589.
Petitioners sought to show that under Bull Connor’s
regime the streets of Birmingham were closed to civil
rights advocates although they were open to others. Cox
v. Louisiana, supra; cf. Hague v. C.I.O., 307 U.S. 496, 516,
518. Just as in Yick Wo, petitioners would have estab
lished a federal constitutional defense to the charge of
contempt if they had been allowed to show that the permits
which they were enjoined to obtain could not be obtained
37
by reason of racially discriminatory administration of the
permit law.
Obviously, this effort to show racial discrimination
by the Birmingham authorities was not so implausible on
its face that the Circuit Court could permissibly refuse
to hear evidence on the issue. That petitioners had a
substantial basis for their claim is clear from the testimony
of Mrs. Hendricks (R. 352-355), which showed Commis
sioner Connor’s unalterable opposition to demonstrations
by civil rights advocates just as plainly as the evidence in
Lombard v. Louisiana, 373 U.S. 267, showed official hostility
to restaurant desegregation. Indeed, the Alabama Court
of Appeals has held that section 1159 was discriminatorily
applied and reversed the conviction of petitioner Shuttles-
worth under that section in a case involving the same
Good Friday march involved here. Shuttlesworth, v. City
of Birmingham, 43 Ala. App. 68, 180 So. 2d 114, 136-139
(cert, granted by Ala. Sup. Ct. Jan. 20, 1966). Judge
Cates said that the “pattern of enforcement exhibits a
discrimination within the rule of Yich Wo v. Hopkins,
supra” (180 So. 2d at 139). And there is a substantial
body of judicially noticeable material pointing in the same
direction as the evidence of record.22 The United States
22 Racial segregation was enforced by law in almost every aspect o f life
in Birmingham. City ordinances requiring segregation in restaurants,
places of entertainment and sanitation facilities appear in the Appendix,
infra, p. 3a. Alabama, of course had many segregation laws of state
wide application; forty-four sections of the code “ dedicated to the main
tenance of segregation” were still on the books in 1966 and are collected
in an opinion by Circuit Judge Rives. United States v. Alabama, 252
F. Supp. 95, 101 (M.D. Ala.). In 1963 school segregation in Bir
mingham was total {1963 Report of the U.S. Commission on Civil
Rights, p. 65) ; Governor George C. Wallace carried out his 1962 campaign
pledge “ to stand in the schoolhouse door” to prevent the admission o f
Negroes to the University of Alabama (Congress and the Nation 1945-
1964, Congressional Quarterly Service, 1965, p. 1601); and despite long
standing lawsuits against voting discrimination only 11.7% o f Birming
ham’s voting age Negroes were registered to vote in 1962. (1963 Report
of the U.S. Commission on Civil Sights, page ) — ————---- ————
38
Civil Eights Commission concluded in its 1963 Report
that:
The official policy in . , . Birmingham, throughout
the period covered by the Commission’s study, was
one of suppressing street demonstrations. While police
action in each arrest may not have been improper, the
total pattern of official action, as indicated by the.
public statements of city officials, was to maintain
segregation and to suppress protests. The police fol-
lowed that jx)linv,..ruid._lhev were usually supported
~~*’”̂ byTocaT prosecutors and courts. (1963 Report of the
y .S ’.TJommission on Civil Rights, Govt. Printing Office,
1963, p. 112).
It is well settled by decisions of this Court, that denial
of an opportunity to prove a federal claim is itself a denial
of the federal claim. The exclusion of evidence of racial
discrimination was held to be a denial of Fourteenth
Amendment rights in Carter v. Texas, 177 U.S. 442, 448-
449, and Coleman v. Alabama, 377 U.S. 129, 133, cases
involving the systematic exclusion of Negroes from juries.
Here as in Coleman, supra, Alabama has by exclusion of
evidence denied both a hearing on the equal protection
defense and the equal protection of the laws. In Coleman,
supra, the Alabama courts while refusing to hear evidence
on the claim, nevertheless decided on the merits that there
was insufficient evidence to prove discrimination. Simi
larly in this case the Circuit Judge excluded proof of dis
crimination but in upholding the ordinance—as an apparent
afterthought recognizing that proof of discrimination would
properly offer a defense to the charge—said that there
was an “absence of a showing of arb itrary '"^
a c t i o n ^ J l ^ H ^
Birmingham" in d enying the defendants a permit to con-
f$%s
39
duct a parade on the streets of the City of Birmingham”,
(R. 422). " ~ ..
Plainly such a holding, rendered not merely without the
slightest evidentiary support but following the exclusion
of all evidence proffered by petitioners on the issue, cannot
survive constitutional scrutiny. I f petitioners were en
titled to a hearing on the contempt charge before being
convicted— as they surely were, Re Green, 369 U.S. 689-—
they were entitled to present evidence at the hearing to
establish a federal constitutional defense to the charge.
They were denied that opportunity to defend by the rejec
tion of their proof that they were discriminatorily refused
permits, and accordingly, they were convicted in violation
both of due process and the equal protection of the laws.
Petitioners submit this case presents an ugly and ex
treme instance of abuse of the state judicial process to
deny Negro citizens the fair and equal treatment which
the Fourteenth Amendment guarantees. The record facts
are plain. Birmingham city authorities who enacted the
permit ordinance and controlled the right to use the city’s
streets under the permit power reserved by that ordinance
went to a state court and obtained an ex parte injunctive
order which subjected civil rights demonstrators who did
not obtain a permit from them to the sanctions of crim
inal contempt. The state court issued that order, in effect
committing civil rights demonstrators into the unrestricted
power of Birmingham police officials and adding the judi
cial weapon of prior restraint to the arsenal of repressive
machinery—including arrest and prosecution under the
penal provisions of the permit law—by which those offi
cials enforced monopolistic authority over political ex
pression in the segregated city. Then the very court which
had issued its process to assist the city officials and to
reinforce their licensing power imposed its contempt sane-
40
tions on the petitioners while refusing to hear evidence
establishing that the officials who were invoking its aid
were engaging in racial discrimination. Eugene “Bull”
Connor thus effectively built and sprung a trap for peti
tioners by arbitrarily denying them permits, arresting
them for marching without permits, obtaining an ex parte
injunction against them, and having them convicted of
criminal contempt at a hearing where, as at all prior stages,
he was immunized from inquiry into his administration
of the permit power (R. 288-291). The Circuit Court, itself
used as an instrument of Connor’s abusive treatment of
petitioners, refused to hear evidence of that abuse. The
Fourteenth Amendment will not support such a proceed
ing, and requires that the convictions be reversed.
II.
The Petitioners Were Unconstitutionally Convicted
of Contempt For Engaging in Marches Without a
Permit.
Introduction: The Unconstitutionally Of The Injunction
And The Parade Permit Ordinance
At the outset it should be noted that if the Court agrees
with the argument made in part I above, the convictions
may be reversed on that ground alone and it would not be
necessary to decide any of the questions discussed in this
portion of the brief. These arguments begin with the com
mon premise, discussed immediately below, that the, injunc
tive order and the parade permit law, which the injunction
enforced, violate the First and Fourteenth Amendments.
Arguments for reversal on four distinct grounds follow"^
First, it is urged that a reversal must follow directly from
this Court’s determination that the injunction is invalid,
because no adequate state ground supports the refusal of
41
the court below to decide the issue of validity of the in
junction. Second, it is urged that there was no evidence
that petitioners violated the injunction’s ban on unlawful
parades, because the marches were not u n l a w f u l in view of
the federal conglltiiliQiu- Third, we argue that since the
injunction appeared to permit federally protected activity,
a conviction f or such activity is void for want of fair notice,
particularly where there was no evidence of the essential
element of willfulness required to support the criminal con
tempt convictions. Fourth, it is urged that it is unconstitu
tional to punish petitioners for disobedience of this injunc
tion which broadly and vaguely overreaches free expression
of politicajTideas. j
As was indicated above in description of the injunction’s
terms (supra, pp. 32-33), the Circuit Court’s injunctive
order enforces section 1159 of the Birmingham City Code.
Section 1159 is unconstitutional under the doctrine, set forth
in a host of this Court’s decisions, tha.tJlcensing laws which
grant unfettered discretion to regulate free expression vim
late the Fourteenth Amendment. Coxy. Louisiana, 379 U.S.
536, 553-558; 'Lovell v. Griffin, 303 U.S. 444, 447, 451; Hague
v. C.I.O., 307 U.S. 496, 516; Schneider v. State, 308 U.S. 147,
157,163-164; Cantwell v. Connecticut. 310 U.S. 296, 305-307;
Largent v. Texas, 318 U.S. 418, 422; Marsh v. Alabama, 326
U.S. 501, 504; Tucker v. Texas, 326 U.S. 517, 519-520; Saia
v. New York, 334 U.S. 558, 559-560; Kunz v. New York, 340
U.S. 290, 294; Niemotko v. Maryland, 340 U.S. 268, 271-272;
Staub v. Baxley, 355 U.S. 313, 322-325; Jones v. Opelika,
316 U.S. 584, 600-603 (Stone, C.J. Dissenting), 611, 615
(Murphy, J. Dissenting), dissenting opinions adopted per
curiam on rehearing, 319 U.S. 103; Cf. Shuttlesworth v.
Birmingham, 382 U.S. 87, 90; Freedman v. Maryland, 380
U.S. 51, 56. ------ --
42
That the ordinance in this case grants an impermissibly
broad discretion, is hardly debatable. In a colloquy during
the trial below the judge remarked with some understate
ment that “ the ordinance itself . . . allows certain discretion
in the City Commission” (ft. 284). Section 1159 in terms
requires that a permit application set forth, inter alia, the
“purpse for which [a parade, procession or other public
demonstration] . . . is to be held or had” and directs the
licensing authorities to grant a written permit unless in
their “ judgment the -public welfare, peace, safety, health,
decency, good order, morals or convenience require that it
be refused.” (emphasis added.)
The ordinance thus allows broad power to suppress un
popular demonstrations in advance if the licensing author
ities believe that it is generally desirable that they be sup
pressed. The ordinance contains neither an absolute pro
hibition on all such demonstrations, nor a general authoriza
tion for demonstrations subject only to normal traffic con
trols. There are no provisions in the ordinance that con
fine the licensing officials to narrow and proper criteria
relating to the duration, time and place of demonstrations
or to the regulation of traffic in public places; and there is
nothing in the decisions below which places a confining
gloss on the ordinance through construction. By commit
ting to the licensing officials the authority to decide, in view
of the purpose of a demonstration, whether the “public
welfare,” etc. will be served by the demonstration, this ordi
nance empowers the Commissioners to outlaw any pro
test activity they disapprove. The discretion granted by
section 1159 is similar to that conferred by the law invali
dated in Staub v. Baxley, 355 U.S. 313, 314 n.l, which di
rected the licensing body to consider “ the character of the
applicant, the nature of the business of the organization . . .,
and its effects upon the general welfare of citizens of the
43
City of Baxley.” (Emphasis added.) Of course, in Birming
ham, the Commissioners may consider, in addition to “ the
public welfare,” dictates of decency, good order, morals,
etc —a congeries of concerns which comes close to exhaust
ing the capacity of human sensitivity to fear for the undis
turbed tranquility of Birmingham life.
Section 1159 is unconstitutional on its face under this
Court’s decision in Cox v. Louisiana, 379 U.S. 536, 553-558,
and cases cited. Cox invalidated convictions based upon a
Louisiana law proscribing “ Obstructing Public Passages”
- .because,_ as the discretion of city
tomcials. the situation was the same as if the statute itself^
'expresily provided that there could only be peaceful pa-
« .yades or demonstrations in the unbridled dIscreHon~ofTEe~*
local officiap’,^^79*Tr.S*. at 557). 'The decision thus applied
'^TtntBeTfcensmgTif street demonstrations the stringent stand
ards of the Court’s prior decisions condemning various
other types of speech-licensing laws for over-broad discre
tion :
a
A long line of cases in this Court makes it clear that a
State or municipality cannot “require all who wish _to
disseminate ideas to present them first to police au-
thqrities-3^*ffieir consideration and approval, with a
IJmcrejEIon in the police to say some ideas may, while
others may not, be . . . disseminate [d] . . .” Schneider
v. State, [308 U.S. 147, 164.] See Lovell v. Griffin, [303
U.S. 444]; Hague v. C.I.O., [307 U.S. 496]; Largent v.
Texas, [318 U.S. 418] ; Saia v. New York, [334 U.S.
558]; Niemotko v. Maryland, [340 U.S. 268]; Runs v.
New York, [340 U.S. 290].
This Court has recognized that the lodging of such
broad discretion in a public official allows him to deter
mine which expressions of view will be permitted and
which will not. This thus sanctions a device for the
44
suppression of the communication of ideas and permits
the official to act as a censor. See Saia v. New York,
supra, at 562. Also inherent in such a system allowing
parades or meetings only with the 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.
See Niemotko v. Maryland, supra, at 272, 284; cf. Yick
Wo v. Hopkins, 118 U.S. 356. It is clearly unconstitu
tional to enable a public official to determine which ex
pressions of view will be permitted and which will not
or to engage in invidious discrimination among persons
or groups . . . by use of a statute providing a system of
broad discretionary licensing power . . . (379 U.S. at
557).
The Fourteenth Amendment requires that there be “nar
rowly drawn, reasonable and definite standards for the
officials to follow.” Niemotko v. Maryland, supra, 340 U.S.
at 271.
The Circuit Court below relied upon Cox v. Neiv Hamp
shire, 312 U.S. 569, to sustain section 1159 (R. 422). The
reliance is visibly ill-founded, for the New Hampshire
statute involved in Cox—like the parallel provision involved
in Poulos v. New Hampshire, 345 U.S. 395—was construed
by the state courts to limit the licensing officials’ authority
to “considerations of time, place and manner” in order to
“prevent confusion by overlapping parades or processions.
to secure convenient use of the streets by other travelers,
and to minimize the risk of disorder” (312 U.S. at 575-576).
In Cox v. New Hampshire, there were no “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.’’ ̂Kunz v. New York,
340 U.S. 290, 293-294. We need not labor the obvious dis
45
tinction which this Court has many times drawn,
cantly, the Alabama Supreme Court did not-Aollaw^-the
Circuit Court in thinking that Cox v. New
IS r iie T B m m ^
tioners’ convictions on groundiUis]lQ£f±S^^
which avoided passing on the CQn&tltntixmal validity of this
IpalpsrBlymnvulid ordinance^!
The censor’s discretion allowed by the vague and over
broad permit standards of section 1159 is the most obvious
but not the only vice of that section. The provision makes
it a crime to hold, organize or participate in an unpermitted
“parade or procession or other public demonstration on the,
streets or other public ways of the city A’ This definition of
proscribed activity, of the sort of activity for which a per
mit must be obtained, is itself too indefinite to meet the
“ strict” “ standards of permissible statutory-vagueness . . .
in the area of free expression.” N.A.A.C.P. v. Button, 371
U.8. 415, 432. Like the prohibition of loitering and
picketing condemned in Thornhill v. Alabama, 310 U.S. 88,
a penal prohibition of parades, processions or other public
demonstrations overreaches “nearly every practicable, ef
fective means” of publicizing the grievances of deprived
and unpopular groups. Cf. 310 U.S. at 104. “ The vague con
tours of the term [public demonstration] . . . are nowhere
delineated.” Cf. id. at 100-101. See also Carlson v. Cali
fornia, 310 U.S. 106, 111-112.
The_ application of the ordinance to activities on the
side walks--is ambiguous ̂and the failure to specify the num
ber of persons or their characteristics which convert pe-
destrians into a “parade” or “procession” makes even the
narrowest proscriptions of section 1159 unconstitutionally
indefinite. The extent of this indefiniteness is made ap
parent by the Alabama Court of Appeals’ reversal of the
criminal conviction of Rev. Shuttlesworth for violating sec-
46
tion 1159 by participating in the same Good Friday walk
that is involved in this case. That court held that evidence
the Good Friday group walked on the sidewalks, obeying
traffic regulations and not going on the roadway failed “ to
.show a procession which would require, under the terms of
section 1159, the getting of"a permit.” Shuttlesworth, v.
City of Birmingham, 43 Ala. App. 68, 180 So.2d 114, 139
(cert. grantedn3y'Ala. 'Strpr4"itrTlanr-2(>y4966’)t ‘
Indeed, in that case section 1159 was held unconstitu
tional ̂by the Alabama Court of Appeals on all the grounds
urged by petitioners here. Shuttlesworth, v. City oJTBTrmmg-
Ala. App. 68, 180 So.2d 114. Judge Cates invali
dated the convictions of the Good Friday marchers on nu
merous grounds, .rulliyg that section 1159 imposed an in-
the streets; that the
or granting
vidloTjfs prior restrai
law lacked aScertainalJfe.^tandajd.
’ plied
that the law was^dii
contrary ifctns,' lIKTLSi 356,;.and
that there was insufficient evidence that the Good Friday
walk on the sidewalks violated section 1159
The injunctive order upon which these petitioners’ con
tempt convictions are based carries with it all of the am
biguity and overbreadth of section 1159 because in terms
h ord ers obedience to that ordinance. It is additionally
vague insofar as it enjoins “conspiring to engage in un
lawful street parades, unlawful processions, unlawful dem
onstrations . . . or other like unlawful conduct or from vio
lating the ordinances of the City of Birmingham and the
Statutes of the State of Alabama . . .” (R.38). The injunc
tion thus incorporates by reference the whole body of city,
state and federal law which might govern a parade. The
benchmark for testing conduct permitted by the injunction
is essentially the constitutional boundary itself. But an in
junction making the constitutional limit of state authority
47
the line of criminality gives “no warning as to what may
fairly be deemed to be within its compass” Garner v. Loui
siana, 368 U.S. 157, 185, 207 (Mr. Justice Harlan, con
curring) ; see Note, 109 U.Pa.L.Rev. 67, 76 (1960). Such a
vague and general command not to act unlawfully, is
readily susceptible of discriminatory enforcement, cf.
N.A.A.C.P. v. Button, 371 U.S. 415, 433; Thornhill v. Ala
bama, 310 U.S. 88, 97-98, and by its broad and repressive
effect coerces the citizen to surrender his rights to engage
in protected protests through fear of punishment for con
tempt. Dombrowski v. Pfister, 380 U.S. 479, 494; Thornhill
v. Alabama, 310 U.S. 88, 97-98; Smith v. California, 361
U.S. 147, 150-151; cf. Wood v. Georgia, 370 U.S. 375, 391.
Indeed the broad command not to act “unlawfully” in
parades or demonstrations presents basically the same
question involved in prosecution of demonstrators under
generalized charges of breach of the peace, condemned in
Cantwell v. Connecticut. 310 U.S. 296; Edwards v. South
Carolina, 372 U.S. 229; Fields v. South Carolina, 375 U.S.
44; Henry v. Rock Hill, 376 U.S. 776; and Cox v. Louisiana,
379 U.S. 536, 544-552; cf. Term iniellogTclm agof^nj.S .
1; Ashton v. Kentucky, 384 U.S. 195. That this vague pro
hibition comes from a court order, rather than from the
Hegislhtiffepdoes not improve its constitutional credentials.
Thomas v. Collins, 323 U.S. 516; Cafeteria Employees’
Union v. Angelas. 320 U.S. 293; Chauffeurs Union v. Newell,
356 U.S. 341. Rather, it aggravates the vice of vagueness
by embodying the vague prohibition of the penal law in
the sort of prior restraint which, since Near v. Minnesota,
283 U.S. 697, “ comes to this Court bearing a heavy pre
sumption against its constitutional validity.” Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 70. See part 11(D)
below.
48
Section 1159 and the injunction enforcing it are, there
fore, unconstitutional and obviously so. Had petitioners
been charged criminally with violation of the ordinance,
its unconstitutionality would have been available as a de
fense. In considering such discretionary licensing laws,
this Court has “uniformly held that the failure to apply
for a license under an ordinance which on its face violates
the Constitution does not preclude review in this Court of
a judgment of conviction under such an ordinance.” Staub
v. Baxley, 355 U.S. 313, 319. “As the ordinance is void on
its face, it was not necessary . . . to seek a permit under
it.” Lovell v. Griffin, 303 U.S. 444, 452; see Thornhill v.
Alabama, 310 U.S. 88, 97; Freedman v. Maryland, 380 U.S.
51, 56. Nor has it been thought a precondition of review
that facially unconstitutional licensing laws be challenged
in court before they are challenged by violation. As the
court said in Cantwell v. Connecticut̂ JilO U.S. 296, 306,
“ the availability of a, judicial remedy for abuses in the
system of licensing still leaves that system one oT~previbus
restraint which, in the field of free s p e e e E ^ X ^ ^ s T w e
have held inadmissible.” The question”'heT(T~presented is
whether the City of Birmingham, by increasing the efficacy
of its prior restraint through the device an ex parte in
junctive order that compelled obedience to the void ordi
nance, was successful thereby in depriving petitioners of
their otherwise available constitutional defense. We sub-
mit that it was not, and that the unconstitutionalitv of sec
tion 1159 and the injunction compel reversal of petitioners’
contempt convictions, foFeacE^FffieToTlowing reasons.
49
A. The unconstitutionality o f section 1159 and the injunction
en forcing it may properly be considered by this Court on
review o f petitioners’ contem pt convictions because the
refusal o f the Alabama Suprem e Court to entertain this
federal defense is not an adequate and independent state
ground o f decision.
In reviewing state contempt convictions, this Court has
consistently held that where state procedure permits an
individual to test an injunction on the merits by engaging
in the enjoined conduct and defending against a consequent
contempt citation on the ground that the injunction is un
lawful, any federal challenge to the lawfulness of the. in-
jnnctiom.mav-^e^Mnrniiiied by this Court. Thus in Thomas
v. Collins, 323 U.S. .516, where the Texas Supreme Court,
reviewing a contempt conviction for violation of an in
junctive order, ruled on the federal constitutional objec
tions to the order and to a statute on which it wTas based,
this Court entertained an appeal on the federal questions,
323 U.S. at 524, n. 7, and reversed Thomas’ conviction.
Similarly, the court decided the federal issues underlying
a contempt commitment in Ex Parte George, 371 U.S. 72.
73, noting that under Texas law “ one may not be punished
for contempt for violating a tumporhl^^
_mattgr.’ ’ See also Donovan v, Dallas. 377 TT.S. 408. Thus,
"plainly, if federaCchallenges to injunctive process are ap
propriately presented for decision under state practice in
the state proceedings to punish for contempt for violation
of the process, they may be reviewed in this Court.
Prior to the decision below in the present case, Alabama
decisions permitted a variety of defenses based on the in
validity of an injunction to he raised in defense of a con
tempt charge for its violation. Never before this case had
the Alabama courts stated the rule, announced in the opin-
50
/
y / . . . .
on below, that in reviewing contempt convictions for vio
lation of an injunctive order, the only inquiry which was to
be made was whether the court issuing the injunction had
jurisdiction of the parties and was a court with equitable
power to issue iniu.ijd.lqns (K. 439).
To the contrary, in Board of Revenue of Covington
County v. Merrill, 193 Ala. 521, 68 So. 971 the Ala
bama Supreme Court reversed a conviction for dis
obedience of an injunction on the ground that the court
issuing the injunction had no jurisdiction over the subject.
matter, in view of the, insufficient allegations in the com-
plaint before it. The details of the case are illuminating.
TE^mFwaTbroiTght by a resident and taxpayer to enjoin
the Board of Revenue from constructing a courthouse.
While a temporary injunction was in effect, the Board of
Revenue violated the order by entering into a construction
contract. The Board was held in contempt, but the Su
preme Court of Alabama reviewed the contempt judgment
on certiorari and reversed. The State Supreme Court
held that the chancery court could not enioin the. Board of
Revenue from exercising its discretion to build a eourt-
house unless the jjjjj ̂ ^f-ggg^^^e^g^ained “ specIScaver-
ments of facts that amounted to fraud, corruption, or un -.
fair dealing and collusion on the part of the board of
revenue.” and that “without such specific allegations, the
chancery court was without jurisdiction” (68 So. at 979).
Accordingly, the punishment for violation of the injunction
was set aside. The court stated that the statutes provid
ing punishment for contempt:
“ . . . give the right of punishment when the party is
‘in contempt’ of a court having jurisdiction. A con
struction that would give a power of punishment in a
case where jurisdiction had not attached would not
be due process” (68 So. 978).
51
Then the court went on to make clear that its doctrine
referred to jurisdiction over the subject matter of the suit
and quoted with approval (68 So. at 978-979) the follow
ing language from an opinion in Old Dominion Telegraph
Co. v. Powers, 140 Ala. 220, 37 So. 195,197,1 Ann. Cas. 119:
“Where the court is without jurisdiction, it logically
follows that there can be no contempt in the dis
obedience of a void order. The proposition that, where
the injunction is void for want of jurisdiction in the
court, the defendant cannot be punished by contempt
proceedings for disregarding it, is supported both
on reason and authority.”
The doctrines of the Old Dominion opinion and of
Board of Revenue v. Merrill were restated and reaffirmed
in Ex Parte Connor, 240 Ala. 327, 198 So. 850, 853-854.
In Connor, the court refused a writ of prohibition to halt
a contempt prosecution, hut stated that a claim, that an
* . g t* * ^ injunction was “vague, indefinite and so uncertain as that
>5a \ ^ the respondents could not understand the same,” if true,
“might constitute a defense to a contempt proceeding^
f jAm • liu f^would^n^ constitute.. .a,. reason for granting the writj
of prohibition” (198 So. at 853).23
More recently the Alabama Supreme Court described
the scope of its review of contempt judgments in Fields
v. City of Fairfield, 273 Ala. 588, 143 So.2d 177, reversed
375 U.S. 248. In Fields, the court quoted with approval
language from a civil contempt case, Ex parte National
Ass’n for Adv. of Colored People, 265 Ala. 349, 91 So.2d
214, reversed 357 U.S. 449, where the court had said:
23 In. connected litigation, the contempt convictions of Connor’s co
defendants were reversed on the ground that their conduct was not a
willful Contempt but rather a good faith misconstruction of the injunc
tion. In re Willis, 242 Ala. 284, 5 So .2d 716.
52
“It is only where the court lacked jurisdiction of the.
proceedingf^ where~^ontihe face, .of it the., order_ dis-
"obeyed was" void, or where procedural requirements
with respect to citation for contempt and the like
were not observed, or where the act of contempt is
not sustained, that the order or judgment will be
quashed.” (Emphasis added.)
The court in Fields, 143 So.2d at 179, concluded that “ on
its face, the order disobeyed was not void.” . This concluW
luoiT w as"^ uponImTeipFess'"Folding, rejecting
the defendant’s federal constitutional argument that the
ordinance upon which the injunction was based was invalid.
The Alabama Supreme Court ruled on the federal objec
tion to the ordinance on the merits saying: “We cannot
say that it is unconstitutional on its face.” (143 So.2d at
179) .
We hasten to point out that the Fields v. City of
Fairfield opinion also contains language to the effect that
a person charged with contempt for violating an injunc
tion enforcing an invalid law “may not raise the question
of its unconstitutionality in collateral proceedings on ap
peal from” a contempt conviction, citing United States
v. United Mine Workers, 330 U.S. 258; Howat v. Kansas,
258 U.S. 181, and several New York cases (143 So.2d at
180) . However, notwithstanding this language, the Ala-
Jbama Supreme^, Court did explicitly rule on the consti
tutionality of the ordinance in Fields as we have pointed
out above. Although its opinion is ambiguous”oiTIEiFscoreT'
its decision sustaining the ordinance and injunction on
the merits while invoking the Mine Workers principle
may most plausibly be explained as a holding that consti
tutional challenges to the “ face” of an injunction or under
lying legislative authority for an injunction may be raised
in the contempt proceedings, although other constitutional
challenges mawmoL.
53
However, this may be, it is clear that, until the instant
case was decided in December, 1965, the Alabama Supreme
Court, reviewing contempt cases, engaged in some in
quiry beyond the questions whether there, was jurisdiction
over the parties and a court with equity powers. The
exact scope of that inquiry was unclear, in part because
of the use of the “jurisdictional” fiction in Board of Rev
enue v. Merrill, 193 Ala. 521, 68 So. 971. But con
sistent with prior Alabama doctrine the Alabama Supreme
Court could in the present case have reviewed the validity
of the injunction and the underlying ordinance to deter
mine whether the injunction was beyond the power of the
Court (Board, of Rer>enue of Covington County v. Merrill,
supra) or whether the injunction, or underlying ordinance,
was unconstitutional on its face (Fields v. City of Fair-
field, 273 Ala. 588, 143 So.2d 177, 179). Thus, the decision
below refusing to hear petitioners’ constitutional chal
lenges to the power of the Circuit Court and the face of its
injunctive order does not rest upon a non-federal ground
adequate to bar review of the merits here on certiorari.
This Court has found several distinct categories of as-
sertedly independent non-federal grounds of decision in
adequate to preclude its review. Where state courts
exercise discretion to consider the federal claim in a given
procedural mode, this Court may hear a federal contention
notwithstanding the state court’s refusal to do so. Williams
v. Georgia, 349 U.S. 375, 389 (discretion to consider mo
tion) ; Slmttlesworth v. Birmingham, 376 U.S. 339 (discre
tion to consider petition filed on wrong-sized paper). Simi
larly, if a state has traditionally recognized a defensive
procedure, the state may not suddenly change its procedure,
closing off an apparent channel for raising a federal defense
to the surprise and prejudice of particular defendants.
N.A.A.C.P. v. Alabama, 357 U.S. 449, 457-458; Barr v. City
54
of Columbia, 378 TJ.S. 146, 149-150. Equally clearly, state
rules, which unfairly confuse a litigant with respect to the
appropriate procedures, may not bar federal review, al
though they “may now appear in retrospect to form part
of a consistent pattern” if litigants “could not fairly be
deemed to have been apprized of [their] existence”
N.A.A.C.P. v. Alabama, 357 TJ.S. 449, 457. See Staub v.
Baxley, 355 U.S. 313, 320; Wright v. Georgia, 373 TJ.S. 284,
290-291.
Here, the manipulatability of concepts such as “ jurisdic
tional” contentions and contentions attacking the “face” of
injunctive process give the Alabama courts the practical
equivalent of discretion to hear or refuse to hear federal
claims like the petitioners’ . That same manipulatability
makes Alabama procedure in this regard unfairly obscure,
and an inadequate vehicle for presentation of federal claims
to the Alabama courts. Perhaps the present Alabama Su
preme Court opinion lays the issue at rest. Perhaps not.
But prior to this opinion Alabama law either allowed the,
mode of federal challenge employed by these pelitioners
v/ / (and, indeed^recognized by the Circuit Court in their case),
™77P7TspPhii7RlH ̂ as a muddle conceal-
T 5 g~ ^ a res ! It~17~notable that the Alabama Supreme
— Court cites no Alabama cases to support its decision
refusing to rule on the constitutionality of the injunction.
Indeed, it does not even cite its recent decision in Fields v.
Fairfield, supra, a circumstance strongly supporting the
petitioners’ view of the inconsistency between that and the
present decision. Nor has the Alabama Supreme Court
ever expressly repudiated or over-ruled its decision in
Board of Revenue of Covington County v. Merrill, 193 Ala.
521, 68 So. 971.24
24 Board of Revenue, etc. v. Merrill, supra, was cited with approval in
McCollum v. Birmingham Post Co., 259 Ala. 88, 65 So.2d 689, 696 (1953)
on rehearing; Ex parte White, 245 Ala. 212, 16 So.2d 500 (1944); and
E x parte Wheeler, 231 Ala. 356, 165 So. 74 (1936).
55
Petitioners were therefore fairly entitled to believe on
the basis of the Alabama precedents, that they might liti
gate the validity of the injunction in the contempt proceed
ings. Their claim that the injunction infringed First
Amendment freedoms, and invaded an area entirely out
side the competence of the Circuit Court, was a “ jurisdic
tional” defense in the sense in which Merrill used the term.
Their attack presented a challenge to the injunction “ on
its face” in the sense in which such an attack was made
and entertained in Fields v. Fairfield. For these reasons,
petitioners’ federal objections to the injunctive order as a .
plain First Amendment violation are properly brought
here. As this Court has repeated on several occasions,
“Novelty in procedural requirements cannot be permitted
to thwart review in this Court applied for by those who,
in justified reliance upon prior decisions, seek vindication
in state courts of their federal constitutional rights.”
N.A.A.C.P. v. Alabama, 357 U.S. 449, 457-458; N.A.A.C.P.
v. Alabama, 377 U.S. 288, 301.
B. The convictions denied petitioners due process o f law be
cause there was no evidence that petitioners participated
in a forb idden “ unlawful” parade or demonstration.
A conviction based on no evidence of guilt denies due
process of law in violation of the Fourteenth Amendment.
Thompson v. Louisville, 362 U.S. 199; Fields v. City of
Fairfield, 375 U.S. 248. See also Garner v. Louisiana, 368
U.S. 157; Taylor v. Louisiana, 370 U.S. 154; Barr v. City
of Columbia, 378 U.S. 146; Shuttlesworth v. Birmingham,
382 U.S. 87, 93-95. The inquiry in contempt eases (Fields
v. City of Fairfield, supra), as in others, is to ascertain
whether there is any evidence of the elements of criminality.
In this case the essence of the restraint put on petitioners
was that they not engage unlawfully in parades, proces
sions or demonstrations without a permit. Thus if the peti
tioners’ conduct was not unlawful because it was federally
56
protected it was not in violation of the injunction. There
is confirmation of the fact that the injunction was intended
to incorporate the federal constitutional standard from a
variety of sources.
The injunction, which in terms prohibits “mass street
parades or mass processions or like demonstrations with
out a permit” also uses the word “unlawful” repeatedly,
restraining inter alia:
“ . . . conspiring to engage in unlawful street parades,
unlawful processions, unlawful demonstrations, un
lawful boycotts, unlawful trespasses, and unlawful
picketing or other like unlawful conduct or from vio
lating the ordinances of the City of Birmingham and
the Statutes of the State of Alabama . . . ” (emphasis
added) (R.38).
And, as we have demonstrated in point I above, this injunc
tive order plainly conceived parading “without a permit”
and parading “unlawfully” as synonymous and interchange
able phrases: the only unlawfulness contemplated was
parading without a permit, and parading without a permit
issued under a statute valid within the Constitution.
This reading of the order is confirmed by the fact that
the circuit judge deemed it necessary to uphold the validity
of the parade ordinance (citing Cox v. New Hampshire, 312
U.S. 569) to support his determination of guilt (R. 422).
He took this position in the context of his explicit under
standing that petitioners’ defense was that “ the acts for
which they are cited are not unlawful acts and that they
do not refuse to obey the lawful order of this Court, but
that the acts which they have performed were those pro
tected by the First and Fourteenth Amendments . . . ” (R.
421). Confronted with this contention, the Circuit Court
never stated or implied that its order was intended to
forbid any lawful acts or that it would not recognize a
57
defense based on the Constitution. It ruled the acts unlaw
ful by sustaining the parade ordinance.
The Alabama' Supreme Court, apprised of petitioners’
no-evidence defense (R. 22), also did not hold that the
injunction covered conduct which was “ lawful” in the fed
eral constitutional sense. It reached its result, not by find
ing the conduct unlawful, nor by construing the injunction
so as to preclude a defense that the conduct was federally
lawful, but rather by misconstruing petitioners’ brief to
-find a coiice>sLou._l.l>a; they had violated the injunction (R.
437-438). The brief (quoted in the~opinion oelow, K. 438)7
said only that after “ issuance of the injunctive order, peti
tioners and others continued their participation in these
protest demonstrations” (R. 438). There was of course no
admission of participation in prohibited “unlawful” dem
onstrations. To the contrary, the brief argued at length
that petitioners’ conduct was constitutionally protected and
that there was no evidence under the doctrine of Thompson
v. Louisville, 362 U.S. 199, to sustain a finding of guilt of
“unlawful” conduct.
If, as we have argued above, pp. 41 to 48, section 1159
was unconstitutional on its face, it could be ignorpd wifh,
impunity. Lovell v. Griffin, 303 U.S. 444; Staub v. Baxley,
355 U.S. 313. Petitioners’ conduct ignoring the void per
mit ordinance was accordingly not “ unlawful” in violation
of the injunction’s terms. The finding below that petitioners
violated the injunction, which restrained them from unlaw
fully parading without a permit, is therefore wholly un
supported by the evidence since that evidence showed only
that they demonstrated without a permit in violation of
an unlawful ordinance.
58
C. Since the injunction appears to forb id only that which is
“ unlawful” a construction which permits convictions un
der the injunction fo r engaging in federally protected
activity w ould be void fo r want o f fa ir notice and also fo r
want o f any evidence o f contum elious intent, in violation
o f due process o f law.
Even if it is assumed, contrary to the argument in Part B
above, that the courts below sub silentio construed the in
junction, as a matter of state law, to restrain conduct which
is federally protected, the convictions of these petitioners
must be reversed. The injunctive order itself is replete
with references to “unlawful” conduct as that which it
forbids. Any later-day construction of the order.which ,
permitted~pnmshment for its violation by federally pro-
Ihected. hence lawful. demonstral!onF~without a perhnf,
would fail to give fair warning'asToTKe’ comlucl prohihTte37
'TKuF!FrnfgT]3Teri3^^
did not qualify its reach would unforeseeably broaden the
scope of the order so as to punish actions which were not
prohibited when they were done. Bouie v. City of Colum
bia, 378 U.S. 347, is analogous. There a state law was given
an unexpected construction which broadened the scope of
an apparently narrow prohibition. This court held that
such an expansive construction of the law could not be
given retroactive effect.
Petitioners’ convictions have no evidentiary basis in any
event because there was not, and could not have been, any
evidence that they knowingly and willfully violated the
apparent command of the order not to demonstrate un
lawfully. There was, in. short, no evidence of contumelious
intent. Petitioners had every right to rely upon the order’s
apparent prohibition only of unlawful demonstrations, and
also upon the many plainly applicable decisions of this
Court holding similar permit laws unconstitutional. The
defendant in James v. United States, 366 U.S. 213, in a
far less graceful posture than these petitioners, was said
not to have “willfully” violated the tax laws when he acted
in reliance upon a prior decision holding his illegally got
ten income not taxable. (366 U.S. at 221-222; opinion of
the Chief Justice, in which Justices Brennan and Stewart
concurred). This view in James, recognizes as it must,
the absurdity of characterizing as willfully unlawful any
conduct coming squarely within the protection of a con
trolling decision of the Supreme Court of the United States.
No trier of fact could be permitted to find such conduct
willfully unlawful. So in the present case there was and
could be no evidence in the due-process sense of a specific
intent to do an unlawful act when there -was well-founded
cause to believe that petitioners’ acts were protected by
the First and Fourteenth Amendments.
D. On this record , petitioners may not constitutionally be
punished fo r violation o f an injunctive restraint forbidden
by the First Am endm ent and whose vagueness casts a
broadly repressive pall over protected freedom s o f ex
pression.
I f it is assumed arguendo, contrary to arguments 11(A),
(B) and (C) above, that petitioners did willfully violate
the injunction after adequate notice, and that regular and
consistently applied Alabama procedure forbids testing
the validity of an injunction in a contempt prosecution
for engaging in the enjoined conduct, thjy,,qj£jJioxi .ia,.Jire^_.
,, sented whether that Alabama procedure may constitution.-.,
ally be enforced to jranish petitioners by^the^sanctions of
criminal contempt for failure to obey the dictates of a
federally unconstitutional injunction. This question re
quires consideration of the doctrine ordinarily associated
with United States v. United Mine Workers, 330 U.S. 258,
and of its implications in the area of First Amendment
freedoms. Petitioners contend that the so-called Mine
59
60
Workers doctrine, compelling obedience in some circum
stances to temporary injunctive process even though that
process be unconstitutionally issued, has no application to
injunctions which restrain the exercise of First ASeiicb
ment rights. While petitioners would take this position in
any Mrst Amendment case, they urge that at the least
Mine ̂ Wjii±£xs..hp, recognized as inapposite on. the present
record, involving a vague and overbroad, patently uncon
stitutional state injunction, issued ex parte, commanding
discretion of administrative censors, and effecting the
wholesale repression of speech in a volatile political situa-
tion, during the only time when speech could be^effectav£_
as an instrument of social action, j
At the outset of this submission, it should be noted that
the actual result in the Mine Workers case did not depend
on the view that void judicial orders must be obeyed, even
in the limited circumstances there presented. A majority
of the Mine Workers court explicitly held the injunction
in that case valid.25 JSJevertheless, because five Justices
subscribed to the view that even void orders were enforce
able by contempt (although only two of the five thought
the Mine Workers order was void) the Mine Workers
case has generally been understood as authority for that
view. So the court below considered it, even in the very
different factual context of this litigation.
26 The contempt judgment in United States v. United Mine Workers,
330 U.S. 258, was affirmed by a 7-2 vote. The opinion o f Chief Justice
Vinson (joined by Justices Reed and Burton) held the injunction valid
and stated as an alternative ground that disobedience of non-frivoTous
invalid orders could be punished. Justices Jackson and Frankfurter con-
curred holding the contempt punishable notwithstanding the invalidity of
mALthe order. Justices Black and Douglas concurred solely on the ground
\ sVt ftfj.S'lhat the injunction was valid, without deciding whether a violation o f a
A*' .* E v.T ^void order might be punished. Justices Murphy and Rutledge dissented
on the ground that the order was invalid and that invalid orders might
not be enforced by contempt punishment.
Cl
We urge, to the contrary, that the doctrine announced
in Mine Workers should not be applied in the area of
First Amendment freedoms. The Mine Workers case and
the principal precedents for Mine Workers—United States
v. Shipp, 203 U.S. 563 and Howat v. Kansas, 258 U.S. 181
—involved no claims that injunctive orders infringed free
speech rights. No precedent of this Court or reasoning
that should receive acceptance by it supports the extension
of these cases into the realm of constitutionally free ex
pression, where they would collide violently with other
long-recognized principles upon which the highest and most
vital aspirations of our open society daily depend.
The danger of permitting enforcement of any unconsti
tutional governmental order that infringes First Amend
ment rights is immediately evident. A power to enforce
unconstitutional law in any hands is a power to govern
unconstitutionally. No elaborate analysis is required to
demonstrate that First Amendment freedoms and the
values they express may alike be destroyed if recognizedly
invalid orders infringing those freedoms are enforced by
criminal penalties. It should not be forgotten that the
only occasion for the application of the Mine Workers
doctrine is the determination that a judicial order has
been invalidly issued, and the effect of the doctrine is
precisely to legitimate its enforcement by criminal or other
sanctions notwithstanding its invalidity.
Of course, one may take the view that the unconsti-
tional restraints thus countenanced by the Mine Workers
doctrine are only slight and temporary freezes and, even
where most sensitive and cherished rights are restrained,
that the restraint is a necessary incident of the inevitably
time-consuming procedures required for reliable judicial
determination of the question whether, in fact, the rights
assertedly affected by a restraint are rights at all. But
62
this conception, even if factually sound in some circum
stances (as we shall later show it is not on the present
record), is the fit beginning1, not the end, of constitutional
analysis under the First Amendment.
This Court has frequently manifested its concern with
the effect on First Amendment rights of the procedures
by which claims of those rights are adjudicated, and it
has not hesitated to condemn procedures that involve undue
dangers, menaces or delays to the vindication of the rights.
For example, the Court has rejected an unfair allocation
of the burden of proof respecting First Amendment issues,
Speiser v. Randall, 357 IJ.S. 513; has invalidated a law
eliminating the element of scienter where free expression
was involved, Smith v. California, 361 U.S. 147; and has
imposed stricter standards of permissible statutory vague-
ness in reviewing laws touching on the First Amendment
area, Thornhill v. Alabama, 310 U.S. 88; N.A.A.C.P. v.
Button, 371 IJ.S. 415, 433. The Court has expressed grave
concern about the timipg of state procedures regulating
frq.u.Gxpression and has required that censorial restraints
imposed prior to a judicial determination be of brief
duration and that administrative licensing procedures as
sure prompt judicial review. Freedman v. Maryland, 380
U.S. 51; cf. Marcus v. Search Warrant, 367 U.S. 717, 737;
Recognizing the gravity of the broad threat posed by vague
laws susceptible of sweeping and improper application
abridging First and Fourteenth Amendment guarantees,
the Court in Dombrowski v. Pfister, 380 U.S. 479, found it
appropriate to cut short the normal process of adjudicat
ing constitutional defenses in a criminal prosecution.
Dombrowski required cessation of prosecutions under in
dictments charging violation of a vague law that over
reached free expression until the state undertook the
burden of non-criminal litigation to obtain a narrowing
construction of its statute, whose enforcement would not
63
thereafter be attended by serious incidental restraints on
constitutionally protected, speech.
Decisions such as DombrowsJci v. Pfister and Freedman
v. Maryland, demonstrate that even some compelling state
interests must be subordinated, and some efficient—argu
ably, necessary— state procedures must be overriden to
assure adequate protection of free expression. Re Green,
369 U.S. 689, shows a similar subordination of a state’s
interest in enforcing compliance with its courts’ temporary
injunctive orders in the face of a superior federal interest
in restricting state power to issue such orders. This Court
there reversed the contempt conviction of a lawyer who
advised" his clients to disobey a state injunction on the
ground tEaFKe Gad been denied an opportunity to present
evidence*^EewxngTEe injunction invalid by reason of fed-
eral'-hhL.EIB. preemption'. Re Green, thus involved a con-
'^esT~^tween~TEe~^Tate~'court’s legitimate concern with
commanding obedience to its preliminary restraining orders
and the national labor policy which, as it might appear
after hearing, could forbid any state~restramt m tEo com
troversy^..’The Court msotved' the- 1conflict in a manner
dictated by the overriding national policy, following its
earlier decision in Amalgamated Asso. 8.E.R.M.C.E. v.
Wisconsin Employment Relations Board, 340 U.S. 383,
that “a state court is without power to hold one in con-
tempt for violating an injunction that the state court had
no power to enter by reason of federal nre-emptioe” (369
T O T a t 692). —
However vital and important the national labor policy
may be, it surely can have no greater force than the con
stitutional right to free expression. Time and again this
court has made clear that free speech and expression,
especially political speech, is constitutionally in a “pre
ferred position,” Marsh, v. Alabama, 326 U.S. 501, 509;
64
Saia v. New York, 334 U.S. 558, 562, and that such free
doms are “delicate and vulnerable, as well as supremely
precious in our society,” N.A.A.C.P. v. Button, 371 U.S.
415, 433. We submit that if these pronouncements ac
curately reflect the ordering of national values of a free
society under the Constitution, the result reached in Re
Green is compelled a fortiori in a case where state con
tempt or criminal sanctions are invoked to enforce the
order of a state court prohibited by the First Amendment.
Two additional considerations support this result. First,
whatever vicissitudes it has suffered at the fringes, the
doctrine of prior restraint has continued in its essential
parts to command the recognition of this Court, see Ban
tam Books, Inc. v. Sullivan, 372 U.S. 58, 70, and for suffi
cient reasons. See Emerson, The Doctrine of Prior Re
straint, 20 Law & Contemp. Prob. 648 (1955). The essence
of this doctrine, as developed from Near v. Minnesota, 283
U.S. 697, through Freedman v. Maryland, supra, is to pre
serve the right of the individual—except where the most
imperative considerations of the social order ineluctably
oppose—to communicate his ideas first and suffer the con- /
sequencesTaterT^TluF^Fvariie of speech as its own preser-
"^ItOT^rmaxTmized, and whatever convincement, maturity
or change speech may work within the social and political
worlds itself affects the vital judgment how the speaker
is to be treated by his society. Necessarily, this conception
comports the notion that the lawfulness of speech is ordi
narily to be litigated after the speaker has had his say;
only then is it to be determined whether his expression
has offended some public law, and whether, even though it
has, the free-speech guarantees of the Constitution pro
tect him. Not one, but both of these issues are to be de
cided after what he says has been heard and has had its
effect. But this is precisely what the application o f the
Mine Workers rule in the area of free expression precludes.
65
The present case is exemplary. A sweeping and censorial
licensing law— such as Birmingham Code Section 1159—is
always an intolerable prior restraint. Cantwell v. Connecti
cut, supra. But the evil is infinitely compounded if enforce
ment of such a law by an injunction is given the effect of
coercing obedience in derogation of the normally applicable
rule that this sort of law may be contested in a criminal
prosecution for its violation notwithstanding failure to seek
a permit. Lovell v. Griffin, 303 U.S. 444, 452-453; Staub v.
Baxley, 355 U.S. 313, 319. Once the injunction issues, a
person enjoined may no longer speak, run his calculated
risk, and enjoy subsequent successful vindication of his
rights, even in a clear case of protection on the one hand
and willfull repression on the other. By fiat of any judicial
officer, that restraint of speech which the Constitution for
bids is for some indefinite time allowed, and the constitu
tional boundaries of free expression are fixed in the nar
row compass of the views held by the enjoining judge—
in good faith or bad, and with or without legal and factual
enlightenment— at the time before the speaker has been
heard. No subtlety of formulation can conceal that the
effect of such a rule is to give judges the most extreme and
repressive powers over speech in the very circumstances
when their powers are least likely to be exercised from an
informed and enlightened perspective.
Second, it can hardly be argued that the concern, however
important, of preserving respect for the courts and the
rule of law through orderly appeal of erroneous judicial
decisions justifies a result so fraught with peril for free
expression. These concerns, though equally weighty in
other contexts, were not there deemed dispositive: for
example, in Johnson jl. Virginia. 373 U.S. 61; and George
v. Clemmons, 373 U.S. 241, where the defendants were sus
tained inoTs obeying judicial orders enforcing racial segre-
66
gation among spectators in the courtroom; and in Hamil
ton v- Alabama, 376 U.S. 650, where a witness testifying
in her own behalf was sustained in refusing to obey the
court’s direction that she answer questions when addressed
by the prosecutor in a racially discriminatory fashion. The
plain fact is that most persons, confronted by a judicial
order, will be sufficiently compelled to obey it by the
chance that the judge is right, coupled with the threatened
consequences if he is right; the increment in obedience
obtained by assuring the power to punish even when i he
judge i s 'v j q ^ against the
cost in the First Amendment area of enforcing unconstitu
tional restraints. Again, this Court,— and, indeed, the Ala
bama Supreme Court—has long recognized that a witness
claiming the privilege against self-incrimination, may dis
obey a judicial order to answer questions and litigate the
validity of the claim when prosecuted for contempt. E.g.,
Blau v. United States, 340 U.S. 159; Stevens v. Marks, 383
U.S. 234; Ex parte Boscountz, 84 Ala. 463, 4 So. 279 (1888);
Ex parte Blakey, 240 Ala. 517, 199 So. 857 (1941). The
present case is different from those just mentioned only
in that here the court order involved is labeled “ injunc
tion.” But it is difficult to perceive that the label signifi
cantly affects the realities of judicial prestige on the one
hand or destruction of individual rights through uncon
stitutional judicial action on the other. The self-incrimina-
tion cases show plainly that disobedience of judicial orders
may be accepted and institutionalized as a means of chal
lenging them, without disruptive effects on judicial dignity
or power. And just as the privilege against self-incrimina-
tion would irrevocably be lost if a valid claim of privilege
could not be maintained even in the face of an erroneous
judicial, order, so ,it is with free expression. The power to
suppress expression by injunctive order is inevitably in
many cases- and perhaps in most cases of political expres-
67
sion— the power to deny an airing of ideas_at the only time
when they may be effective. That is, simply, the power to
destroy free expression as an instrument for political and
social regeneration. Cf. Mills v. Alabama, 384 U.S. 214.
Preservation of the right of free expression from re
pressive and arbitrary controls requires at the least that
citizens who are finally held to have engaged in federally
protected speech escape punishment for it. Citizens are
entitled to the constitutional protections afforded by rea
soned law, “right” law insofar as full and final adjudication
can make it right, not law by fiat. I f a citizen disobeys
the injunction of a court on the ground that the court’s
order is inconsistent with constitutional protections
of free speech, he must risk punishment; and it will be
imposed surely enough if he is wrong. But once it is
definitively decided that the court was wrong and the
citizen right, imposing punishment will not promote re
spect for the courts or for the law.
Our principal submission, for these reasons, is that any
punishment for violation of an injunctive order forbidden
by the First and Fourteenth Amendment guarantees of
free expression is itself unconstitutional by force of these
same guarantees. However, there are circumstances in the
present record which make application of the Mine Workers
doctrine here particularly vulnerable to this constitutional
objection.
First, the Circuit Court’s injunctive order restrains free
speech under a vague and indefinite formulation that gives
no fair warning. The sweeping terms of the injunction
overreach a vast range of First Amendment conduct with
ambiguous prohibition. See petitioners’ vagueness objec
tions to the parading law at pp. 41 to 46 above and to the
injunction at pp. 46 to 48 above. Prior Alabama law ap
pears to recognize vagueness of an injunctive order as a
68
| defense to a charge of its violation. See Ex parte Connor,
1 240 Ala. 327, 198 So. 850, 853; In re Willis, 242 Ala. 284,
if 5 So.2d 716, 721. The result could hardly be otherwise
I under the Due Process Clause, since it is no more fair
to punish a man for violating an injunction than for vio
lating a statute26 which does not adequately inform him
what conduct it prohibits.27 It may perhaps be easier for
him to seek advance judicial clarification of the injunction
than of the statute, although that is not always so as a
matter of state procedure and, in any event, it is ordinarily
easier to secure a prosecutor’s opinion on a criminal stat
ute than a judge’s on an injunction, if efforts at clarifica
tion may legitimately be demanded by the state of a
vaguely notified putative defendant or contemnor. What
ever may be the case in other areas of regulation, this
Court has already rejected the imposition of such a burden
by the state in First Amendment contexts. Dombrowshi
v. Pfister, 380 U.S. 479. In those contexts, the Court has
always been quick to perceive and to condemn the added
repressive force which vagueness and overbreadth lend to
regulations that strike at protected expression. E.g.,
Thornhill v. Alabama, 310 U.S. 88; N.A.A.C.P. v. Button,
371 U.S. 415. The same considerations strongly support
the view that a state’s power to punish violation of an
injunction invalid by force of the First Amendment is
particularly dangerous, and particularly to be disallowed,
where the injunction is as broad and sweeping as the one
presented here.
28 It has been recognized, in fact, that a large part of this Court’s
vagueness litigation has involved challenges not to state statutes as
written but to glosses put by state judicial opinions on. the statutes. See
Note, 109 U. Pa. L. Rev. 67, 68 n. 4.
27 Petitioners again note that the Alabama Court of Appeals, in peti
tioner Shuttlesworth’s appeal from a conviction under Birmingham Code
section 1159 based upon the Good Friday march, took the view that the
ordinance (hence, necessarily, the injunction enforcing it) did not require
that a permit be obtained for that march. See p. 46 above.
69
Second, the present injunction restrains free speech by
compelling its subjection to a discretionary licensing law
susceptible of arbitrary and repressive administration.
Such an injunctive order to obey a permit requirement
delegates complete control of expression to the licensing-
official. This is significant for several reasons. It makes
the injunction not merely void on its face but so palpably
void, under decisions of this Court going back to 1938, as
to cast grave doubt on the issuing court’s concern for the
Constitution. It presents an acute and egregious danger
of wholesale denial of the rights of free expression. On
the other hand, it indicates a relatively insignificant and
almost wholly illegitimate state interest in punishing vio
lations of the order. This is not an injunction directed to
preventing violence or disorder, or even to preventing
demonstrations. It does not prohibit demonstrations, but
only demonstrations without a permit. The state’s inter
est in its enforcement, then amounts to nothing more than
its interest in demanding compliance with the plainly void
permit ordinance—a matter of no constitutional weight
because constitutionally condemned—and some general in
terest in the enforcement of all judicial decrees. Even the
latter interest is minimal here, since the court has not it
self undertaken to forbid, but only to authorize administra
tive licensors to forbid, vaguely defined conduct. Real
istically, these petitioners violated no judicial ban by
marching: there was no such unconditional ban. At most
they violated Commissioner Eugene “ Bull” Connor’s ban
on demonstrations; and it is Commissioner Connor, rather
than the court, whose control is sought to be enforced by
their contempt convictions.
Third, this injunctive order was issued ex parte without
notice or hearing. This is not a case where petitioners had
a fair opportunity to be heard in court before they were
70
restrained. There was not even any sworn allegation or
finding by the Circuit Court that it was impractical to
give petitioners notice before issuance of the order. The
leaders of the organizations involved were plainly avail
able for service of process and were served with copies of
the order a few hours after it was issued. There was no
showing of any emergent circumstances justifying an ex
parte order of indefinite duration without the slightest
semblance of adversary procedure or opportunity to de
fend. Nor was there any provision for speedy judicial
hearing of the case after the order was issued. It was, of
course, common knowledge among civil rights leaders in
Alabama that the National Association for the Advance
ment of Colored People was enjoined from all activities
without any hearing for a long period of years by an
ex parte “ temporary” injunction. NAACP v. Alabama, 377
U.S. 288. The federal procedures involved in Mine Workers
were subject to no such possibilities of abuse. Federal
Rules of Civil Procedure, Rule 65(b) contains elaborate
safeguards not provided by Alabama law. Cf. Freedman
v. Maryland, 380 U.S. 51.
Fourth, the matter of timing, ordinarily critical in civil
rights protests as in other forms of political expression, is
particularly highlighted by the circumstances in Birming
ham in 1963. The injunction against petitioners was calcu
lated and effective to interrupt the momentum of their
effort to arouse the conscience of the community and the
nation, halting their activities before they could build a
broader base of support for their assault on segregation
in the city. Moreover, these petitioners are all ministers
and their organizations were religiously oriented. The in
junction, issued. Wednesday night, prevented demonstra
tions on Grood Friday and Easter Sunday, days o f special
sacramental significance on which church-oriented organi-
71
zations could hope to attract-broad attention to their pro
grams and protests. The injunction subjected their activi
ties to Commissioner Connor’s discretion at precisely the
moment when repression could be most crippling.28
In short, petitioners submit it would be indefensible to
extend the Mine Workers doctrine to permit punishment
of expression under an invalid order, vague and broad in
its repression of free speech, palpably unconstitutional on
its face, constituting city administrators the censors of the
streets, issued ex parte without stated justification, and for
an indefinite duration, in circumstances which rendered its
immediate restraint a crippling blow to an ongoing locally
unpopular political movement.
H I .
Petitioners King, Abernathy, Walker and Shuttles-
worth Were Unconstitutionally Convicted of Contempt
for Making Statements to the Press Criticizing the In
junction and Alabama Officials.
On April 11, 1963, petitioner Martin Luther King, Jr.
read to the press a document, which was distributed as
a “ Statement by M. L. King, Jr., P. L. Shuttlesworth, [and]
Ralph D. Abernathy” and contained the notation “ For
Further Information—Phone . . . Wyatt Tee Walker”
(R. 410). Walker distributed the document to the press
and Shuttlesworth orally “ reaffirmed” it (R. 250). The
text of the statement criticized Alabama officials and said
that the injunction was “unjust, undemocratic and uncon
stitutional” (R. 409).
28 As to petitioners Hayes and Fisher, there is an additional reason why
the Mine Workers doctrine does not apply. Since they were not parties
to the injunctive action, nor represented in it, there was no way in which
they could have challenged the injunction except in the defense to these
contempt prosecutions.
72
The. City charged that the Statement constituted a con
tempt of court (R. 85, 89). At trial the judge mentioned
it as one of the three incidents presented lo him which
were the basis for the charge (R. 296).29 In his decree
adjudging these~petitioners in contempt, he stated that
the petition to require the defendants to show cause charged
them with violating the order in the following respects:
first, “by their issuance of a press release . . . which release
allegedly contained derogatory statements concerning Ala
bama Courts and the injunctive order of this Court in
particular” (R. 420) ; and, second, by their “participating
in and conducting certain alleged parades in violation of
an ordinance of the City of Birmingham which prohibits
parading without a permit” (Ibid). He ruled that the “The
Charges . . . constitute past acts of disobedience and
disrespect for the orders of this Court” (emphasis added)
(R. 420). He then found generally and without further
specification that “ the actions” of petitioners were “ obvious
acts of contempt, constituting deliberate and blatant denials
of the authority of this Court and its order” (R. 422).
The Alabama Supreme Court opinion quotes the press
release in full, without indicating what significance the
Court attaches to it. The Court also quotes the trial
judge’s summary of the charges presented (R. 437), but
says nothing else about the charge of contempt for making
derogatory remarks. The City argued in its brief in the
court below that petitioners were “guilty of criminal con
tempt for publication of the news release” "and that the
statements “'reflected upon the 'integrity of the Court pre
sided over by Judge Jenkins and other Courts of Alabama
29 “ The Court: The only charge has been this particular parade, the
one on Easter Sunday and the one on Good Friday, and on the ques
tion o f the meeting at which time some press release was issued. Am
I correct in that?
Mr. MeBee: Essentially that is correct” (R. 296).
73
and the South.” (Brief of the City of Birmingham in the
Supreme Court of Alabama, p. 36). However, the Supreme
Court of Alabama never expressly passed on this conten
tion.
On this record, it is evident that the conviction by the,
trial judge, and perhaps the affirmance on appeal, may
have been premised upon the alleged derogatory remarks.
Indeed the inference is compeTlmgthat the trial judge did
regard the issuance of the press rejeas^ajjSTSSxunH-fQr
T3Te™fimImg of guilt This inference is particularly strong-
in the case of the petitioner Walker, who was not shown
to have actually marched in either of the demonstrations
conducted without a permit, although he was present in
the area when the demonstrations occurred.
If, as we urge below, these four30 petitioners may not
constitutionally be punished for publishing the statements
made in their press release, their convictions must be re
versed. When, as here, a defendant is charged with crime
on a number of grounds one of which is unconstitutional,
and he is convicted by a general verdict or finding of guilty,
his conviction cannot stand. This is plain, since it is im
possible to conclude that the conviction does not rest on
a constitutionally impermissible basis. Thomas v. Collins,
323 IT.S. 516, 529; Stromberg v. California, 283 TT.S. 359,
367-68; Williams v. North Carolina, 317 U.S. 287, 291-93;
Terminiello v. Chicago, 337 U.S. 1.
It is the contention of these petitioners that to the
extent the contempt judgment was based on the allegedly
derogatory statements criticizing the court in petitioners’
press release and statement, it plainly violates the rights
of freedom of speech, as protected by the due process
30 The city argued below that petitioner A. D. King might also be
punished for the press release. But we are unable to perceive the basis
for a claim that he published the release.
74
clause of the Fourteenth Amendment. Garrison v. Loui
siana, 379 U.S. 64; New York Times Company v. Sullivan,
376 U.S. 254; Wood v. Georgia, 370 U.S. 375; Bridges v.
California, 314 U.S. 252; Pennekamp v. Florida, 328 U.S.
331; Craig v. Harney, 331 U.S. 367. Cf. Holt v. Virginia,
381 U.S. 131, and Re Sawyer, 360 U.S. 622 (attorneys’
criticism). These cases make it clear that courts, no more
than other governmental agencies, are not immune from
criticism for their acts. As this Court indicated in Penne
kamp, the only restriction is whether statements might
amount to intimidation ..or coercion of the court so as to
make a fair trial impossible. 328 U.S. 334-335. And in
Craig v. Harney, it was said:
[T]he unequivocal command of the First Amendment
serve[s] as [a] constant [reminder] that freedom of
speech and of the press should not be impaired through
the exercise of [the contempt] power unless there is
no doubt that the utterances in question are a serious
and imminentjhreat to the administration of justice.
~ 331 U.S. at 373.) " “ *------ ------------- — —
For, as the Court indicated, criticism even though unfair
and in strong and even intemperate language cannot in and
of itself be the basis for a finding of contempt: rather.
. there must be a danger which immediately impairs the
administration of justice. (331 U.S. at 376.)
Turning to the remarks of the petitioners themselves, it
is clear that they fall well within the constitutional bound
aries set out by these cases. The press release, after re
affirming the petitioners’ faith in the federal judiciary,
stated, inter alia:
However, we are now confronted with recalcitrant
forces in the Deep South that will use the courts to
75
. perpetuate the unjust and illegal system of racial
separation.
Alabama has made clear its determination to defy
the law of the land. Most of its public officials, its
legislative body and many of its law enforcement
agents have openly defied the desegregation decision
of the Supreme Court. We would feel morally and
legally responsible to obey the injunction if the courts
of Alabama applied equal justice to all of its citizens . . .
Southern law enforcement agencies have demonstrated
now and again that they will utilize the force of law
to misuse the judicial process.
This is raw tyranny under the guise of maintaining
law and order. We cannot in all good conscience obey
such an injunction which is an unjust, undemocratic
and unconstitutional misuse of the legal process . . .
Just as in all good conscience we cannot obey unjust
laws, neither can we respect the unjust use of the
courts . . . (R. 409-410.)
Neither of the courts below made any findings or con
clusions appraising this statement in accord with the
standards set down in Craig, Pennekamp, or the other
cases cited above. Nor was there any finding or effort
to prove that the statements were false or malicious under
the standards set out in Garrison^vT Louisiana, 379 ILST"
75. -------- '----------- — ------
Particularly in light of the situation in Alabama, peti
tioners had a right under the First Amendment to say
that the injunction was unconstitutional, unjust, and in
violation of their rights, and that Alabama officials were
76
working to support segregation. For some time before
the issuance of the injunction, the petitioners had been
thwarted in their attempts to carry on peaceful demon
strations protesting the all-pervasive segregation in Birm
ingham by being arrested by city officials under an ordi
nance which the Alabama courts themselves have now held
unconstitutional and diseriminatorily applied. Shuttles-
worth v. Birmingham, 43 Ala. App. 68,180 So.2d 114 (1965).
Similarly, city officials had been active in enforcing, by
arrests of peaceful demonstrators, statutes requiring segre
gation in restaurants, etc., which were blatantly unconsti
tutional (see Appendix, p. 3a infra, and R. 70-81).
The official governmental attitude of Alabama towards
desegregation and civil rights organizations was a matter
of common repute and well known to this Court, and that
attitude was enforced fully by the courts of Alabama.
See the history of litigation set forth in Mr. Justice
Harlan’s opinion in NAACP v. Alabama, 377 U.S. 288.
And certainly petitioner Shuttlesworth was well acquainted
personally with the use of the courts in Alabama as a
vehicle for harassment and intimidation of a leader of
the civil rights movement. See, Shuttlesworth v. City of
Birmingham, 382 U.S. 87; Shuttlesworth v. City of Birm
ingham, 376 U.S. 339; Shuttlesworth v. City of Birming
ham, 373 U.S. 262; In re Shuttlesworth, 369 U.S. 35;
Shuttlesworth v. City of Birmingham, 368 U.S. 959. There
fore, it was wholly legitimate for the petitioners to view
the injunction as just one more step in a continuing and
consistent policy of Alabama officials, aided and abetted
by the state courts, to harass, intimidate and interfere
with their lawful and constitutional attempts to rid the
state of illegal segregation. For expressing that view in
vigorous and forthright language, they cannot be punished
fay contempt of court or otherwise.
77
IV.
The Conviction of Petitioners Hayes and Fisher De
nied Them Due Process Because There Was No Evi
dence That They Had Notice of or Knowledge of the
Terms of the Injunction.
For a criminal conviction to be constitutionally valid
there must be some evidence at least of all of the elements
of the crime. See Thompson v. Louisville, 362 U.S. 199, and
similar authorities cited in part II (B) above. Under Ala
bama law, in order to sustain a conviction of criminal
contempt for violation of an injunction by a person who
is not a party to an injunctive suit, there must be a finding
that he had notice, of the injunction and knowledge of its
terms and that he willfully disobeyed it. In Be Willis, 242
Ala. 284, 5 So. 2d 716, 721 (1941) (defendant Riley dis
charged from contempt by the Alabama Supreme Court
because although he knew of the injunction and acted at
the direction of the defendants he was not a party and
was not familiar with the order’s terms). It is the conten
tion of the petitioners Hayes and Fisher that there was
no constitutionally sufficient evidence introduced in the
trial court to support a finding of their knowledge of the
order’s provisions.
Neither petitioner Hayes nor petitioner Fisher was
named a party to the bill of injunction or in the injunctive
order itself (R. 25-26; 37-38). Further, they were not
served with copies of the order until after their alleged
violation of it by participating in the march on Easter
Sunday, April 14, 1963.31
31 The Supreme Court, o f Alabama stated in its opinion that Hayes and
Fisher were not served “until after the Sunday march” (E. 445).
78
The court below relied exclusively on petitioner Fisher’s
own testimony (R. 304-305)32 to justify its conclusion that
he not only knew of the injunction but understood it. It
does appear from other evidence that Fisher attended
church meetings on Friday and Saturday, the 12th and
13th of April, at which appeals were made for persons
to participate in the walk planned for Easter Sunday (R.
445). However, none of the testimony introduced relative
to the Friday and Saturday meetings indicated that there
was any discussion of the injunction by the speakers or by
others (See, e.g., R. 199-204; 337-38). Apparently, there
32 “ Q. What did you hear about the injunction? What did they
tell you about it? A. I only heard about the injunction. It wasn’t
interpreted to me.
Q. Was it interpreted to you you would probably have to go to
jail i f you took part in that march or walk? A. Yes, but I didn’t
see any reason I would have to go.
Q. I understand, but you were not told if you got in that march
you would have to go to jail? A. I was told if I walked on the
streets of Birmingham I would have to go to jail.
Q. I am talking about this Easter Sunday procession. That is
what they were talking about? A. That’s right.
Q. And you were told that you would go to jail if you did, or
probably would? A. I was never told that.
Q. You understood you would? A. Not for just walking on the
streets of Birmingham.
Q. You mean for walking in this procession you didn’t understand
you would be arrested? A. I didn’t understand I would be arrested
for walking.
Q. You didn’t understand you would be arrested for walking? A.
I can’t understand it yet.
Q. You didn’t understand it then and you don’t understand it now?
A. That’s right.
Q. All right, did anybody say anything to you about who was in
cluded in the injunction? A. After I was confined and after the
contempt I read it.
Q. You have read the contempt? A. That’s right, but I haven’t
read the injunction yet.
Q. When did you hear about the injunction? A. When did I hear
about the injunction?
Q. Yes, not the contempt but the injunction? A. I think I told
the detective that interviewed me that I heard about an injunction,
about an injunction, not any particular injunction” (R. 304-305).
79
were only calls for persons to walk. Fisher testified that
he “ only heard about the injunction” (R. 304) but it was
not interpreted to him. He did not understand that any
of his activities were enjoined (R. 305). Indeed it is clear
that he had only a vague knowledge that some kind of
an injunction had been issued which may have restricted
the activities of certain people (R. 305). There is no
evidence whatsoever that he sufficiently understood the
terms of the injunction to have committed a willfull vio
lation of it.
Fisher did testify that he had been told that if he
walked on the streets of Birmingham, he would have to go
to jail (R. 305). However, large numbers of persons had
been arrested for parading without a permit under section
1159 of the City Code in the days before and after the
injunction was issued (R. 40, 41, 42). Therefore, there
is not the slightest basis for inference that his statement
referred to his expectation of being arrested on any other
ground than that of the many persons before him. The
permit law was, in fact, the ground for his arrest on
Easter Sunday.
The evidence with regard to Reverend Hayes was no
more persuasive. His conviction for contempt rested pri
marily on the testimony of Detective Harry Jones of the
Birmingham Police Force. Jones testified that Reverend
Hayes said that he had knowledge of the injunction but
that he was marching in the face of it anyway “ for human
dignity” (R. 257). Reverend Hayes’ testimony indicated
that his knowledge of the injunction was extremely limited.
He had heard about it only through a television news flash
on Good Friday (R. 336). The news flash did not say that
the injunction restrained members of the Alabama Chris
t ia n Movement for Human Rights but only that it was
“ against demonstrators in Birmingham” (R. 337). He did
not inquire about the injunction “because I had not been
8 0
enjoined” according to his understanding (R. 337). Again,
he had not been served himself and there was no one at
the meetings he attended that he felt was able to give him
information. He was not one of the leaders or organizers
of the march on Sunday (R. 338) and was not an officer
of the A.C.M.H.R. (R. 336).33 Thus, just as in the case of
Reverend Fisher, there was no evidence that petitioner
Hayes had any knowledge of what the injunction actually
prohibited nor evidence from which it could be inferred
that he either understood the order or had an opportunity
to understand it. Hence his conviction also must be re
versed since it rests on no evidence of the necessary ele
ments of criminal contempt.
The Supreme Court of Alabama did reverse the contempt
conviction of another participant in the Sunday walk,
Reverend N. H. Smith, on the grounds of insufficient evi
dence (R. 446-47). There was no more evidence against
petitioners Fisher and Hayes than there was against Smith.
A detective testified that Reverend Smith had said that
he knew of the injunction, as did Rev. Hayes (R. 260).
Rev. Smith himself testified that he had “ glimpsed” about
the injunction in the paper and had heard about it once
on the radio (R. 310-11). He made no attempt to find out
what it was about, although he knew that petitioners King,
Abernathy and Shuttlesworth had been enjoined (R. 313-
14). Smith further testified that he was on the Board of
Directors of one of the enjoined organizations (R. 319).
Despite this testimony, the court below held that the
conviction against Smith could not stand, since the injunc
tion restrained acts other than parading and knowledge
either of such other enjoined acts or of the injunction
generally “would not be knowledge of the injunction against
parading” (R. 447). The same reasoning certainly applies
33 His “speech” on Saturday night (E. 335) was merely a “ Gospel
Message” (E. 306).
81
to petitioners Hayes and Fisher, and therefore their con
victions must also fall under the rule applied to Smith,
since, as the court said of Smith, a finding that they were
fully advised of the terms of the injunction “must rest on
speculation” (R. 446), and not on evidence. Thompson v.
Louisville, 362 U.S. 199; Fields v. City of Fairfield, 375
IT.S. 248.
CONCLUSION
For the foregoing reasons it is respectfully submitted
that the judgment below should be reversed.
Respectfully submitted,
J ack Greenberg
J ames M. N abrit , III
N orman C. A m aker
L eroy D . Clark
C harles S teph en R alston
M ichael H en ry
10 Columbus Circle
New York, New York 10019
A rth u r D . S hores
1527 Fifth Avenue North
Birmingham, Alabama
O rzell B illin gsley , J r .
1630 Fourth Avenue North
Birmingham, Alabama
A n t h o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa.
Attorneys for Petitioners
H arry H . W achtel
B e n ja m in S piegel
598 Madison Avenue
New York, New York
Of Counsel
APPENDIX
la
Statutes of State of Alabama
Conferring Contempt Powers on Courts
Code o f Alabama (R ecom piled 1958)
Title 13, § 4. Other powers.—Every court has power:
To preserve and enforce order in its immediate presence,
and as near thereto as is necessary to prevent interruption,
disturbance or hindrance to its proceedings.
To enforce order before a person or body empowered to
conduct a judicial investigation under its authority.
To compel obedience to its judgments, orders and proc
ess, and to orders of a judge out of court, in an action or
proceeding therein.
To control, in furtherance of justice, the conduct of its
officers, and all other persons connected with a judicial
proceeding before it, in every matter appertaining thereto.
To administer oaths in an action or proceeding pending
therein, and in all other cases where it may be necessary
in the exercise of its powers and duties.
To amend and control its process and orders, so as to
make them conformable to law and justice.
Title 13, § 5. Punishment for contempt.—For the effec
tual exercise of the powers conferred by this chapter, the
court may punish for contempt in the cases provided for
in this chapter.
Title 13, §9. Punishments by the respective courts for
contempt.—The courts of this state may punish for con
tempt by fine and imprisonment, one or both, as follows:
The supreme court, by fine not exceeding one hundred dol
lars, and imprisonment not exceeding ten days; the circuit
courts by fine not exceeding fifty dollars, and imprisonment
not exceeding five days; the courts of probate and county
2a
courts and registers by fine of not exceeding twenty dol
lars and imprisonment not exceeding twenty-four hours;
the courts of county commissioners, by fine not exceeding
ten dollars, and imprisonment not exceeding six hours;
and justices of the peace, by fine of not exceeding six dol
lars, and imprisonment not exceeding six hours.
3a
Some Ordinances of City of Birmingham, Alabama,
Requiring Segregation by Race
General Code of City of Birmingham, Alabama (1944)
Sec. 369. Separation of races—It shall be unlawful to
conduct a restaurant or other place for the serving of food
in the city, at which white and colored people are served
in the same room, unless such white and colored persons
are effectually separated by a solid partition extending
from the floor upward to a distance of seven feet higher,
and unless a separate entrance from the street is provided
for each compartment.
Sec. 597. Negroes and white persons not to play to
gether—It shall be unlawful for a negro and a white per
son to play together or in company with each other in
any game of cards or dice, dominoes or checkers.
Any person who, being the owner, proprietor or keeper
or superintendent of any tavern, inn, restaurant or other
public house or public place, or the clerk, servant or em
ployee of such owner, proprietor, keeper or superintendent,
knowingly permits a negro and a white person to play
together or in company with each other at any game with
cards, dice, dominoes or checkers, or any substitute or
device for cards, dice, dominoes or checkers, in his house
or on his premises shall, on conviction, be punished as
provided in section 4.
Building Code of City of Birmingham, Alabama (1944)
Sec. 2002.1. Toilet Facilities—Toilet facilities shall be
provided in all occupancies for each sex, according to
Table 2002.2 except one family living units. The number
provided for each sex shall be based on the maximum num
ber of persons of that sex that may be expected to use such
building at any one time. Where negroes and whites are
accommodated there shall be separate toilet facilities pro
vided for the former, marked plainly “ For Negroes only.”
MEILEN PRESS INC. — N. Y. 2)9