Barrows v. Jackson Brief for Respondent

    I s  THE

Htttteib (Emir! nt A p p m lB
F oe the F ifth Circuit 

No. 22,990

La wees ce Guyot, et al.,

-v.—
Appellants,

M. B. P ierce, et al.,
Appellees.

OH APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

Carsie A. H all 
H enry M. A ronson

538% North. Farisli Street 
Jackson, Mississippi 39202

J ack Greenberg 
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

J ohn H onnold, J r.
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Appellants

Of Counsel
A nthony G. A msterdam



I N D E X

Statement of the Case....................................................  1

Specifications of Error ................................ *.................  9

A rgument :

I. The Provisions of Section 135 of the Uniform 
Traffic Regulation Code of the City of Jackson 
Pertaining to Pedestrians Constitute an Over­
broad and Yague Regulation of Expression .... 10

II. Appellants Are Being Prosecuted for Conduct 
Protected by First Amendment Guarantees of 
Free Expression Pursuant to a Policy by the 
City of Jackson of Instant Suppression of Dis­
sident Public Communication.......... ....... .......—- 16
A. Appellants Were Engaged in the Exercise

of Their Federal Constitutional Right of 
Free Expression ...........................................  16

B. The City of Jackson Has a Policy of Instant
Suppression of Dissident Communication in 
Public Places ................ .............. - ..... -.......... 19

III. The Court Below Should Have Granted the 
Equitable Relief Prayed for by Appellants and 
Granted by This Court Pending Appeal ........ . 22
A. The Court Below Should Have Granted a 

Preliminary Injunction Against Appellees, 
Restraining Them From Enforcing Against 
Appellants the Provisions of Section 135 of 
the Uniform Traffic Regulation Code of the 
City of Jackson Pertaining to Pedestrians .... 24

PAGE



11

B. The Court Below Should Have Granted a 
Preliminary Injunction Against Appellees, 
Restraining Them From Interfering, by Ar­
rest and Prosecution, With the Exercise of 
Appellants’ Federal Constitutional Right to 
Communicate Their Views on Public Issues 
by Peacefully Walking Two Abreast on the 
Public Sidewalks of the City of Jackson, 
Observing All Traffic Signals and Obstruct­
ing Neither Vehicular Nor Pedestrian Traffic 25

C. The Court Below Should Have Granted a 
Preliminary Injunction Against Appellees, 
Restraining Them From Arresting and 
Prosecuting Appellants for the Purpose of 
Harassing Them and Discouraging Them 
From Continuing Their Peaceful Protest 
Activities; Alternatively, at the Very Least, 
the Court Below Should Have Granted Ap­
pellants an Evidentiary Hearing to Make

PAGE

Their Case on This P o in t............................ 34

Conclusion...... .......... .......... ...... ...................—-............  36

A ppendices :

Appendix I—Ordinances of the City of Jackson
Involved........................................ . la

Appendix II—Supplemental Complaint ................ 3a



Ill

Table of Cases

PAGE

Anderson v. City of Albany, 321 F. 2d 649 (5th Cir.
1963) ....................................................................... ----- 11

Anderson v. City of Albany, 9 Race Rel. L. Rep. 1124
(M. D. Ga., August 18, 1964) ...................................... 28

Baggett v. Bullitt, 377 U. S. 360 (1964) ..................... 13, 31
Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss.

1961), judgment vacated 369 U. S. 31 (1962) .......... 30, 33
Bantam Books, Inc. v. Sullivan, 372 IT. S. 58 (1963) ....13, 31 
Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956),

aff’d per curiam, 352 U. S. 903 (1956) ..................... 31, 32
Bush v. Orleans Parish School Board, 194 F. Supp.

182 (E. D. La. 1961), aff’d per curiam, 368 U. S. 11 
(1961) .......................................................................... 32

Cameron v. Johnson, 244 F. Supp. 846 (S. D. Miss.
1964) , rev’d 381 U. S. 741 (1965) .......................... 35

Cantwell v. Connecticut, 310 U. S. 296 (1940) ..........  11
Cox v. Louisiana, 379 U. S. 536 (1965) ................. 11,15,18
Cox v. State of New Hampshire, 312 U. S. 569 (1941) .. 15 
Cramp v. Board of Public Instruction, 368 U. S. 278

(1961) .........................................-.............................. 13,31

Dilworth v. Riner, 343 F. 2d 226 (5th Cir. 1965) ........  33
Dombrowski v. Pfister, 380 U. S. 479 (1965) ....13,15, 23, 24,

28, 31, 34, 35
Dombrowski v. Pfister, 227 F. Supp. 556 (E. D. La. 

1964), rev’d 380 U. S. 479 (1965) ............................ 33,35

Edwards v. South Carolina, 372 U. S. 229 (1963) ..17,18, 30

Farmer v. State, 161 So. 2d 159 (Miss. 1964) .............. 30
Fields v. South Carolina, 375 U. S. 44 (1963) .......... 18,30



IV

Garner v. Louisiana, 368 U. S. 157 (1961) .................  12
Garrison v. Louisiana, 379 U. S. 69 (1964) .................  26
Guyot v. Pierce, No. 22676 .............................................  4
Guyot v. Pierce, No. 22733 ............................................. 6, 7

Hague v. CIO, 307 U. S. 496 (1939)................................  18
Henry v. City of Rock Hill, 376 U. S. 776 (1964) -..18,30
Hillegas v. Sams, 349 F. 2d 859 (5th Cir. 1965) ....... 35
Herndon v. Lowry, 301 U. S. 242 (1937) .....................  12

Kelley v. Page, 335 F. 2d 114 (5th Cir. 1964) .......... 26, 33
Knight v. State, 161 So. 2d 521 (Miss. 1964) ..........  30
Kunz v. New York, 340 U. S. 290 (1951) ....... ........... 19

Leiter Minerals v. United States, 352 U. S. 220 (1957) 31 
Lovell v. Griffin, 303 U. S. 444 (1938) ........................... 2

Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958) ......  32

NAACP v. Button, 371 U. S. 415 (1963) .......... 10,12,19, 31
NAACP v. Thompson, No. 21741 .........................2, 6, 20, 30

Schneider v. State, 308 U. S. 147 (1939) .......................  19
Shuttlesworth v. City of Birmingham, 15 L. Ed. 2d

176 (1965) ................................................................... 13
Smith v. California, 361 U. S. 147 (1959) ................. 13,31
Strother v. Thompson, No. 23033 .........................2, 5, 7, 8

Terminiello v. Chicago, 337 U. S. 1 (1949) .................  15
Thomas v. State, 160 So. 2d 657 (Miss. 1964), rev’d

380 U. S. 524 (1965) ...............................................29, 30
Thornhill v. Alabama, 310 U. S. 88 (1940) ..............11,12

PAGE



V

United States v. City of Jackson, 318 F. 2d 1 (5th Cir.
1963) ........................................ - ................................. 1>20

United States v. National Dairy Prods. Co., 372 U. S.
29 (1963) ......... -........................................................ 34>37

PAGE

Williams v. Wallace, 240 F. Supp. 100 (M. D. Ala.
1965) ............................................................................  28

Winters v. New York, 333 U. S. 507 (1948) .............. 12

Statutes and Ordinances Involved

28 U. S. C. §2283 ......................................................... ^
42 U. S. C. §1983 ......................................................... 3:
Miss. Code 1942, §8137(d) .............................................
Mississippi Uniform Highway Traffic Regulation Act, 

Section 8126 .................................................................
Code of Ordinances of the City of Jackson, §594 ........ ■
Uniform Traffic Regulation Code of the City of Jack- 

son, §134 ...............-........... -...................... .................14- 25
Uniform Traffic Regulation Code of the City of Jack- 

son, §135 .............................................4,9,10,14,23,24,25

Other Authorities

Amsterdam, Criminal Prosecutions Affecting Federally 
Guaranteed Civil Rights: Federal Removal and
Habeas Corpus Jurisdiction to Abort State Court 
Trial, 113 U. Pa. L. Rev. 793 (1965) ......................... 30

Ralven, The Concept of the Public Forum, 1965 Su­
preme Court Review.......................-.......-..................16,18



VI

PAGE

Law Enforcement: A Report on Equal Protection in 
the South (United States Commission on Civil Rights
1965) .....................................................................21,28,29

Note, 109 U. Pa. L. Rev. 67 (1960) ............................  12

United States Commission on Civil Rights 1963 Report 19



In t h e

Mni&b (Enurt xif Appeals
F or the F ifth Circuit

No. 22,990

— ---------------------- .... .- — ----— ■

Lawrence Guyot, et al.,

—v.—

M. B. P ierce, et al.,

Appellants,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

Statement of the Case
The legal issue central to this case is whether the courts 

of the United States can protect federal rights of com­
munication about public issues during the only time when 
such protection is meaningful—while the issues are still 
alive for discussion.

This case portrays the core of an official program of total 
suppression of expression on the sidewalks and other public 
places of the City of Jackson, Mississippi. This program, 
publicly announced as a policy of “instant arrest” and im­
prisonment of citizens for appearing in public to communi­
cate dissident views on public issues, especially race rela­
tions, is not new. The Freedom Riders encountered it in 
1961. In 1963, this Court termed this abuse of the police 
power “sophisticated circumvention,” United States v. City 
of Jackson, 318 F. 2d 1, 5 (5th Cir. 1963). In May and



2

June of 1963, this program was employed to thwart peace­
ful civil rights protests, necessitating a federal injunction 
suit by the demonstrators now before this Court. NAACP 
v. Thompson, this Court, No. 21741.

This case had its genesis in an announcement by leaders 
of the Mississippi Freedom Democratic Party, shortly prior 
to June 14, 1965, of plans to walk to the State Capitol to 
protest the program of legislation proposed for the special 
session of the Mississippi Legislature which was to convene 
on Monday, June 14th (Record 7, 80). Jackson immediately 
responded. On June 13th and at other times thereafter, 
police officials arrested persons attempting to distribute 
leaflets expressing disagreement with the purposes of the 
special session and notifying the public of meetings in pro­
test against it.1

On June 14th, at approximately 10:00 a.m., Deputy Chief 
of Police J. L. Ray approached three Negro citizens pre­
paring to walk toward the State Capitol and informed them 
that they and all others who did so would be arrested if 
they did not first secure a permit (R. 12-13).2

At approximately noon, on June 14, 1965, over 400 per­
sons, white and Negro, including appellants herein, left the

1 Later, on June 18th, suit was filed against this form of suppres­
sion of communication, Strother v. Thompson, this Court, No. 
23033, a companion case.

2 Although the court below found that “ [t]he overwhelming 
probabilities are that the Council would have granted this permit 
to [appellants] if requested to do so,” the evidentiary basis of this 
finding is, at best, unclear. In the record in NAACP v. Thompson, 
supra, Mayor Thompson makes clear that he would not grant a 
permit to appellants there, although one was applied for (R. 575, 
833, 1054, 1077, Pi’s Ex. No. 29). At any rate, this issue is put to 
rest by dint of the facial invalidity of the provisions of the ordi­
nance involved (see Part I, infra); in this circumstance, a permit 
need not be applied for, Lovell v. Griffin, 303 U. S. 444, 452 (1938).



3

Morning Star Baptist Church in Jackson and began a peace­
ful walk toward the State Capitol ( R. 19, 81). They walked 
in quiet and orderly fashion,3 two abreast on the sidewalks,4 
observing all traffic signals and stopping at intersections 
without signals,5 and they created no obstruction to vehicu­
lar pedestrian traffic (R. 42-43, 45, 47, 48, 50, 57-58, 59, 63- 
64, 86). At approximately 12:30 p.m., at the intersection of 
High and John Hart Streets, these persons were halted by 
the police and arrested (R. 43, 81). They were packed into 
police wagons and driven to a previously prepared deten­
tion compound at the Fairgrounds (where, of course, the 
prisoners were segregated according to race (R. 53)).

About 2:00 p.m. on June 14, 1965, approximately one to 
two hours after the mass arrests, but before formal charges 
had been filed against appellants,6 counsel for appellants 
filed in the United States District Court for the Southern 
District of Mississippi, Jackson Division, a verified com­
plaint seeking injunctive relief against their arrest, prose­
cution and harassment by police and prosecutorial officials 
of the City of Jackson (R. 3-13). The complaint alleged 
that the defendant city officials threatened to and did arrest, 
prosecute, harass and intimidate appellants and members 
of the class7 of persons peacefully walking, two abreast on

3 Only after arrest did they begin to sing and chant (R. 43, 86).
4 The court below found: “It is true that most of this parading 

by most [appellants] was done on the sidewalk . . . ” (R. 86).
5 At some intersections, police officers directed traffic (R. 47).
6 Later in the afternoon, criminal affidavits were filed charging 

that those arrested did “willfully and unlawfully participate with 
others in a parade upon . . .  a public street of the City of Jackson, 
Mississippi without first having obtained a permit from the Mayor 
of said City.”

7 Appellees seem to misapprehend the definition of appellants’ 
class (R. 37, 40-41), as they would erroneously attempt to have it



4

public sidewalks in the City of Jackson, in a non-obstruc­
tive and orderly manner, toward the State Capitol (E. 7-9). 
An amended complaint filed later that afternoon set forth 
the circumstances of the arrests and alleged that Jackson’s 
anti-parade ordinance8 was invalid on its face and as ap­
plied to suppress constitutionally protected activity (E. 
15-22).

Late in the afternoon of June 14th, appellants applied 
to United States District Judge Harold Cox for a tem­
porary restraining order, which was denied9 (E. 1-2, 13,

embrace persons massing on the steps of the United States Post 
Office and Court House.

8 Appellants originally believed that they were charged under 
§594 of the Code of Ordinances of the City of Jackson, Appendix 1, 
p. 2a, since the criminal affidavits against them charged that 
they did “willfully and unlawfully participate with others in a 
parade upon . . .  a public street of the City of Jackson, Mississippi, 
without first having obtained a permit from the Mayor of said 
city” (emphasis supplied), and section 594 proscribes “any parade 
. . . upon any street . . .  of the City of Jackson . . . without first 
obtaining a permit from the Mayor . . . ” (Emphasis supplied.) 
However, counsel for appellants were later informed (see Supple­
mental Complaint and Affidavit, Appendix 2, p. 3a, omitted in 
printed record) that appellants are charged under §135 of the 
Uniform Traffic Regulation Code of the City of Jackson, see 
Appendix 1, p. la, which provides for the obtaining of a parade 
permit from the City Council. The Court below considered §135 
to be the basis of the prosecutions (R. 80-81). Nevertheless, this 
confusion illustrates the uncertainty involved in applying for a 
permit, see also note 1, supra, and Part I, infra, pp. 10-15, as well 
as the variegated weapons in Jackson’s arsenal of suppression of 
communication, see Part III B, infra, p. 25.

9 Appellants’ notice of appeal to this Court from the denial of 
the temporary restraining order was filed June 15, 1965 (R. 13). 
A motion for injunction pending appeal was filed in this Court 
the same day and denied. Guyot v. Pierce, No. 22676, in this Court. 
On July 6, 1965, this Court, on appellants’ motion, dismissed that 
appeal (R. 76-77).



5

23). Appellants also moved for a preliminary injunction 
(R. 1-2, 13). Judge Cox set a hearing on appellants’ mo­
tion for Saturday, June 19th.

About 11:30 a.m. on Tuesday, June 15th, approximately 
200 persons, white and Negro, assembled in front of the 
Morning Star Baptist Church and proceeded, two abreast 
on the sidewalk, to High and Church Streets, where they 
were met by police officers, ordered to disperse, and, upon 
their failure to do so, were arrested (R. 55-56). They were 
loaded into waiting police trucks and taken to the deten­
tion compound at the Fairgrounds.

About 1:30 p.m. on Wednesday, June 16th, between 50 
and 75 persons again assembled at the Morning Star Bap­
tist Church and again proceeded quietly, two abreast on the 
sidewalk, in a non-obstructive manner, to High and Church 
Streets (R. 60-62), where they were again met by police 
officers, arrested and hauled off to the detention compound 
(R. 63).10

On June 19th, Judge Cox heard oral argument on appel­
lants’ motion for a preliminary injunction and accepted 
affidavits of the parties, but refused to permit an eviden­
tiary hearing.11 Counsel for appellants filed at argument 
ten affidavits supporting their contention that their ac­
tivities had amounted to nothing more than walking two

10 As to this event there is some conflict, as the affidavit of 
J. L. Ray and C. R. Wilson avers that those arrested (19 in num­
ber) walked in the street (R. 69-70). The discrepancy as to the 
number of persons arrested probably represents juveniles, subject 
to juvenile proceedings. Appellants make no distinction as to them, 
insofar as the relief discussed in Parts III B and C, infra, is 
concerned.

11 Judge Cox also heard at that time argument in the leafleting 
case, Strother v. Thompson, supra.



6

abreast on the sidewalks of Jackson in a qniet and orderly 
way, constituting no obstruction to vehicular or pedestrian 
traffic. Counsel for appellees, at various times, submitted 
seven affidavits, which conceded that appellants had 
walked on the sidewalks (R. 28, 65), but which tried to 
give the impression (R. 28) that appellants’ walking had 
blocked the sidewalks.12 These seventeen affidavits con­
stitute the factual record made to date.13 Judge Cox re­
served decision on appellants’ motion.14 Shortly prior to 
June 28, 1965, appellants sought a ruling from Judge Cox 
on their motion for preliminary injunction, but Judge Cox

12 This suggestion is probably bottomed on the fact that after 
the police stopped the forward movement of the persons in the 
front of the group, those near the rear bunched up with those at 
the front (R. 28, 43, 45; 58, 59) ; nevertheless, this produced but 
a fraction of the congestion on the sidewalks that is produced daily 
at the opening or closing of a popular movie.

13 However, it should be noted that a compendious record detail­
ing Jackson’s policy of “instant arrest,” including the testimony 
of fifty witnesses and twenty-nine exhibits, was made in NA A CP 
v. Thompson, supra.

14 While Judge Cox had the case under advisement, Jackson 
relentlessly pursued its program of suppression of communication. 
On June 24th, a group of persons began a walk toward the office 
of the United States attorney to seek federal redress against police 
mistreatment (see R. 51-53) of prisoners theretofore arrested by 
the City of Jackson. As in previous protest walks, these persons 
walked on the public sidewalks, two abreast, and observed traffic 
controls at the crosswalks. When blocked by police on North Parish 
Street, these persons moved into an adjacent vacant lot, where 
Mrs. Annie Devine addressed them, advising them of their right 
to peaceable assembly. A police officer then stepped forward and 
announced that she was under arrest. Mr. James Forman then 
addressed the group and was similarly arrested. The members of 
the group were then told that they were also under arrest, where­
upon they sat down in the vacant lot. They were dragged away 
to the waiting trucks and taken to the fairgrounds compound, 
where they were charged with breach of the peace and with resist­
ing arrest (Exhibits J  and K to appellants’ motion for injunction 
pending appeal in this Court, Ouyot v. Pierce, this Court No.



7

refused to enter a ruling (Exhibits D, E and F to appel­
lants’ motion for injunction pending appeal in this Court, 
Guyot v. Pierce, this Court No. 22,733). Accordingly, on 
June 28, 1965, appellants appealed the district court’s re­
fusal to rule and moved this Court for an injunction pend­
ing appeal (R. 71).15 Appellants’ joint16 motion to this 
Court prayed that appellees should be restrained from:

(1) Further enforcement of the three invalid ordi­
nances [anti-parading and anti-distribution of hand­
bills], and

(2) Further interference, through prosecution under 
color of other laws or ordinances, with appellants’ 
rights of peaceful communication or expression on the 
public sidewalks of the City of Jackson;

(a) By peaceful distribution of handbills or like 
media of communication or;

(b) By peacefully walking two abreast on the pub­
lic sidewalks of the City of Jackson, observing all 
traffic signals, walking close to the building line or 
close to the curb so as not to interfere with or ob­
struct other pedestrian traffic on the sidewalks, in­
cluding the carrying of posters or signs expressing 
views on public issues.

On June 30, 1965, this Court granted appellants’ motion 
for injunction pending appeal, Guyot v. Pierce, this Court 
No. 22,733 (R. 75).17

15 Appellants in Strother v. Thompson also appealed and joined 
in this motion.

16 See Note 15, supra.
17 This Court also granted consolidation of the appeals.



8

On August 9, 1965, this Court dismissed the consolidated 
appeal for want of an appealable order, treated the notices 
of appeal as applications for writs of mandamus directing 
orders from the district court and retained in effect its 
earlier injunction (R. 78-79).

On August 24, 1965, Judge Cox entered an order (R. 88- 
89) denying appellants’ motion for a preliminary injunction 
for reasons contained in his letter opinion of August 20, 
1965 (R. 79-88).18 The district court concluded:

(1) “This ordinance [§135] appears to this Court to be 
valid under the authority of Cox v. State of New 
Hampshire, 61 S. Ct. 762” (R. 86) (considered, infra, 
Part I ) ;

(2) “There is no fact or circumstance thus far shown 
this Court to establish or even indicate that any 
First, Fourteenth or Fifteenth Amendment right 
of these plaintiffs is violated or impinged upon by 
the enforcement of this ordinance under the facts 
and circumstances in this case” (R. 84) (considered, 
infra, Part II A );

(3) Appellants “are being prosecuted by the munici­
pality in perfect food faith” (R. 87) (considered, 
infra, Part II  B).

Appellants’ timely notice of appeal to this Court was 
filed September 9, 1965 (R. 89-90).

18 On August 27, 1965, Judge Cox denied a preliminary injunc­
tion in Strother v. Thompson; notice of appeal was filed September 
23,1965.



9

Specifications of Error

I. The court below erred in refusing to declare uncon­
stitutional as an overbroad and vague regulation of ex­
pression the provisions of Section 135 of the Uniform 
Traffic Regulation Code of the City of Jackson pertaining 
to pedestrians.

II. The court below erred in refusing to hold that ap­
pellants are being prosecuted for conduct protected by 
First Amendment guarantees of free expression pursuant 
to a policy by the City of Jackson of instant suppression 
of dissident public communication.

III. The court below erred in denying appellants’ motion 
for a preliminary injunction against appellees, restraining 
them from:

1. Enforcing against appellants the provisions of Sec­
tion 135 of the Uniform Traffic Regulation Code of the City 
of Jackson pertaining to pedestrians;

2. Arresting and prosecuting appellants for exercising 
their federal constitutional right to communicate their 
views on public issues by peacefully walking two abreast 
on the public sidewalks of the City of Jackson, observing 
all traffic signals and obstructing neither vehicular nor pe­
destrian traffic;

3. Arresting and prosecuting appellants for the purpose 
of harassing them and discouraging them from continuing 
their peaceful protest activities; or, at the very least, the 
court below erred in refusing appellants an evidentiary 
hearing on this point.



10

A R G U M E N T

I.
The Provisions of Section 135 of the Uniform Traffic 

Regulation Code of the City of Jackson Pertaining to 
Pedestrians Constitute an Overboard and Vague Regula­
tion of Expression.

“ [Standards of permissible statutory vagueness are 
strict in the area of free expression. . . . Because First 
Amendment freedoms need breathing space to survive, gov­
ernment may regulate in the area only with narrow spec­
ificity” (NAACP v. Button, 371 U. S. 415, 432-33 (1963)).

Tested against this constitutional rule, the provisions of 
Section 135 of the Uniform Traffic Regulation Code of the 
City of Jackson pertaining to pedestrians fall far short of 
the mark. Section 135, entitled “CERTAIN USES OF 
STREETS UNLAWFUL”, consists of five prohibitory 
clauses. See Appendix 1, p. la. Of these, the first three 
are clearly inapplicable to anything even remotely related 
to this case, since they deal with vehicular traffic.

Clause 4 provides:

It shall be unlawful for any person . . .  to conduct or 
participate in any parade or marching in which floats, 
banners, placards or other distracting agencies, noises, 
objects or vehicles are used . . .

Clause 5 provides:

It shall be unlawful . . . for any person to engage in 
shouting, singing, orating, speaking or any other dis­
tracting activity of any kind on any of the public streets 
and thoroughfares of the City of Jackson. . . .



11

When trimmed to its essentials, each of these prohibitory 
clauses is seen to be an overbroad regulation with serious 
potentialities for misapplication in the area of free speech. 
Clause 4 essentially provides:

It shall be unlawful for any person . . .  to conduct or 
participate in any . . . marching in which . . . placards 
or other distracting agencies . . . are used. . . .

Clause 5 provides:

It shall be unlawful. . . for any person to engage in . . . 
orating, speaking or any other distracting activity of 
any kind on any of the public streets and thoroughfares 
of the City of Jackson. . . .

Literally read, these prohibitions would seem to punish 
a citizen for speaking while standing on a sidewalk or for 
pacing up and down on a sidewalk carrying a poster de­
crying some governmental policy. This they clearly cannot 
constitutionally do. See, for example, Cantwell v. Con­
necticut, 310 U. S. 296 (1940); Thornhill v. Alabama, 310 
U. S. 88 (1940).

But if these prohibitions cannot condemn all the conduct 
which, on their face, they appear to condemn, what conduct 
do they in fact condemn? When do they oblige a citizen 
to desist, and when do they authorize an officer to arrest? 
The effect of these provisions is to make the citizen guess, 
under pain of criminal penalty, the boundaries of his con­
stitutional freedom to use the streets. As this Court has 
aptly put it, this is “a difficult question which must neces­
sarily be dependent upon the facts of the particular case5’ 
(Anderson v. City of Albany, 321 F. 2d 649, 657 (5th Cir. 
1963)); see Cox v. Louisiana, 379 U. S. 536, 554-55 (1965).



12

Since these provisions make this uncertain constitutional 
boundary the line of criminality, they are obnoxious for all 
the reasons which have caused the United States Supreme 
Court to void similar statutes and ordinances which en­
croached overbroadly on constitutionally protected conduct.

First, by reason of the obscurity of the constitutional 
boundary itself, the ordinance gives no fair notice, “no 
warning as to what may fairly be deemed to be within its 
compass” (Mr. Justice Harlan, concurring in Garner v. 
Louisiana, 368 U. S. 157, 185, 207 (1961)); Herndon v. 
Lowry, 301 U. S. 242, 261-62 (1937); Winters v. New York, 
333 U. S. 507, 519-20 (1948); see Note, 109 U. Pa. L. Rev. 
67, 76 (1960).

Second, the ordinance remains “susceptible of sweeping 
and improper application,” NAACP v. Button, supra, 371 
U. S. at 433, furnishing in its overbreadth a convenient tool 
for “harsh and discriminatory enforcement by prosecuting 
officials against particular groups deemed to merit their 
displeasure,” Thornhill v. Alabama, supra, 310 U. S. at 
97-98, and inviting arbitrary, autocratic and harassing uses 
by the police. “It is enough [for invalidation] that a vague 
and broad statute lends itself to selective enforcement 
against unpopular causes” (NAACP v. Button, supra, at 
435).

Finally, the threat of serious penalties for any citizen 
who, in the service of an unpopular cause, guesses wrongly 
the boundaries of his constitutional freedoms (or is unable 
to persuade a state trial judge or jury to discredit the 
testimony of policemen that he did guess them wrongly) 
serves effectively to coerce the citizen to obey even lawless 
police orders and surrender through fear his constitutional 
rights to the free use of the streets. See Thornhill v. Ala­



13

bama, s-upra, at 97-98; Smith v. California, 361 U. S. 147, 
150-151 (1959); Cramp v. Board of Public Instruction, 368 
U. S. 278, 286-288 (1961); Bantam Boohs, Inc. v. Sullivan, 
372 U. S. 58, 66-70 (1963); Baggett v. Bullitt, 377 U. S. 360, 
378-379 (1964); Dombrowshi v. Pfister, 380 U. S. 479, 494 
(1965); and see United States v. National Dairy Prods. Co., 
372 U. S. 29, 36 (1963) (dictum). Plainly, prohibitions so 
written are bad on their face.19

The permit proviso does not save these prohibitions; 
rather it compounds the vagueness. The permit proviso 
states:

. . . provided, however, the City Council, in its discre­
tion, may grant special permission for parades and 
other unusual activities on the streets, when, in its 
opinion, such parades or other activities will not be 
distracting to the extent of disturbing the usual, normal 
and customary uses of the streets and would not con­
stitute a disturbance to the people living or conducting 
businesses thereon.

For two reasons, a citizen is left in doubt as to the neces­
sity of applying for a permit. First, the activities subject

19 This rationale was recently reiterated by the United States 
Supreme Court in Shuttlesworth v. City of Birmingham, 15 L. Ed. 
2d 176, 179 (1965), the Court stating:

Literally read, therefore, the second part of this ordinance 
says that a person can stand on a public sidewalk in Birming­
ham only at the whim of any police officer of that city. The 
constitutional vice of so broad a provision needs no demon­
stration. I t ‘does not provide for government by clearly 
defined laws, but rather for government by the moment-to- 
moment opinions of a policeman on his beat,’ Cox v. Louisiana, 
379 U. S. 536, 579 . . . (separate opinion of Mr. Justice 
Black). Instinct with its ever present potential for arbitrarily 
suppressing First Amendment liberties, that kind of law bears 
the hallmark of a police state.



14

to permit (“parades and other unusual activities on the 
streets”) are so uncertain that a citizen cannot ascertain 
whether he need apply. Whether or not the term “other un­
usual activities” is meant to he coextensive with the de­
scription of all the activities enumerated in the prohibi­
tory clauses above,20 the term remains so vague as to leave 
the citizen in doubt as to the necessity of applying for a 
permit.

Second, since the proviso pertains only to activities in 
the “streets”, a citizen venturing on the sidewalks must 
guess at peril of his liberty whether the term “streets” 
includes the sidewalks. The court below thought so, citing 
Miss. Code 1942, Section 8137(d) (ft. 86).21 But the matter 
is not free from doubt; inspection of the Uniform Traffic 
Regulation Code of the City of Jackson reveals that Sec­
tion 135 has a companion ordinance, Section 134, entitled 
“Certain Uses of Sidewalks Unlawful”, set forth Appen­
dix 1, p. 2a. Thus, a citizen (even a citizen-lawyer) might 
reasonably conclude that Section 135 has no application to 
sidewalks—that subject being regulated by Section 134.

The permit proviso is additionally vulnerable because 
an improper standard governs the discretion of the issuer 
of the permit. The City Council may grant a permit only 
when the activity “would not constitute a disturbance to 
the people living or conducting businesses [on the streets].”

20 If “other unusual activities” is meant to be coextensive with 
these prohibitions, then the vagueness of those prohibitions taints 
the proviso. If “other unusual activities” is not thus coextensive, 
then what does it mean?

21 The term “sidewalks” is defined in that section only for pur­
poses of the Mississippi Uniform Higlway Traffic Regulation Act 
Section 8126.



15

This is not the kind of standard approved by the United 
States Supreme Court in Cox v. New Hampshire, 312 U. S. 
569 (1941), namely, a standard based on considerations 
of time, place and manner.22 It does not focus on any 
physical obstruction of the streets. Instead, it reflects 
considerations condemned in Termmiello v. Chicago, 337 
U. S. 1 (1949), where the Supreme Court held that the First 
Amendment encompasses the right to “invite dispute”, “in­
duce a condition of unrest”, “create dissatisfaction with 
conditions as they are” or even “stir people to anger” (337 
U. S. at 4). Moreover, it gives ample rein to officials to 
shut off unpopular views and constitutes an “obvious danger 
to the right of a person or group not to be denied equal 
protection of the laws” (Cox v. Louisiana, 379 U. S. 536, 
557 (1965)).23

22 A standard which reflects the obviously sound policy that you 
cannot have two parades on the same corner at the same time.

23 This potential for mischief has not gone unrealized by the City 
of Jackson, see Part II, infra.



16

II.
Appellants Are Being Prosecuted for Conduct Pro­

tected by First Amendment Guarantees of Free Expres­
sion Pursuant to a Policy by the City of Jackson of 
Instant Suppression of Dissident Public Communication.

A. A ppellants W ere E ngaged in  the, E xercise o f T heir  
Federal C onstitutional R ight o f  Free E xpression .

Preliminarily, appellants wish to restate what this case is 
not about, lest the Court be misled by appellees’ invoking 
of an ordinance prohibiting “parading” in the “streets” into 
receiving an image of brass bands or lines of vehicles pro­
ceeding through city streets, snarling traffic.24

Such an image has absolutely no relationship to this 
case. The activities being suppressed did not occur in the 
“streets”—as that term is commonly understood—road­
ways for vehicles. Similarly misleading are references to a 
“parade”, in view of the normal connotations of that term. 
A “parade” connotes uniforms or costumes, musical instru­
ments, ranks and columns of strutting performers, a blar­
ing, ostentatious, “distracting” show. What a contrast to 
the “structured ceremonials of protest” 25 which occurred 
here!

24 As shown in Part I of this brief, the portions of the Jackson 
ordinance under which appellants have been arrested and charged 
are unconstitutional on their face for overbreadth and vagueness. 
Appellants’ conduct, established without substantial dispute in the 
record, disposes of any possible contention that appellants were 
engaged in “the sort of ‘hard-core’ conduct that would obviously 
be prohibited under any construction [of the ordinance].” Dom- 
browski v. Pfister, 380 U. S. 479, 491-92 (1965). Since this case 
involves only sidewalk marches and not, for example, street 
parades, the question need not be considered here whether certain 
sorts of activity in the street might constitute “hard-core” conduct 
punishable within the Dombrowski dictum even under an ordinance 
unconstitutional in the generality of its application.

25 Kalven, The Concept of the Public Forum, 1965 Supreme 
Court Review 6.



17

That appellants walked on the sidewalks appears to be 
conceded by the court below (B. 86): “It is true that most 
of this parading by most of the plaintiffs was done on the 
sidewalk. . . . ” Moreover, the record reveals that those 
walking on the sidewalks were quiet and orderly, obeyed all 
traffic signals and constituted no obstruction to vehicular or 
pedestrian traffic. See Statement of the Case, pp. 2-6.

As in Edwards v. South Carolina, 372 U. S. 229, 235 
(1963), “ [t]he circumstances in this case reflect an exer­
cise of . . . basic constitutional rights in their most 
pristine and classic form.” Nothing better illustrates the 
protected nature of appellants’ conduct than a considera­
tion of the facts of Edwards. There, the United States 
Supreme Court reversed state criminal convictions of pro­
test demonstrators under the following circumstances (372 
U. S. at 230, 235-236):

Late in the morning of March 2, 1961, the petitioners, 
high school and college students of the Negro race, 
met at the Zion Baptist Church in Columbia. From 
there, at about noon, they walked in separate groups 
of about 15 to the South Carolina State House grounds, 
an area of two city blocks open to the general public. 

# # # # #
The petitioners felt aggrieved by laws of South 
Carolina which allegedly “prohibited Negro privileges 
in this state.” They peaceably assembled at the site 
of the State Government and there peaceably expressed 
their grievances “to the citizens of South Carolina, 
along with the Legislative bodies of South Carolina.” 
Not until they were told by police officials that they 
must disperse on pain of arrest did they do more.



18

Even then, they bnt sang patriotic and religions songs 
after one of their leaders had delivered a “religious 
harangue”.

The facts of the two cases are virtually undistinguish- 
able, except for the legally irrelevant circumstance that 
although appellants here started out for the State Capitol, 
they never reached it.26 Edwards and other cases27 illus­
trate the principle that when a citizen goes upon the side­
walk, as long as he does not interfere with his neighbor’s 
enjoyment of that sidewalk, he is exercising a kind of First 
Amendment easement, the immemorial right of a free 
man.28 This principle was given classic expression by Mr. 
Justice Roberts in Hague v. CIO, 307 U. S. 496, 515 (1939):

Wherever the title of streets and parks may rest, they 
have immemorially been held in trust for the use of 
the public and, time out of mind, have been used for

26 The court below conceded the factual similarity of the cases, 
but failed to appreciate the constitutional significance of that simi­
larity (R. 85) :

The circumstances in this case were very similar to those 
present there, but in the case at bar these plaintiffs were 
undeniably guilty of violating this city ordinance which does 
not and did not in any manner or to any degree or extent 
impair or retard their enjoyment of any constitutional right.

27 See also, Fields v. South Carolina, 375 U. S. 44 (1963); 
Henry v. City of Rock Hill, 376 U. S. 776 (1964); Cox v. Louisiana, 
379 U. S. 536 (1965).

28 See Kalven, The Concept of the Public Forum, 1965 Supreme 
Court Review 11-12:

[I] n an open democratic society the streets, the parks and 
other public places are an important facility for public dis­
cussion and political process. They are in brief a public forum 
that the citizen can commandeer • the generosity and empathy 
with which such facilities are made available is an index of 
freedom.



19

purposes of assembling, communicating thoughts be­
tween citizens, and discussing public questions. Such 
use of the streets and public places has, from ancient 
times, been a part of the privileges, immunities, rights 
and liberties of citizens.29

B. T he City o f Jackson Has a P olicy o f  Instant 
Suppression  o f D issident C om m unication in  
P ublic Places.

In Part I, the susceptibility of prohibitions like the pedes­
trian provisions of Section 135 to “sweeping and improper 
application” (NAACP v. Button, 371 U. S. at 433) was dis­
cussed. The potential for mischief afforded by Section 135 
and other overbroad laws30 making punishable the peaceful 
expression of unpopular views has been fully realized in 
the campaign conducted by Jackson officials to instantly 
suppress any public expression of dissatisfaction with the 
status quo.

This campaign was documented in the 1963 Report of 
the United States Commission on Civil Rights, summarized
p. 112:

The official policy in both Jackson and Birmingham, 
throughout the period covered by the Commission’s 
study [1961-1963], was one of suppressing street dem­

29 Accord: Kunz v. New York, 340 U. S. 290, 293 (1951) ; see also 
Schneider v. State, 308 U. S. 147, 163 (1939) :

[T]he streets are natural and proper places for the dissemina­
tion of information and opinion; and one is not to have the 
exercise of his liberty of expression in appropriate places 
abridged on the plea that it may be exercised in some other 
place.

30 See Note 1, supra,, and accompanying text; Note 8, supra; 
Note 14, supra.



20

onstrations. 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 followed that policy and they were 
usually supported by local prosecutors and courts.

In 1963, protest demonstrations similar to those which 
occurred in this case precipitated a federal injunction suit 
seeking to put an end to Jackson’s policy of “instant arrest.” 
NAACP v. Thompson, supra. The compendious record 
made in NAACP v. Thompson depicts a pattern of peaceful 
protests undertaken by persons sympathetic to the cause 
of civil rights and a pattern of official responses, by the 
way of arrest, prosecution and harassment, to stifle and 
discourage the protests.

Also in 1963, this Court took judicial notice of Jackson’s 
official policy, refusing to be deceived by Jackson’s pro­
testations of innocent use of its police power and instead 
observing (United States v. City of Jackson, 318 F. 2d 1, 5 
(5th Cir. 1963)):

The City of Jackson and its officials blandly assert that 
the police are not enforcing segregation in the termi­
nals . . . [and that] the arrests just were for breaches 
of the peace, not because the Negroes arrested acted 
contrary to any police mandate the signs expressed or 
because the Negro passengers violated any Mississippi 
segregation law. This disingenuous quibble must rest 
on the assumption that federal judges are more naive 
than ordinary men. Perhaps they are. Holmes thought 
so. But in the sector of the law encompassed in the 
subject “Civil Rights”, case by case federal courts have



21

acquired a thorough education in “Sophisticated Cir­
cumvention”.

By June of 1965, when this case arose, this policy had so 
hardened that the United States Commission on Civil 
Bights could unequivocally state in Law Enforcement: A 
Report on Equal Protection in the South, 1965, p. 65 (foot­
notes omitted):

Police in Jackson adopted the policy of immediate 
arrest in dealing with protests. Arrests were made 
without any apparent effort to determine whether those 
arrested were engaged in constitutionally protected 
activity.

When nine college students staged a “sit-in” at the 
Jackson Public Library in March 1961, they were ar­
rested for breach of the peace. When hundreds of 
Freedom Eiders came to Jackson in 1961 challenging 
segregated transportation facilities, most of them were 
immediately arrested. When local Negroes demon­
strated in 1963 for improved job opportunities, de­
segregation of public accommodations and facilities 
(including schools) and the establishment of a biracial 
committee, they were arrested. When demonstrations 
were held in 1965 protesting the convening of a special 
session of the State Legislature to rewrite Mississippi 
voting laws, Jackson officials again reacted by arrest­
ing hundreds of demonstrators.

The fact that appellants have been arrested and are being 
prosecuted for peacefully walking, in a non-obstructive 
manner, on the sidewalks of an American city would be 
simply incredible were it not for the fact that the city is



22

Jackson and appellants are Negro and white civil rights 
workers and their sympathizers. To say that the “instant 
arrest” policy does not succeed misses the point, for a judi­
cial declaration of invalidity of any particular ordinance or 
statute employed or the fact that the convictions of those 
arrested and prosecuted will ultimately be reversed, see 
note 41, infra, hardly tarnishes the success of the policy. 
As will be considered more fully in Part IIIB, the impact 
of Jaekson’s program is to punish dissidents and suppress 
their dissent simply by exploiting the burdens of prosecu­
tion—burdens which economically weak and socially depen­
dent people cannot effectively bear or combat unless they 
receive timely protection from the courts of the United 
States.

III.
The Court Below Should Have Granted the Equitable 

Relief Prayed for by Appellants and Granted by This 
Court Pending Appeal.

Despite the showing made by appellants of the facial 
invalidity of the provisions of the ordinance under which 
they are charged, supra, Part I, and the showing of Jack- 
son’s wholesale abridgment of appellants’ exercise of their 
right of free expression, supra, Part II, the court below 
denied appellants’ motion for a preliminary injunction, ap­
parently on two related grounds:

(1) “On the facts in this case, [appellants] have not 
shown the presence or likelihood of irreparable damages 
[sic] as defined in Dombrowski” (R. 87);

(2) “28 U. S. C. A. Section 2283 clearly denies this Court 
the power to grant an injunction in this case” (R. 87).



23

The first81 ground of decision, appears to be a conclusion 
resolvable into three components: 31 32

(1) The provisions of Section 135 pertaining to pedes­
trians are constitutional;

(2) The City of Jackson is prosecuting appellants in 
good faith for unlawful conduct;

(3) Principles of judicial comity forbid the granting of 
any injunctive relief.

Only the third proposition is new, the first and second 
propositions having been considered in Parts I and II, 
supra, respectively.

Appellants contend in this Part III that comity does not 
bar the granting of any of the federal injunctive relief 
prayed for by appellants and granted by this Court pending 
appeal.33

31 The second ground of decision is shortly disposed of. Appel­
lants’ complaint was filed approximately two _ hours after the 
arrests of June 14, 1965, but several hours before charges were 
filed against them in state court. Thus, 28 U. S. (X §2283 is no 
bar to injunctive relief against the further prosecution of appel­
lants arrested on June 14th, since, at the time of the filing of 
appellants’ federal complaint, no “proceedings” were then pending 
against them within the intendment of Section 2283. Dombrowski 
v. Pfister, 380 U. S. 479, 484, footnote 2 (1965). Obviously, Section 
2283 does not bar injunctive relief against further prosecution of 
appellants arrested and charged subsequent to June 14th.

32 What clearly could not be a component of the court’s conclusion 
is the proposition that appellants could, without irreparable injury, 
abide the court’s hearing on a final injunction; in a case such as 
this, involving perishable rights of free speech on current public 
issues, injunctive relief is either prompt or worthless.

33 This Court’s injunction pending appeal, in relevant part, re­
strained appellees from :

(1) Further enforcement of the [pedestrian provisions of 
Section 135] . . .

(footnote continued on next page)



24

A. T lie Court B elow  Should  H ave Granted a P relim inary  
Injunction  A gainst A ppellees, R estrain ing T hem  From  
E nforcing  A gainst A ppellants the P rovisions o f Section  
135  o f the U niform  Traffic R egulation  Code o f the  
City o f  Jackson Pertain ing to Pedestrians.

The responsibility of federal courts to enjoin state prose­
cutions based upon statutes or ordinances void on their face 
as overbroad and vague regulations of expression was set­
tled by the United States Supreme Court in Dombrowski 
v. Pfister, 380 U. S. 479 (1965). The Court stated the matter 
simply and unequivocally (380 U. S. at 490-92):

[AJppellants have challenged the statutes as overly 
broad and vague regulations of expression. We have 
already seen that where, as here, prosecutions are ac­
tually threatened, this challenge, if not clearly friv­
olous, will establish the threat of irreparable injury 
required by traditional doctrines of equity. We believe 
that in this case the same reasons preclude denial of 
equitable relief pending an acceptable narrowing con­
struction . . . [T]his cannot be satisfactorily done 
through a series of criminal prosecutions . . .

On this view of the “vagueness” doctrine, it is readily 
apparent that abstention serves no legitimate purpose 
where a statute regulating speech is properly attacked 
on its face, and where, as here, the conduct charged

(2) Further interference, through prosecution under color of 
other laws or ordinances, with appellants’ rights of peace­
ful communication or expression on the public sidewalks 
of the City of Jackson . . .  by peacefully walking two 
abreast on the public sidewalks of the City of Jackson, 
observing all traffic signals, walking close to the building 
line or close to the curb so as not to interfere with or 
obstruct other pedestrian traffic on the sidewalks, includ­
ing the carrying of posters or signs expressing views on 
public issues.



25

in the indictments is not within the reach of an accept­
able limiting construction readily to be anticipated as 
the result of a single criminal prosecution and is not 
the sort of “hard-core” conduct that would obviously 
be prohibited under any construction. In these circum­
stances, to abstain is to subject those affected to the 
uncertainties and vagaries of criminal prosecution, 
whereas the reasons for the vagueness doctrine in the 
area of expression demand no less than freedom from 
prosecution prior to a construction adequate to save 
the statute.34

B. T he Court Below  Should  Have Granted a Prelim inary  
In junction  A gainst A ppellees, R estraining Them  From  
Interfering, by Arrest and Prosecution , W ith the Exer­
cise o f A ppellants’ Federal C onstitutional R ight to  
Com m unicate T heir Views on  P ublic Issues by Peace­
fu lly  W alking Two Abreast on the P ublic Sidewalks 
of the City o f  Jackson, O bserving All Traffic Signals 
and O bstructing N either Vehicular Nor Pedestrian  
Traffic.

The policy of the City of Jackson of instant suppression 
of communication seeking to dispel the myth that Negroes
are satisfied with the racial status quo does not depend upon 
the invocation of any single statute or ordinance. An older 
simply restraining appellees from invoking Section 13o 
leaves them free to resort to Section 13435 36 or Section 59433

34 Counsel for appellants are aware of no authoritative judicial 
construction of Section 135.

35 Set forth Appendix 1, p. 2a.
36 Set forth Appendix 1, p. 2a; this ordinance was originally 

thought by appellants to be the basis of their prosecutions, see note 
8, supra.



26

or the breach of the peace statute37 or whatever,38 notwith­
standing these provisions are invalid for most of the same 
reasons considered in Part I.

If appellants’ right of free expression is to be vouch­
safed, a federal injunction must be granted protecting ap­
pellants’ federally guaranteed conduct itself—not merely 
barring a single vehicle of official interference with it. 
Because of Jackson’s Hydra-headed attack on protected 
freedoms of expression, a federal response adequate to 
insure that appellants’ right will be presently exercisable 
is compelled, for to secure the right to express one’s views 
after the event has passed from the public scene is an empty 
victory which in no way restores to the citizen the precious 
right he has lost. Bather, it deepens his frustration of faith 
in the protection of orderly processes of law; and destruc­
tion of this faith irreparably undermines the common con­
sent of the governed, upon which rests the stability of 
democratic government and the constitutional rights of all. 
“For speech concerning public affairs is more than self- 
expression; it is the essence of self-government” (Garrison 
v. Louisiana, 379 U. S. 69, 74-75 (1964)).

Ample authority exists for this kind of injunctive relief. 
Its issuance has been authorized by this Court and by dis­
trict courts in this Circuit. In Kelley v. Page, 335 F. 2d 114, 
118-19 (5th Cir. 1964), a suit brought by protest demon­
strators against city officials of Albany, Georgia to restrain 
them from unlawful interferences with their demonstra­

37 This old stand-by is always available for duty, see note 14, 
supra.

38 Including, of course, more juvenile delinquency proceedings 
against youthful demonstrators.



27

tions, this Court, in reversing a judgment of the district 
court denying injunctive relief, said:

First, as to the rights of plaintiffs, those espousing 
civil rights through the Movement, it has long been 
settled, indeed from the beginning, that a citizen or 
group of citizens may assemble and petition for redress 
of their grievances. First Amendment, U. S. Const. . . . 
Edwards v. South Carolina . . . .  A march to the City 
Hall in an orderly fashion, and a prayer session within 
the confines of what plaintiffs seek would appear, with­
out more, to be embraced in this right. . . . And these 
rights to picket and to march and to assemble are not 
to be abridged by arrest or other interference so long 
as asserted within the limits of not unreasonably inter­
fering with the right of others to use the sidewalks 
and streets, to have access to store entrances, and 
wfhere conducted in such manner as not to deprive the 
public of police and fire protection . . .

In short, those engaged in the Albany Movement 
have definite well defined constitutional rights. They 
must be accorded where claimed, but in a manner that 
will accommodate rights of other citizens to the end 
that the rights of all may be preserved.

Upon remand, the district court granted injunctive relief, 
in terms strikingly similar to the injunctive relief sought 
in this case by appellants and granted by this Court pend­
ing airpeal. The district court enjoined City of Albany 
officials:

From denying to Negro citizens the right to peacefully 
protest against state enforced racial segregation in the 
City of Albany, Georgia by peacefully walking two



28

abreast upon the public sidewalks of the City of Albany, 
observing all traffic signals, walking close to the build­
ing line or close to the curb so as not to interfere with 
or obstruct other pedestrian traffic on the sidewalk. . . . 
Anderson v. City of Albany, 9 Race Rel. L. Rep. 1124, 
1131 (M. D. Ga., August 18, 1964).

Also, in Williams v. Wallace, 240 F. Supp. 100 (M. D. Ala. 
1965), Alabama state officials were enjoined by a federal 
district court from interfering with the right of the plain­
tiffs to peacefully walk upon the highways of the State of 
Alabama to protest racial discrimination in the electoral 
processes of that State.

Substantial considerations support here the conclusion 
reached in the cases above and in Dombrowski v. Pfister 
(380 U. S. at 487) that “ [t]he chilling effect upon the 
exercise of First Amendment rights may result from 
the fact of the prosecution [s], unaffected by the prospects 
of [their] success or failure.”

First, persons under prosecution are restrained of their 
liberty pending trial and appeal, or, in the alternative, com­
pelled to post financial security for their appearance. If 
professional bonds are not available39 or availed of, their

39 See United States Commission on Civil Rights, Law Enforce­
ment: A Report on Equal Protection in the South, 1965, pp. 70-71 
(footnotes omitted) :

The bail problems faced by demonstrators in Jackson in 
1963 were particularly acute. All property available for 
property bonds had been exhausted in the 1961 Freedom Ride 
cases and no local surety company was willing to place bonds 
for demonstrators. Nor was it possible to obtain bonds from 
out-of-state companies. It is the policy of Mississippi courts 
to require that such companies obtain the counter-signature 
of a local agent, and local agents refused to countersign bonds 
for demonstrators.



29

property or that of their friends or relatives is encumbered. 
If available and availed of, a defendant pays successive 
fines—in the form of unrecoverable bond premiums—as the 
cost of proceeding court by court until his federal claim is 
recognized. The defendant’s time and money—if he has 
it—and those of his lawyer’s are devoured by his defense. 
His misstep or his lawyer’s in their progress through the 
criminal proceedings may default his substantively valid 
federal claims; or those claims, valid in fact, may be de­
stroyed by unsympathetic adverse fact-findings by the state 
courts. He may be discriminatorily sentenced by politically 
sensitive state courts.40 In any event, as unresolved criminal 
charges hang over his head for years,41 his mobility, ac­

Thus, the entire amount of bail had to be posted in cash. 
When an arrest was made for violating a city ordinance (such 
as the parade ordinance) bail was set at $100 for appearance 
at trial in police court; $125 more was required to appeal 
for a trial de novo in county court; and, finally, an additional 
$1,275 was set for an appeal to the circuit court. Thus, each 
case appealed to the circuit court required $1,500 bail bond. 
Although State statute permitted a maximum bail of $500 
for appearance at a trial de novo, the amount required of 
demonstrators—$225—was substantially larger than that re­
quired for cash bonds in noncivil rights cases.

40 See United States Commission on Civil Rights, Law Enforce­
ment: Equal Protection in the South, 1965, p. 78 (footnotes 
omitted) :

Most demonstrators in Jackson were convicted of either a 
misdemeanor under State law or violation of city ordinances. 
In both instances, maximum penalties were imposed. The 
sentence for a misdemeanor was $500 and six months, for 
ordinance violation, $100 and 30 days. Jail sentences were 
suspended on pleas of nolo contendere. These sentences were 
substantially greater than the sentences _ imposed for com­
parable offenses which did not involve civil rights.

41 In February and March, 1964, the Supreme Court of Missis­
sippi reached, and affirmed, convictions in harassment prosecutions 
arising out of the May, 1961 Freedom Rides. See Thomas v. State,



30

ceptability at educational and other institutions (including 
the national armed services), eligibility for various state- 
conferred benefits and his willingness to risk the further 
displeasure of the state authorities are clogged.42

Second, much more is involved in a prosecution aimed at 
conduct protected by the First Amendment than the pun­
ishment of an individual defendant for a single past act. 
The inevitable consequence of such a prosecution is to deter 
the defendant and all others like him from engaging in the 
conduct which it is the purpose of the First Amendment to 
protect. In numerous contexts involving federal guarantees

160 So. 2d 657 (Miss. 1964) ; Farmer v. State, 161 So. 2d 159 (Miss. 
1964), and companion cases; Knight v. State, 161 So. 2d 521 
(Miss. 1964). And more than another year was to pass before the 
Supreme Court of the United States reached, and reversed, these 
convictions. Thomas v. Mississippi, 380 U. S. 524 (1965). Compare 
Edwards v. South Carolina, 372 IJ. S. 229 (1963) (two years from 
arrest to Supreme Court reversal of conviction) ; Fields v. South 
Carolina, 375 U. S. 44 (1963) (three and a half years from arrest 
to Supreme Court reversal of conviction) ; Henry v. Bock Hill, 
376 U. S. 776 (1964) (more than four years from arrest to Supreme 
Court reversal of conviction).

Circuit Judge Rives would have granted federal injunctive relief 
in the Freedom Rider cases. His dissent in Bailey v. Patterson, 199 
F. Supp. 595, 609, 616 (S. D. Miss. 1961), judgment vacated, 369 
U. S. 31 (1962), pointed out that the only alternative to such relief 
was:

. . . that a great number of individual Negroes would have 
to raise and protect their constitutional rights through the 
myriad procedure of local police courts, county courts and 
state appellate courts, with little prospect of relief before they 
reach the United States Supreme Court,

Requests to consolidate the Freedom Rider cases for trial were 
refused by the city prosecutor, and both the Circuit and Supreme 
Courts of Mississippi denied motions to consolidate on appeal. 
Record in NAACP v. Thompson, supra, pp. 1336-37.

42 See Amsterdam, Criminal Prosecutions Affecting Federally 
Guaranteed Civil Rights: Federal Removal and Habeas Corpus 
Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev 793 
796-99 (1965).



31

of personal freedoms, the United States Supreme Court 
has recognized that “the threat of sanctions may deter their 
exercise almost as potently as the actual application of 
sanctions.” NAACP v. Button, 371 U. S. 415, 433 (1963); 
see Smith v. California, 361 U. S. 147, 151 (1959); Cramp 
v. Board of Public Instruction, 368 U. S. 278, 286-88 (1961); 
Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 66-70 (1963); 
Baggett v. Bullitt, 377 U. S. 360, 378-79 (1964). Particu­
larly during the pendency of a prosecution, the assertion 
of state prohibitive power which it embodies and advertises, 
overhangs, threatens and represses conduct of the kind 
prosecuted. Federal protection of First Amendment con­
duct, if it is to be meaningful, must include protection 
against this repression. “The assumption that defense of 
a criminal prosecution will generally assure ample vindica­
tion of constitutional rights is unfounded in such cases 
(.Dombrowski v. Pfister, 380 U. S. at 486).

Third, where the federal rights claimed by potential state 
criminal defendants go to the very roots of their prosecu­
tions, not merely to their form, the state’s interest in re­
taining the prosecutions within its own courts is not 
weighty. If the federal right at stake here is to be made 
meaningful, the state must eventually relinquish or be de­
prived of the power to begin criminal proceedings which 
repress it. Thus a relaxation of the rules of comity has been 
observed by this Court in cases, such as this, arising under 
42 U. S. C. §1983 and implicating substantive federal guar­
antees, since that statute’s policy to fully protect federal 
constitutional rights embodies a “superior federal interest” 
(Leiter Minerals v. United Stales, 352 U. S. 220, 226 
(1957)). In Browder v. Gayle, 142 F. Supp. 707, 713 (M. D. 
Ala. 1956) (three-judge court), afPd per curiam, 352 U. S. 
903 (1956), Circuit Judge Rives, for the Court, stated:



32

The defendants . . . insist that even if the Federal 
court has jurisdiction, it should, in its discretion as a 
court of equity, and for reasons of comity, decline to 
exercise such jurisdiction until the State courts have 
ruled on the construction and validity of the statutes 
and ordinances. The short answer is that the doctrine 
has no application where the plaintiffs complain that 
they are being deprived of constitutional civil rights, 
for the protection of which the Federal courts have a 
responsibility as heavy as that which rests on the 
State courts.

This Court followed Browder v. Gayle in Morrison v. 
Davis, 252 F. 2d 102, 103 (5th Cir. 1958):

This is not such a case as requires the withholding 
of Federal court action for reason of comity, since for 
the protection of civil rights of the kind asserted, Con­
gress has created a separate and distinct Federal cause 
of action. 42 U. S. C. A. §1983. Whatever may be the 
rule as to other threatened prosecutions, the Supreme 
Court, in a case presenting an identical factual issue, 
affirmed the judgment of the trial court in the Browder 
case in which the same contention was advanced. To 
the extent that this is inconsistent with Douglas v. 
City of Jeannette, Pa., 319 U. S. 157, 63 S. Ct. 877, 
87 L. Ed. 1324, we must consider the earlier case modi­
fied.43

Of course, not every §1983 suit justifies immediate federal 
intervention; “for example, to take an obvious case, when

43 See also, Bush v. Orleans Parish School Board, 194 F. Supp. 
182, 185 (E. D. La. 1961) (three-judge court) aff’d per curiam, 368 
U. S. 11 (1961).



33

a defendant argues that state proceedings should be halted 
while the federal court considers the validity of a search 
and seizure” (Wisdom, Circuit Judge, dissenting in Dom- 
browski v. Pfister, 227 F. Supp. 556, 569, 579 (E. D. La. 
1964), rev’d, 380 U. S. 479 (1965)). On the other hand, the 
above considerations are presented in their most critical 
form in a case such as this, where multiplicitous state prose­
cutions threaten to place an enormous cumulative burden44 
on the exercise of substantive federal rights unless “a single 
suit . . . finally settles the issue once and for all” (Rives, 
Circuit Judge, dissenting in Bailey v. Patterson, supra, 199 
F. Supp. at 616, see Note 41, supra). In such a setting this 
Court’s equation “prosecution is punishment” (Dilworth v. 
Riner, 343 F. 2d 226, 231 (5th Cir. 1965)) finds its truest 
application.

From the foregoing considerations emerges the conclu­
sion that the only truly effective relief in this case is an 
injunction barring any official45 interference, in whatever 
form, with appellants’ constitutionally protected activities. 
This conclusion stands the test of a larger perspective, for 
it is no hyperbole to say that the critical issues of human 
liberty in this country today are not issues of rights, but 
of remedies. The American citizen has had a right to a 
desegregated school since 1954 and to a desegregated jury 
since at least 1879, but schools and juries throughout vast 
areas of the country remain segregated. The American

44 For example, the bail bill to the “Movement” here amounted 
to more than fifty thousand dollars, payable in cash, see Note 39, 
supra.

45 It goes without saying that appellees cannot wink at unofficial 
interference; see Kelley v. Page, 335 F. 2d 114, 119 (5th Cir. 1964) : 
“Of course, it should be added, that those claiming these rights 
[to picket, to march and to assemble] are entitled to police pro­
tection throughout the course thereof.”



34

citizen lias a right of free expression, but he may be ar­
rested, jailed, fined under the guise of bail and put to every 
risk and rancor of the criminal process if he expresses him­
self unpopularly. The right is there on paper; what is 
needed is the machinery to make the paper right a practical 
protection. In 42 U. S. C. §1983, Congress created some 
part of that machinery; it remains to make the machinery 
work to its full potential. If it does not, it is merely delu­
sive to suppose that the “basic guarantees of our Constitu­
tion are warrants for the here and now . . . ” Watson v. 
Memphis, 373 U. S. 526, 533 (1963).

C. T h e Court B elow  Should  H ave Granted a P relim inary  
Injunction  A gainst A ppellees, R estrain ing T hem  From  
A rresting and Prosecuting A ppellants fo r  the P urpose  
o f H arassing T hem  and D iscouraging T hem  From  Con­
tinu ing  T heir P eacefu l P rotest A ctivities; A lternatively, 
at the Very Least, the Court B elow  Should  Have 
Granted A ppellants an Evidentiary H earing to  Make 
Their Case on  T his P oint.

Dombrowski v. Pfister, supra, makes unmistakably clear 
the power and duty of a federal court to enjoin the enforce­
ment of state statutes or ordinances “applied for the pur­
pose of discouraging protected activities” (380 U. S. at 
490).

Although the record is admittedly scanty on this point 
(since Judge Cox refused appellants an evidentiary hearing 
and decided the motion on affidavits), Judge Cox neverthe­
less found that appellants were being prosecuted “in perfect 
good faith” (R. 87). The record hardly supports this find­
ing, containing as it does only self-serving allegations of 
good faith by appellees (R. 28). On the other hand, if this 
Court should find that the record does not support appel­



35

lants’ contention that they are being prosecuted “in bad 
faith to impose continuing harassment in order to discour­
age [their] activities” (380 TJ. S. at 490), then this Court 
should reverse and remand for an evidentiary hearing on 
this point. This is so, because only through cross-examina­
tion of officials of the City of Jackson can appellants pierce 
appellees’ disingenuous protestations of innocence.46

As Circuit Judge Brown stated, concurring in Hillegas 
v. .Sams, 349 F. 2d 859, 863 (5th Cir. 1965):

Thus we have now passed the point where Federal 
Courts can refuse to hear evidence in support of a 
factually detailed claim that a state criminal prosecu­
tion has been initiated to. effectuate [a] racially moti­
vated denial of constitutional rights. By civil injunc­
tion and removal we recognize that this much interfer­
ence with state criminal prosecutions is the price we 
pay under the Supremacy Clause.

And, if more authority were needed, Dombrowski itself 
requires an evidentiary hearing on the issue of good faith 
enforcement (380 U. S. at 497); see also Circuit Judge 
Wisdom’s dissent in Dombrowski below (227 F. Supp. at 
575).

46 Rives, Circuit Judge, dissenting in Cameron v. Johnson, 244 
F. Supp. 846, 856 (S. D. Miss. 1964), rev’d 381 U. S. 741 (1965) : 
“Without the benefit of oral testimony and cross-examination of 
the witnesses it is impossible to resolve the conflict of testimony.”



36

CONCLUSION

Commissioner Erwin N. Griswold’s eloquent addendum 
to the Civil Rights Commission’s 1965 report on law en­
forcement in the South has probed to the heart of what 
this case is all about:

As far as the ordinary Negro in the South is con­
cerned, justice is not administered by the Supreme 
Court of the United States, or even by the supreme 
courts of the several States. The place where State 
power makes its impact on him is when he encounters 
sheriffs, and their deputies, and police officers, and 
court officers, and magistrates and justices of the peace. 
From experience he tends to look on these officers of 
the State not as protectors but as persons to be feared. 
He knows that many of them will exercise the discre­
tion committed to them in such a way as to demean him 
and to deny him equality under the law. The Negro 
who knows his place ordinarily has little trouble—in 
his place. The Negro who is aware of the rights con­
ferred on him by the Constitution and laws of the 
United States—and those who seek to help him—re­
peatedly encounters the long arm of the local law de­
signed to intimidate him and to discourage him from 
any attempt to break out of the subservient place to 
which he has been assigned by the practices and the 
customs of the dominant elements of the community.

This injustice appears in mass arrests, such as those 
of the Freedom Riders who sought only to assert a 
simple citizen’s right. It is found in the decision 
to arrest, or not to arrest, when a small group of 
Negroes walking to register to vote becomes an illegal 
parade... .



37

Those persons engaged in the cause of civil rights in the 
South—those persons who do not “know their place”—look 
to federal courts as natural havens from repression of their 
federal constitutional rights. They know, as this Court 
knows, that if these rights are to be “present” rights (as 
the Supreme Court has said they are, Watson v. Memphis, 
373 U. S. 526, 533 (1963)), they must he vouchsafed by the 
timely intervention of federal courts.

Therefore, for all the foregoing reasons, appellants re­
quest the Court to reverse the judgment of the court below 
and remand the case to it with instructions to issue an 
injunction against appellees as prayed for in the complaint 
and as granted by the Court pending appeal.

Respectfully submitted,

Carsie A. H all

H enry M. A ronson

538% North Farish Street 
Jackson, Mississippi 39202

J ack Greenberg

Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

J ohn H onnold, J r.
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Appellants

Of Counsel
A nthony G. A msterdam



38

CERTIFICATE OF SERVICE

I hereby certify that on January .......... , 1966, I served
a copy of the foregoing Brief for Appellants on Thomas 
H. Watkins, Esq., Post Office Box 650, Jackson, Mississippi, 
attorney for appellees, by mailing same to him at the above 
address by United States air mail, postage prepaid.

Attorney for Appellants



APPENDICES



la

APPENDIX 1
O rdinances o f  the City o f  Jackson Involved

Section 135 of the Uniform Traffic Begulation Code of 
the City of Jackson:

S ection 135. Certain U ses of S treets U nlawful

It shall he unlawful for any person to operate, or 
cause to he operated, any unusual type of vehicle dif­
fering from vehicles ordinarily and customarily ap­
pearing on the street; or any vehicle from which sing­
ing, shouting and the like disseminate, or from which 
is disseminated any loud or unusual noises whatsoever; 
or from which is thrown or from which falls any debris, 
refuse or rubbish of any kind; or to conduct or par­
ticipate in any parade or marching in which floats, 
banners, placards or other distracting agencies, noises, 
objects or vehicles are used; and for any person to 
engage in shouting, singing, orating, speaking or any 
other distracting activity of any kind on any of the 
public streets and thoroughfares of the City of Jackson, 
provided, however, the City Council, in its discretion, 
may grant special permission for parades and other 
unusual activities on the streets, when in its opinion, 
such parades or other activities will not be distracting 
to the extent of disturbing the usual, normal and cus­
tomary uses of the streets and would not constitute a 
disturbance to the people living or conducting busi­
nesses thereon.



2 a

Section 134 of the Uniform Traffic Regulation Code of the 
City of Jackson:

S ection 134. Certain U ses op S idewalks U nlawful

It shall be unlawful for any merchant or other person 
to expose his goods, wares and merchandise or other 
property for sale, display, advertisement or any other 
purpose on said sidewalks; and for any person to move 
or stand on said sidewalks carrying banners, placards, 
signs and the like; and for any person to throw nails, 
tacks and the like, or debris of any kind on said side­
walks; and to engage in any form of speech making, 
preaching, singing and any other means of disseminat­
ing loud or unusual noises for the purpose of attracting 
the attention of people in the normal pursuit of daily 
living on any of the sidewalks in the City of Jackson. 
Provided, however, the. Council of the City of Jackson, 
in its discretion, ma}7 grant a special permit for any 
person to conduct religious activities on such sidewalks 
when and if it appears to the Council that such activi­
ties would not be distracting so as to hamper the right­
ful and proper use of said streets and sidewalks.

Section 594 of the Code of Ordinances of the City of 
Jackson:

594. That is shall be unlawful for any person, firm 
or corporation to have any parade along, over, or upon 
any street or avenue of the City of Jackson, or to use 
by driving over or across or upon any of the streets 
or avenues of the City of Jackson, Mississippi, without 
first obtaining a permit from the Mayor for such 
parade, and providing further that any person, firm, 
corporation, or association shall not use any other 
streets or avenues than those designated.



3a

APPENDIX 2 

Supplemental Complaint

[Caption Omitted]

M otion fo r  Leave to F ile Supplem ental Com plaint

Pursuant to Rule 15(d) of the Federal Rules of Civil 
Procedure, plaintiffs hereby move the Court for leave to 
file the appended Supplemental Complaint, and would show 
unto the Court the following:

1. At the time of the filing of plaintiffs’ complaint and 
amended complaint on June 14, 1965, attorneys for plain­
tiffs believed and alleged (see Amended Complaint, Para­
graph VI(a)) that plaintiffs were charged under Sections 
594 and 595 of the Ordinances of the City of Jackson.

2. On June 17, 1965, Melvyn Zarr, Esq., an attorney fox- 
plaintiffs, learned from defendant Travis that the ordinance 
under which plaintiffs are charged is Section 135 of the 
Uniform Traffic Regulation Code of the City of Jackson. 
(See Affidavit appended to Supplemental Complaint.)

3. Plaintiffs desire to supplement their complaint and 
amended complaint to reflect the facts stated in Paragraphs 
1 and 2 above.

W herefore, plaintiffs pray the Court for leave to file the 
appended Supplemental Complaint.

Respectfully submitted,
[Attorneys for Plaintiffs]

[Certificate of S ervice]



4a

Supplemental Complaint

[Caption Omitted]

To the Complaint and Amended Complaint in this cause, 
plaintiffs hereby add the following:

VI
To Paragraph VI(a) is added:

Plaintiffs originally alleged, upon information and 
belief, that they are charged with parading without 
a permit in violation of Sections 594 and 595 of the 
Ordinances of the City of Jackson. Attorneys for plain­
tiffs are presently advised by defendant Travis (see 
affidavit of attorney Zarr appended hereto) that they 
are charged with parading without a permit in viola­
tion of Section 135 of the Uniform Traffic Regulation 
Code of the City of Jackson, a certified copy of which 
is appended hereto.

To Paragraph VI(b) is added:
Section 135 of the Uniform Traffic Regulation Code 

of the City of Jackson, passed December 21, 1965, 
under which plaintiffs presently understand that they 
are charged, is violative on its face and as applied 
of plaintiffs’ rights under the First and Fourteenth 
Amendments to the Constitution of the United States.

P eayer

Plaintiffs add to Paragraph (2) of their prayer the 
following:



5a

Issue a preliminary and permanent injunction re­
straining defendants from enforcing against them Sec­
tion 135 of the Uniform Traffic Regulation Code of 
the City of Jackson, and declare said ordinance null 
and void.

Respectfully submitted,

[Attorneys for Plaintiffs]



6a

S tate of Mississippi 
County of H inds

Affidavit

Melvyn Zarr, being duly sworn, hereby deposes and says:

1. He is one of the attorneys for plaintiffs in the case 
of Gfuyot, et al. v. Pierce, et al., Civil Action No. 3754, in 
this Court.

2. On June 17, 1965, at approximately 10:00 a.m., he 
was informed by Jack Travis, Esq., City Attorney for the 
City of Jackson, that the ordinance under which plaintiffs 
in the above action are charged is Section 135 of the Uni­
form Traffic Regulation Code of the City of Jackson.

/ s /  Melvyn Zarr

[A ttorney’s V erification]



38