Walker v. City of Birmingham Reply Brief

    In th e

(Enitrt ni %  Untteft dtateR
October Term, 1966 

No. 249

W yatt  T ee W alk eb , M abtin  L u th er  K ing , 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.

Cit y  of B ir m in g h a m , a Municipal Corporation 
of the State of Alabama.

ON W RIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA

REPLY BRIEF

J ack  Greenberg 
J ames M. N abrit, III 
N orman  C. A m aker  
L eboy D . Clark  
Charles S teph en  R alston 
M ichael  H enry

10 Columbus Circle
New York, New York 10019

A rt h 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 arr y  H. W achtel  
B e n ja m in  S piegel

598 Madison Avenue 
New York, New York

Of Counsel



Isr th e

(Emtrt of %  lUttfrd §>Mm
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 bernath 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.

City  of B ir m in g h am , a Municipal Corporation 
of the State of Alabama.

REPLY BRIEF

1. The City has argued that the Court applied a rule 
that the invalidity of an injunction may not be litigated 
in defense of a criminal contempt charge to the area of 
free speech in Iiowat v. Kansas, 258 U.S. 181. While we 
doubt that this is a proper reading of Iiowat, supra,1 the 
simplest answer to the City’s claim is that Iiowat was de­
cided at a time when the protections of the First Amend­
ment were deemed inapplicable to the States. In Prudential

1 The opinion of the Court in Iiowat v. Kansas, 258 U.S. 181, makes 
no reference to any defense grounded on freedom of speech. The de­
fendants in Howat attacked their convictions on the ground of the federal 
uneonstitutionality of a Kansas “ compulsory arbitration law.” The state 
courts sustained the injunctive power of the court on grounds independent 
of that statute. Inasmuch as the state court “ did not depend on the con­
stitutionality of that act for its jurisdiction or the justification of its 
order” (258 U.S. at 190), the Court concluded that the case was decided 
“ in the state courts on principles of general, and not Federal, law . . . ” 
(ibid.).



2

Ins. Go. v. Cheek, 259 U.S. 530, 543, the Court said that 
“neither the Fourteenth Amendment nor any other provi­
sion of the Constitution of the United States imposes upon 
the State any restriction about ‘freedom of speech’ , . . . ” 
Not until Gitlow v. Neiv York, 268 U.S. 652, 666, did a ma­
jority of the Court “ assume” that the due process clause of 
the Fourteenth Amendment protected free speech against 
infringement by the States. Only subsequent to Gitlow, 
supra, were there holdings that the First Amendment pro­
tections applied against the States.2

2. The Brief for Respondent (pp. 48-62) also argues 
that the contempt convictions should be sustained on the 
basis of conduct other than a violation of Birmingham City 
Code Section 1159, the law forbidding parades, proces­
sions, or demonstrations without a permit. The City claims 
that the conviction can be sustained on a conspiracy charge, 
on charges of congregating in mobs and of conduct calcu­
lated to cause breaches of the peace, and for violation of 
a battery of statutes and ordinances relating to pedestrian 
traffic.

It is sufficient answer that none of these charges were 
relied upon, or even mentioned by either of the courts be­
low.3 Both courts below relied on the theory that peti­

2 See, e.g., Fishe v. Kansas, 274 U.S. 380; Stromberg v. California, 283 
U.S. 359, 368; Dejonge v. Oregon, 299 U.S. 353, 364.

8 The City seeks support for its conspiracy theory in a statement by 
the trial court that petitioners made “ concerted efforts”  to violate the in­
junction. (Brief of Respondent, p. 19, note 9.) The quoted language does 
not support the City’s assertion that the court found a conspiracy. In­
deed, neither court below even used the word “ conspiracy.”

Nothing in either opinion below supports the notion that petitioners 
were convicted for violation of provisions enjoining congregating in mobs 
or conduct calculated to cause a breach of the peace. The trial court did 
not state that petitioners were charged with any such violations; it men­
tioned only the charges that they issued a press release containing deroga-



3

tioners violated the injunction’s prohibition against parades 
without permits (R. 420, 437-438). It would be impermis­
sible for this Court to affirm the petitioners’ contempt con­
victions on a ground on which the courts below did not 
choose to put the convictions and did not make any find­
ings. Garner v. Louisiana, 368 ILS. 157, 164. And, if the 
Supreme Court of Alabama had relied on the various 
grounds now relied on by respondent, it would have vio­
lated the principle of Cole v. Arkansas, 333 U.S. 196, by 
affirming a criminal conviction on appeal on the basis of 
charges never litigated at trial. See also, Shuttlesworth 
v. Birmingham, 376 U.S. 339 (per curiam). Furthermore, 
respondent’s claim merely reinforces petitioners’ objection 
that the injunction was vague and overbroad. We point 
out one example. If, as the City now claims for the first 
time, petitioners were convicted for violating Birmingham 
City Code sections 1142 or 1231 (Brief of Respondent, 
pp. 49, 79-80), the convictions obviously would be invalid 
under Shuttlesworth v. Birmingham, 382 U.S. 87, a case 
involving the very same two laws. Moreover, notwithstand­
ing the City’s rhetoric in referring* to mobs, riots, violence 
and disorder, there is simply no evidence that petitioners 
engaged in any such conduct. We submit that the descrip­
tion of the events of April 12 and April 14, 1963 in Peti­

tory statements about Alabama courts and the injunctive order and that 
they participated in parades without a permit (R. 420). The Alabama 
Supreme Court found a violation of the order on the basis of parades 
without a permit (R. 437-438), relying on a supposed concession in peti­
tioner’s brief in that court (ibid.).

The claim that petitioners’ convictions may be sustained on the theory 
that they violated a host of laws regulating pedestrian traffic and other 
matters (Brief of Respondent, pp. 49, 77-83) is insupportable. None of 
these laws was ever mentioned in this litigation before the City’s brief 
in this Court. It is absurd for the City to contend at this late date that 
petitioners were convicted for jaywalking, failing to keep to the right 
side of crosswalk, loitering or some similar violation, when no such claim 
was ever made or considered in any court below.



4

tioners’ Brief, pp. 16-22, fairly and completely describes 
the record.

Respectfully submitted,

H a r r y  H . W achtel

J ack  G-reenberg 
J ames M . N abrit, I I I  
N orman  C. A m aker  
L eroy D . Clark  
Charles S teph en  R alston 
M ichael  H enry

10 Columbus Circle
New York, New York 10019

A r th u r  D . S hores
1527 Fifth Avenue North 
Birmingham, Alabama

Orzell B illingsley , 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

B e n ja m in  S piegel
598 Madison Avenue 
New York, New York

Of Counsel



MEILEN PRESS INC. —  N. Y. 219