LeFlore v Robinson Reply Brief on Rehearing for Defendants-Appellees

    IIS' TH E

Mnxtzb (ta rt of
F O R  T H E  F IF T H  C IR C U IT , EN B A N C

No. 28632

J. L. LeFLORE, et al,,
Plaintiffs-Appellants,,

JAMES ROBINSON, et al,,
Defendants-Appellees,

REPLY BRIEF ON REHEARING FOR 
DEFENDANTS-APPELLEES

F eed G. C ollins , City Attorney 
City of Mobile 
P. 0. Bos 4492 
Mobile, Alabama 36601

W illiam  H. B bigham  
P. 0. Box 164 
Mobile, Alabama 36601

C harles S. R h y n e  
B rice W . R h y n e  
A lfred  J. T ig h e , Jr.

R h y n e  & R h y n e  
400 Hill Building 
839—17th Street, N.W. 
Washington, D. C. 20006



TABLE OF CONTENTS

PAGE

Reply Brief on Rehearing for Def'endants-Appellees 1

I— Supreme Court Holds That National Policy For­
bids Federal Court Intervention By Injunction Or 
Declaratory Judgment In State Court Prosecutions 2

II— Supreme Court Decisions Of February 23, 1971 
Require This Court To Dismiss This Action To 
Prevent Added Burdens On Federal Courts And 
The United States Supreme Court As Argued In
The Initial Brief Of Mobile ..................................  5
A. Appellants’ Contention That They Meet The

Test For Federal Intervention Set Out In The 
Recent U. S. Supreme Court Decisions Is With­
out Merit ............................................................  6

B. Is There A “ Case Or Controversy”  Pending
Regarding Ordinance No. 14-11? If So, Do The 
Recent U. S. Supreme Court Decisions Bar 
Federal Intervention? ........................................ 9

C. Decisions of February 23, 1971 Revised “ Chill­
ing Effect”  And “ Vagueness And Over­
breadth”  Concepts ...........................................  10

D. Freedman’s Pure Speech Ruling On Review
Not Applicable H ere ...........................................  13

E. This Court Should Not Enter The Legislative
Field .................................................................... 13

III— Supreme Court Decisions Since Younger, et al.,
And Other Developments Since That Time Confirm 
That The Decision Herein Must Be Vacated And
The Complaint Dismissed.......................................  17
A. Fifth Circuit Cases Decided On March 29, 1971 18



11

B. Cases In Other Circuits Applying The Absten­
PAGE

tion Doctrine ....................................................... 19
C. Other Developments...........................................  21

C onclusion  ......... . .....................................................................  22

T able op A u thobities  

Cases
ABC Boohs, Inc. v. Benson, 315 F. Supp. 695, U.S.

S. Ct. Docket No. 844, 39 L.W. 3423 ....................... 17, 20
Barlow v. Gallant, U.S. S. Ct. Docket No. 90, 39 L.W.

3423 ...........................................................................  17
Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45

(1941) ................................................   7
Boyle v. Landry, 91 S. Ct. 758 .......................... 1, 4, 8, 15, 20
Brown v. Fallis, 311 F. Supp. 548, U.S. S. Ct. Docket

No. 5412, 39 L.W. 3423 . ............................................ 17, 21
Buchanan v. Wade, U.S. S. Ct. Docket No. 290, 39

L.W. 3423 .......................................   17
Byrne v. Karalexis, 91 S. Ct. 777 ................................1, 4,13
Cantwell v. Connecticut, 310 U.S. 296 (1940) ...........  12
Cato v. Georgia, 302 F. Supp. 1143, U.S. S. Ct.

Docket No. 31, 39 L.W. 3423 .................................... 17,18
Chicago <& Southern Air Lines v. Waterman S. S.

Corp., 333 U.S. 103, 68 S. Ct. 431 (1948) ...............  15
Demich, Inc. v. Ferdon, 426 F. 2d 643, U.S. S. Ct.

Docket No. 500, 39 L.W. 3423 ................................  17, 20
DeRenzy v. Cahill,-426 F. 2d 643, U.S. S. Ct. Docket

No. 500, 39 L.W. 3423 .. ...........................................  17
Dombrowslci v. Pfister, 380 U.S. 479 (1965) . . . . . .10 ,  11,12
Douglas v. City of Jeannette, 319 U.S. 157 (1943) . . .  7
Dyches v. Ryan, U.S. S. Ct. Docket No. 5164, 39 L.W.

3423 ...........................................................................  17
Dyson v. Stein, 91 S. Ct. 769 ........................ 1, 4, 8, 9, passim



Embry v. Allen, 422 F. 2d 1158, U.S. S. Ct. Docket
No. 5539, 39 L.W. 3424 ...........................................  17,19

Ex parte Young, 209 U.S. 123 (1908) ........................  7
Fenner v. Boykin, 271 U.S. 240 (1926)....................... 7
Fernandes v. Mackell, 91 S. Ct. 764 ...................1,18, 19, 20
Freedm.an v. Maryland, 380 U.S. 51, 13 L. Ed. 2d 649 

(1965) ......................................................................  13
Geiger v. Jenkins, 316 F. Supp. 370, U.S. S. Ct.

Docket No. 5952, 39 L.W. 3423 ................................  17,19
Goodman v. Wheeler, 306 F. Supp. 58, U.S. S. Ct. 

Docket No. 102, 39 L.W. 3423 ..................................  17
Ilosey v. City of Jackson, 309 F. Supp. 527, U.S. S.

Ct. Docket No. 134, 39 L.W. 3423 ............................  17,19
Hunter v. Allen, 422 F. 2d 1158, U.S. S. Ct. Docket 

No. 5539, 39 L.W. 3423 .............................................  17,18
In Re Wright, 251 F. Supp. 880 (M.D. Ala. 1965) . . . .  9
Johnnie Reb’s Book <& Card Shop v. Slaton, U.S. S.

Ct. Docket No. 217, 39 L.W. 3423 ............................  17
Landry v. Daley, 280 F. Supp. 938 (D.C. N.D. 111.

1968) .........................................................................  14-15
LeClah v. O’Neil, U.S. S. Ct. Docket No. 112, 39 L.W.

3423 ...........................................................................  17
Marbury v. Madison, 5 U.S. (1 Crancli) 137, 2 L. Ed.

60 (1803) ....................................................................  14
McGrew v. City of Jackson, 307 F. Supp. 751, U.S.

S. Ct. Docket No. 116, 39 L.W. 3423 ....................... 17,18
Natali v. San Francisco, 426 F. 2d 643, U.S. S. Ct.

Docket No. 500, 39 L.W. 3423 .................................... 17
North v. Greene, Dist. Ct. No. 413-17, March 18, 1971,

Dist. of Columbia....................................................... 21
Ohio v. Wyandotte Chemicals Corporation, U.S. S.

Ct. Docket No. 41, 39 L.W. 4323, March 23, 1971 .. 21
Pauling et al. v. McNamara et al., 331 F. 2d 796

(1964), cert. den. 377 U.S. 933 .................................  15
Peres v. Ledesma, 91 S. Ct. 674 ............................ 1, 3, 13,18
Porter v. Kimsey, 309 F. Supp. 993, U.S. S. Ct. 

Docket No. 5462, 39 L.W. 3423 ................................  17,18

I l l
PAGE



IV

Rollins v. Shannon, 292 F. Supp. 580, U.S. S. Ct. 
Docket No. 5013, 39 L.W. 3423 ..............................  17, 20

Samuels v. Mackell, 91 S. Ct. 764 ........................ 1, 3,10,18,
passim

Schneider v. State, 308 U.S. 147 (1939) .....................  12
Shevin v. Lazarus, U.S. S. Ct. Docket No. 43, 39 L.W.

3423 ...............................................................................  17
Stefanelli v. Minard, 342 U.S. 1 1 7 ............................  18
Stein v. Bachelor, 300 F. Supp. 602 (N.D. Tex. 1969) 9
United Mine Workers of America, Dist. 12 v. Illinois 

Bar Ass’n., 389 U.S. 217 (1967) ................................... 12
Wade v. Buchanan, U.S. S. Ct. Docket No. 289, 39

L.W. 3423 ......................................................................  17
Watson v. Buck, 313 U.S. 387 (1941) ............................ 7
Wheeler v. Goodman, 306 F. Supp. 58 (Docket No.

102) .................................................................................................  19
Wright v. City of Montgomery, 282 F. Supp. 291, 406

F. 2d 867, U.S. S. Ct. Docket No. 20, 39 L.W. 3423 17,18
Younger v. Harris, 91 S. Ct. 746 ............................ 1, 3, 5, 6,

passim

PAGE

United States Code
28 U.S.C. § 2283 ..........................................................  2, 4
42 U.S.C. § 1983 (1871 Civil Eights Act) .................  3, 4

Mobile City Code
14-7; 14-11, 14-13; 14-051 et seq..........................9,10, 13,22

Legislative History
1 The Records of the Federal Convention 1787 (Far- 

rand ed. 1911) 21 ..................................................... 14



IN' THE

Ilnxtzb i ^ t a t e  © c u r t  rtf A p p e a l s
For the Fifth Circuit, En Banc

No. 28632

------------- -— _+-------------------

J. L. L eF lore, et al.,

Plaintiffs-Appellants,

J am es R obinson , et al.,

Defendants-Appellees.
--------------------------- 4---------------------------

REPLY BRIEF ON REHEARING FOR 
DEFENDANTS-APPELLEES

This Reply Brief of Defendants-Appellees, City of Mobile, 
Alabama et al. (Mobile) pursuant to order of the Court, 
dated March 2, 1971, discusses the impact of the decisions 
of the United States Supreme Court, announced February 
23,1971, in Younger v. Harris, 91 S. Ct. 746; Perez v. Ledes­
ma, 91 S. Ct. 674; Samuels v. Mackell and Fernandez v. 
Mackell, 91 S. Ct. 764; Dyson v. Stein, 91 S. Ct. 769; Byrne v. 
Karalexis, 91 S. Ct. 777; and Boyle v. Landry, 91 S. Ct. 758, 
and is also addressed to arguments advanced in the Brief 
For Appellants.

Since many of the arguments advanced in our Initial 
Brief filed February 12, 1971 were affirmed by the Supreme 
Court decisions of February 23, 1971 and many of the 
arguments advanced in the Brief for Appellants were antic­
ipated in our Initial Brief, we shall refer whenever possible 
to our Initial Brief (I.B.) to avoid undue repetition.



2

We have read and studied Appellants latest brief and fail 
to find reference or answer therein to the arguments we set 
out in our brief of February 12, 1971.

We herewith reaffirm the arguments made in that brief. 
We note particularly that our arguments for the proposition 
that the anti-injunction statute (28 U.S.C. §2283) were un­
necessary in view of the decisions of the Supreme Court on 
February 23, 1971 wherein in matters involving these same 
questions the Court stated that the abstention principle for 
which we argued in our Point No. II, pp. 23-27, is funda­
mental to the Constitution, and the Federalism that our 
Founding Fathers had in mind. Thus, the principle is so 
fundamental that the passage of a statute by the Congress 
for its enforcement is unnecessary.

I.

Supreme Court Holds That National Policy Forbids 
Federal Court Intervention By Injunction Or Declara­
tory Judgment In State Court Prosecutions.

On February 23, 1971 the Supreme Court of the United 
States, affirming the long standing ‘ ‘ Abstention Doctrine,”  
held that a federal court should not issue an injunction to 
stay proceedings pending in a state criminal court, or grant 
relief by way of declaratory judgment, except under very 
unusual and special circumstances where necessary to pre­
vent immediate irreparable injury.

Resting solely on “ comity”  and the absence of factors 
necessary under equitable principles to justify federal inter­
vention, and without considering whether 28 U.S.C. §2283 
which prohibits an injunction against state court proceed­
ings “ except as expressly authorized by Act of Congress”  
would in and of itself be controlling . . . ” , the Court, on 
February 23, 1971 rejected lower federal court intervention 
in state court prosecutions in the six cases decided. The 
Court in each case reversed or vacated each lower federal 
court determination as to the unconstitutionality or con­



3

stitutionality respectively of the state statutes or ordinances 
challenged. Specifically the Court found as follows:

(1) Younger v. Harris, 91 S. Ct. 746. Reversed and re­
manded. Even if California Criminal Syndicalism Act under 
which one of the plaintiffs was being prosecuted was un­
constitutional, Federal district court should not have en­
joined California prosecution not involving harassment and 
not threatening great and immediate, irreparable harm that 
cannot be eliminated in state prosecution; 1871 Civil Rights 
Act (42 U.S.C. §1983) plaintiff being prosecuted by state 
was not entitled to federal court equitable relief against 
prosecution in state court where the injury he faced was 
solely that incidental to every criminal proceeding brought 
lawfully and in good faith; Civil Rights Act plaintiffs who 
claim that prosecution of another person chills their exer­
cise of First Amendment rights, but who have neither been 
prosecuted nor threatened with prosecution under statute, 
have no standing to attack it.

(2) Peres v. Ledesma, 91 S. Ct. 674. Reversed insofar 
as grants injunctive relief. Vacated and remanded. Federal 
district court improperly intruded into the States criminal 
processes and should not have suppressed allegedly obscene 
materials seized by state officials during course of good- 
faith obscenity prosecution; U. S. Supreme Court unable to 
review decision of three-judge court that local ordinance 
was invalid because it has no jurisdiction to review on direct 
appeal the validity of a declaratory judgment against a 
local ordinance.

(3) Samuels v. Machell, 91 S. Ct. 764. Affirmed. Where 
defendants in state court prosecutions under state criminal 
anarchy statutes brought federal action seeking to enjoin 
state prosecutions and also seeking declaratory judgment 
that statutes were invalid, three-judge federal court should 
not have considered constitutionality of New York Criminal 
Anarchy Law nor right to injunction against prosecution 
of defendant who did not show harassment or threat of 
irreparable damage.



4

(4) Dyson v. Stein, 91 S. Ct. 769. Vacated and remanded. 
Three-judge Federal district court should not have declared 
Texas obscenity statute unconstitutional and enjoined news­
paper publisher’s prosecution and any other prosecution 
under state statute in absence of finding of irreparable 
injury.

(5) Byrne v. Karalexis, 91 S. Ct. 777. Vacated and re­
manded. Three-judge Federal district court’s grant of pre­
liminary injunctive relief against pending or future state 
obscenity prosecutions based on probability of success in 
having state statute declared unconstitutional and that 
appellees might suffer irreparable injury if they were un­
able to show “ I am Curious (Yellow)” , was rendered im­
proper by the court’s failure to find that the movie ex­
hibitor’s First Amendment rights could not be adequately 
protected in single state criminal prosecution.

(6) Boyle v. Landry, 91 S. Ct. 758. Reversed and re­
manded. Chicago citizens who allege that possibility of 
their state prosecution under Illinois intimidation statute, 
which three-judge Federal district court declared uncon­
stitutional and enjoined enforcement, intimidates them in 
their exercise of First Amendment rights but who have not 
been charged, arrested or even threatened with prosecution, 
have no standing to bring 1871 Civil Rights Act suit for 
declaratory and injunctive relief against statute.

Mobile submits, that the Supreme Court decisions pre­
cluding Federal Court intervention in state court criminal 
proceedings on equitable principles alone, reinforced by the 
legislative rule of 22 U.S.C. §2283, as argued in its Initial 
Brief, pp. 9-23, clearly require this Court to vacate the 
majority opinion of the three-judge panel of this Court 
and dismiss the complaint. The basic requirement of equity 
jurisprudence required to be present to justify Federal 
intervention are simply not here present.



5

Supreme Court Decisions Of February 23, 1971 Re­
quire This Court To Dismiss This Action To Prevent 
Added Burdens On Federal Courts And The United 
States Supreme Court As Argued In The Initial Brief 
Of Mobile.

As stated by the Supreme Court in the Younger decision 
“ A federal lawsuit to stop a prosecution in a state court 
is a serious matter. And persons having no fears of state 
prosecution except those that are imaginary or speculative, 
are not to be accepted as appropriate plaintiffs in such 
cases”  91 S. Ct. at 749.

“ Our Federalism”  requires sensitivity to the legitimate 
interests of both the State and the National Governments. 
State courts must be permitted to try state cases free from 
interference by federal courts.

As was stated in Younger, supra, the U. S. Supreme Court 
held that “ Without regard to . . . the constitutionality of 
the state law, we have concluded that the judgment of the 
District Court, enjoining appellant Younger from prose­
cuting . ., must be reversed as a violation of the national 
policy forbidding federal courts to stay or enjoin pending 
state court proceedings except under special circum­
stances.”  {supra, p. 749) (emphasis supplied)

Contrary to the assertion of Appellants (Brief p. 5) the 
Supreme Court decisions of Febi'uary 23, 1971 not only 
affect the decision herein but require that it be vacated and 
the complaint dismissed.

The facts in this case clearly show:
(1) The protest activities of the Neighborhood Organized 

Workers (N.O.W.) beginning in 1968 are not here involved. 
It is not alleged that Mobile did anything to hamper the 
plaintiffs pure freedom of speech (I.B. 2).

(2) The confrontation of the “ speech conduct”  of the 
Plaintiffs with the general public interest ordinances of

II.



6

Mobile here involved springs from events leading np to 
and centered around the 1969 “ Americas Junior Miss 
Pageant”  (I.B. 2).

(3) For violating Mobile ordinances, ninety-one persons 
were arrested on May 1, 1969 (R. 131-134); one hundred 
forty-eight on May 2, 1969 (R. 134-138, 219a); and sixty- 
four on May 3,1969 (R. 138-140) (I.B. 2). Appellants admit 
that these arrests and state court prosecutions, precipitated 
this suit (Appellants’ Brief 10).

(4) On May 5, 1969, while the Municipal Court prosecu­
tions were pending, six plaintiffs, only three of whom were 
arrested on May 1, 2 or 3, 1969 filed this class action in the 
United States District Court for the Southern District of 
Alabama, Southern Division on their behalf and the behalf 
of all others similarly situated who allegedly find their 
rights in jeopardy because of the enforcement, threatened 
enforcement, and arbitrary and capricious application of 
the law by the defendants. The class purported to be rep­
resented by the Plaintiffs “ consists of those who have been, 
and who will be subjected to arrest and prosecution under 
certain ordinances of the City of Mobile, Alabama that are 
unconstitutional on their face and as applied”  (R. 37)1 
(I.B. 3).

(5) Prosecutions for the arrests of May 1, 2, and 3, 1969 
remain pending in the municipal court pursuant to stipula­
tion between the parties pending disposition of this case.

A. Appellants’ Contention That They Meet The Test 
For Federal Intervention Set Out In The Recent 
U. S. Supreme Court Decisions Is Without Merit

In Younger, supra (pp. 751, 752), the U. S. Supreme 
Court first pointed to its many decisions on abstention, 
based on comity (Federalism) and then defined the absten­
tion test as follows:

1 Whether or not Plaintiffs now seek to restrict themselves to being 
“ . . . representatives of a class of the black residents of Mobile, 
Alabama . . .”  is not clear. Appellant’s Brief 2.



7

In all of these cases the Court stressed the im­
portance of showing irreparable injury, the tradi­
tional prerequisite to obtaining an injunction. In 
addition, however, the Court also made clear that 
in view of the fundamental policy against federal 
interference with state criminal prosecutions, even 
irreparable injury is insufficient unless it is “ both 
great and immediate.”  Fenner, supra. Certain types 
of injury, in particular, the cost, anxiety, and incon­
venience of having to defend against a single crim­
inal prosecution, could not by themselves be con­
sidered “ irreparable”  in the special legal sense of 
■that term. Instead, the threat to the plaintiff’s fed­
erally protected rights must be one that cannot be 
eliminated by his defense against a single criminal 
prosecution. See, e.g., Ex parte Young, supra, 209 
U.S. at 145-147, 28 S. Ct. at 447-449. Thus, in the 
Buck case, supra, 313 U.S., at 400, 61 S. Ct., at 966, 
we stressed:

“ Federal injunctions against state criminal stat­
utes, either in their entirety or with respect to 
their separate and distinct prohibitions, are not to 
be granted as a matter of course, even if such 
statutes are unconstitutional. ‘ No citizen or mem­
ber of the community is immune from prosecution, 
in good faith, for his alleged criminal acts. The 
imminence of such a prosecution even though al­
leged to be unauthorized and hence unlawful is not 
alone ground for relief in equity which exerts its 
extraordinary powers only to prevent irreparable 
injury to the plaintiff who seeks its aid.’ Beal v. 
Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 
61 S. Ct. 418, 420, 85 L. Ed. 577.”

And similarly, in Douglas, supra, we made clear, 
after reaffirming this rule, that:

“ It does not appear from the record that peti­
tioners have been threatened with any injury other



8

than that incidental to every criminal proceeding 
brought lawfully and in good faith * * V ’ 319 U.S., 
at 164, 63 S. Ct., at 881. (Emphasis supplied)

The Court in Younger (91 S. Ct. at 749, 750) and in 
Boyle (91 S. Ct, 758, 760) also held that one not subject to 
state prosecution are not appropriate plaintiffs in a Fed­
eral action. See also Dyson v. Stein, 91 S. Ct. 769, 775 
(Douglas dissenting),

As we apply this language to the situation in Mobile, we 
submit that the city officials have acted in good faith and 
that in the pending actions, including any which might be 
construed as threats, Appellants have not “ been threatened 
with any injury other than that incidental to every criminal 
proceeding brought lawfully and in good faith * * * ”  
{Younger, supra, p. 752). Nothing in this record even ap­
proaches the “ Vietnamese”  raid described by Mr. Jus­
tice Douglas in his dissent in Dyson v. Stein, 91 S. Ct. 769, 
772, where no irreparable injury was found, or the “ official 
lawlessness”  referred to by Mr. Justice Stewart, with whom 
Mr. Justice Harlan joined, concurring in Younger v. Harris, 
91 S. Ct. 746, 757. As admitted by Appellants (Brief 10) 
only three of the six plaintiffs were being prosecuted in 
the municipal court for the action which “ precipitated this 
suit” . The prosecutions, by stipulation, are being continued 
pending disposition of this suit.

Appellants’ position that they meet the test of bad faith 
harassment, showing of irreparable injury immediate and 
great as set out in Younger el at., supra is clearly without 
merit. At the same time, they contend the federal district 
court and this Court should rule that the ordinances involved 
are unconstitutional on their face and on that basis they will 
have the “ chilling effect”  upon the enjoyment of their con­
stitutional rights. In other words, Appellants, in one 
breath, contend the facts of record exist on the point, and, 
in another, ask this Court to rule as to the constitutionality 
of the ordinances involved merely by study and analysis of 
their “ facial”  appearance regardless of the facts. In short,



9

the Court is requested by Appellants to exercise a legislative 
veto over the passage by the City of Mobile of these ordin­
ances. This is not a proper function of this Court.

B. Is There A  “ Case Or Controversy” Pending Regard­
ing Ordinance No. 14-11? If So, Do The Recent 
U. S. Supreme Court Decisions Bar Federal Inter­
vention?

Appellants contend there is a “ case or controversy’ ’ in 
this case involving Mobile Ordinance Section 14-11. At the 
same time they make the point that there were no prosecu­
tions pending against any of the plaintiffs or the members 
of their class under this ordinance. We submit that the 
Appellants have not shown this court a proper basis for 
federal intervention as to this ordinance as a “  case or con­
troversy” .

The majority opinion of this Circuit’s panel in this matter 
rendered its opinion as to the constitutionality of Sec. 14-11 
solely on the basis of its “ facial”  appearance. By the 
Appellants’ own admission (See Appellants’ Initial Brief 
25-26, footnote 21), an identical ordinance of Montgomery 
was held “ valid on its face.”  hi Re Wright, 251 F. Supp. 
880 at 882 (M.D. Ala. 1965). There was no finding, discus­
sion or application of any Mobile record fact in this opinion 
relative to Sec. 14-11.

Judge Goldberg stated in footnote 6:
Since no prosecutions are currently pending under 

Section 14-11 of the Mobile ordinances, there is no 
question about the availability of injunctive relief 
against future action under the ordinance. Stein v. 
Bachelor, supra.

The Supreme Court of the United States in Dyson v. 
Stein, 91 S. Ct. 769 (sub. nom. Stein v. Bachelor) vacated 
and remanded that decision of the three-judge court on the 
ground that no irreparable injury was found.

To this we refer to the language of the U. S. Supreme 
Court in Younger, supra, wherein that Court comments



10

against the role of the judicary to veto the legislative pro­
cess. The appropriate language of that Court as to the 
contentions raised by Appellants herein as to Sec. 14-11 is 
as follows (supra, 91 S. Ct. at pp. 754, 755):

Ever since the Constitutional Convention rejected 
a proposal for having members of the Supreme Court 
render advice concerning pending legislation it has 
been clear that, even when suits of this kind involve 
a “ case or controversy”  sufficient to satisfy the re­
quirements of Article 111 of the Constitution, the task 
of analyzing a proposed statute, pinpointing its 
deficiencies, and requiring correction of these de­
ficiencies before the statute is put into effect, is rarely 
if ever an appropriate task for the judiciary. (Em­
phasis supplied)

C. Decisions of February 23, 1971 Revised “ Chilling 
Effect” And “Vagueness And Overbreadth” Con­
cepts

The Dombrotvski criteria and its “ chilling effect”  theory 
is all but stricken from future consideration by the United 
States Supreme Court’s majority decisions in Younger, 
Samuels, et al.

Without further discussion, we feel the following lan­
guage of Mr. Justice Black in Younger, (supra at pp. 753, 
754) fully deals with questions within the general sphere 
of the cases dealing with the “ chilling effect”  and “ vague­
ness and overbreadth”  concepts. This reads as follows:

The District Court, however, thought that the 
Dombrowski decision substantially broadened the 
availability of injunctions against state criminal 
prosecutions and that under that decision the federal 
courts may give equitable relief, without regard to 
any showing of bad faith or harassment, whenever 
a state statute is found “ on its face”  to be vague or 
overly broad, in violation of the First Amendment. 
We recognize that there are some statements in the



11

Dombrowski opinion that would seem to support this 
argument. But as we have already seen, such state­
ments were unnecessary to the decision of that case, 
because the Court found that the plaintiffs had al­
leged a basis for equitable relief under the long- 
established standards. In addition, we do not regard 
the reasons adduced to support this position as suf­
ficient to justify such a substantial departure from 
the established doctrines regarding the availability 
of injunctive relief. It is undoubtedly true, as the 
Court stated in Dombrowski, that “ A criminal 
prosecution under a statute regulating expression 
usually involves imponderables and contingencies 
that themselves may inhibit the full exercise of First 
Amendment freedoms.”  380 IT.S., at 486, 85 S. Ct., 
at 1120. But this sort of “ chilling effect,’ ’ as the 
Court called it, should not by itself justify federal 
intervention. In the first place, the chilling effect 
cannot be satisfactorily eliminated by federal in­
junctive relief. In Dombrowski itself the Court stated 
that the injunction to be issued there could be lifted 
if the State obtained an “ acceptable limiting con­
struction”  from the state courts. The Court then 
made clear that once this was done, prosecutions 
could then be brought for conduct occurring before 
the narrowing construction was made, and proper 
convictions could stand so long as the defendants 
were not deprived of fair warning. 380 U. S., at 491, 
n. 7, 85 S. Ct., at 1123. The kind of relief granted in 
Dombrowski thus does not effectively eliminate un­
certainty as to the coverage of the state statute and 
leaves most citizens with virtually the same doubts 
as before regarding the danger that their conduct 
might eventually be subjected to criminal sanctions. 
The chilling effect can, of course, be eliminated by an 
injunction that would prohibit any prosecution what­
ever for conduct occurring prior to a satisfactory re­
writing of the statute. But the States would then be 
stripped of all power to prosecute even the socially



12

dangerous and constitutionally unprotected conduct 
that had been covered by the statute, until a new 
statute could be passed by the state legislature and 
approved by the federal courts in potentially lengthy 
trial and appellate proceedings. Thus, in Dombrow- 
shi itself the Court carefully reaffirmed the principle 
that even in the direct prosecution in the State’s own 
courts, a valid narrowing construction can be applied 
to conduct occurring prior to the date when the nar­
rowing construction was made, in the absence of fair 
warning problems.

Moreover, the existence of a “ chilling effect,”  even 
in the area of First Amendment rights, has never 
been considered a sufficient basis, in and of itself, 
for prohibiting state action. Where a statute does 
not directly abridge free speech, hut—while regulat­
ing a subject within the State’s power—-tends to have 
the incidental effect of inhibiting First Amendment 
rights, it is well settled that the statute can he upheld 
if the effect on speech is minor in relation to the need 
for control of the conduct and the lack of alternative 
means for doing so. Schneider v. State, 308 U.S. 147, 
60 S. Ct. 146, 84 L. Ed. 155 (1939); Cantwell v. 
Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 
(1940); United Mine Workers of America, Dist. 12 
v. Illinois Bar. Ass’n., 389 U.S. 217 88 S. Ct. 353, 19 
L. Ed. 2d 426 (1967). Just as the incidental “ chilling 
effect”  of such statutes does not automatically render 
them unconstitutional, so the chilling effect that ad­
mittedly can result from the very existence of certain 
laws on the statute books does not in itself justify pro­
hibiting the State from carrying out the important 
and necessary task of enforcing these laws against 
socially harmful conduct that the State believes in 
good faith to be punishable under its laws and the 
Constitution. (Emphasis Supplied)

The Court further pointed out that the eases dealing with 
standing to raise claims of vagueness or overbreadth failed



13

to change the basic principles governing the propriety of 
injunctions against state criminal prosecutions. (See foot­
note 4, Younger, supra, p. 752).

D. Freedman’s Pure Speech Ruling On Review
Not Applicable Here

The Appellants’ challenge (Brief 28) to the Mobile 
parade ordinance, Code §14-051, because it does not have a 
constitutional provision for immediate judicial review, m 
which they again rely on Freedman v. Maryland, 380 U.S. 
51, 13 L. Ed. 2d 649 (1965), is clearly put to rest by the 
U. S. Supreme Court in its pure speech decisions on Feb­
ruary 23, 1971, in Byrne v. Karalexis, 91 S. Ct. 777 (Massa­
chusetts Obscenity statute, “ I am Curious Yellow” ) ; 
Dyson v. Stein, 91 S. Ct. 769 (Texas obscenity statute, 
underground newspaper); and Perez v. Ledesma, 91 S. Ct. 
674 (Louisiana prosecutions for violation of obscenity stat­
ute and municipal ordinances). In each of these cases the 
Supreme Court under the “ Abstention Doctrine”  vacated 
and remanded the decisions by the Federal Courts without 
reference to any specific provision of the statutes which 
had been held constitutional or unconstitutional. Again, the 
Supreme Court held that state courts can best determine 
all phases of the constitutionality of these laws, including 
provisions for review.

E. This Court Should Not Enter The Legislative Field

In effect, Appellants contend that this Court should enter 
the legislative field. In their original brief Appellants re­
quested this Court to rule that twenty-one (21) of the ordi­
nances of the City of Mobile are facially unconstitutional.

We respectfully submit that not only has the U. S. Su­
preme Court decided on February 23, 1971 that this is not 
a proper field for the Federal District and Circuit Courts 
in the concept of Federalism; but we know, that in their 
wisdom, members of this Court have no desire to enter the 
legislative field.



14

As germane to this significant point we quote from 
Younger v. Harris, 91 S. Ct. 746, at 754, 755 as follows:

Procedures for testing the constitutionality of a 
statute “ on its face”  in the manner apparently con­
templated by Dombrowski, and for then enjoining all 
action to enforce the statute until the State can ob­
tain court approval for a modified version, are funda­
mentally at odds with the function of the federal 
courts in our constitutional plan. The power and 
duty of the judiciary to declare laws unconstitutional 
is in the final analysis derived from its responsibility 
for resolving concrete disputes brought before the 
courts for decision; a statute apparently governing 
a dispute cannot he applied by judges, consistently 
with their obligations under the Supremacy Clause, 
when such an application of the statute would con­
flict with the Constitution. Marbury v. Madison, 5 
U.S. (1 Crunch) 137, 2 L. Ed. 60 (1803). But this 
vital responsibility, broad as it is, does not amount 
to an unlimited power to survey the statute books 
and pass judgment on laws before the courts are 
called upon to enforce them. Ever since the Consti­
tutional Convention rejected a proposal for having 
members of the Supreme Court render advice con­
cerning pending legislation [fn. See 1 The Records 
of the Federal Convention 1787 (Farrand ed. 1911) 
21.] it has been clear that, even when suits of this 
kind involve a “ case or controversy”  sufficient to 
satisfy the requirements of Article III of the Con­
stitution, the task of analysing a proposed, statute, 
pinpointing its deficiencies, and, requiring correction 
of these deficiencies before the statute is put into 
effect, is rarely if ever an appropriate task for the 
judiciary. The combination of the relative remote­
ness of the controversy, the impact on the legislative 
process of the relief sought, and above all the specu­
lative and amorphous nature of the required line- 
by-line analysis of detailed statutes, see, e.g., Landry



15

v. Daley, 280 F. Supp. 938 (D.C.N.D. 111. 1968), re­
versed sub nom., Boyle v. Landry, 400 U.S. —, 91 
S. Ct. 758, 27 L. Ed. 2d — ordinarily results in a 
kind of case that is wholly unsatisfactory for decid­
ing constitutional questions, whichever way they 
might be decided. In light of this fundamental con­
ception of the Framers as to the proper place of the 
federal courts in the governmental processes of pass­
ing and enforcing laws, it can seldom be appropriate 
for these courts to exercise any such power of prior 
approval or veto over the legislative process. (Em­
phasis supplied)

Analogous to the situation with which we are confronted 
in the case at bar are the comments on the limitations on 
judicial power by the Chief Justice of the United States 
Warren Burger while he was sitting as a member of the 
United States Court of Appeals for the District of Colum­
bia in Pauling v. McNamara, 331 F. 2d 796, 798 (1964), 
cert. den. 377 U.S. 933, 12 L. Ed. 2d 297:

* * * The language of the Court in Chicago & 
Southern Air Lines v. Waterman S.S. Corp., 333 
U.S. 103, 111, 68 S. Ct. 431, 92 L. Ed. 568 (1948), 
is very much in point here:

“ Such decisions are wholly confided by our Con­
stitution to the political departments of the gov­
ernment, Executive and Legislative. They are deli­
cate, complex, and involve large elements of proph­
ecy. They are and should be undertaken only by 
those directly responsible to the people whose 
welfare they advance or imperil. They are deci­
sions of a kind for which the Judiciary has neither 
aptitude, facilities nor responsibility and which 
has long been held to belong in the domain of 
political power not subject to judicial intrusion or 
inquiry.”  [Citing cases]
That appellants now resort to the courts on a 

vague and disoriented theory that judicial power



16

can supply a quick and pervasive remedy for one of 
mankind’s great problems is no reason why we as 
judges should regard ourselves as some kind of 
Guardian Elders ordained to review the political 
judgments of elected representatives of the people. 
In framing policies relating to the great issues of 
national defense and security, the people are and 
must be, in a sense, at the mercy of their elected 
representatives. But the basic and important corol­
lary is that the people may remove their elected rep­
resentatives as they cannot dismiss United States 
Judges. This elementary fact about the nature of 
our system, which seems to have escaped notice occa­
sionally must make manifest to judges that we are 
neither gods nor godlike, but judicial officers with 
narrow and limited authority. Our entire System of 
Government would sutler incalculable mischief should 
judges attempt to interpose the judicial will above 
that of the Congress and President, even were we 
so bold as to assume that we can make better deci­
sions on such issues. (Emphasis supplied)

It is crystal clear that Federal courts are not, and cannot 
be, legislative rule making bodies. “ Our Federalism”  pre­
cludes intervention by federal courts in state criminal pro­
ceedings except under the unusual and special circumstances 
where necessary to prevent immediate and great irrepar­
able injury. No such circumstances are, nor can they be, 
here presented. Appellants’ contention that they meet the 
test for federal intervention set out in the Supreme Court’s 
decisions of February 23, 1971 is without merit.



17

III.

Supreme Court Decisions Since Younger, et al., And 
Other Developments Since That Time Confirm That 
The Decision Herein Must Be Vacated And The Com­
plaint Dismissed.

On February 23, 1971 the Supreme Court of the United 
States decided six cases, involving seven docketed cases, 
upholding the “ Abstention Doctrine” . Mr. Justice Black, 
Circuit Justice of the Fifth Circuit, wrote the majority 
opinion in five of the decisions and participated in the re­
maining two per curiam decisions.

At least nineteen (19) decisions of the U. S. Supreme 
Court since February 23, 1971 have applied the principle 
of “ abstention” .2

2 These cases decided March 29, 1971, reported at 39 U SLW  3423- 
24, involving abstention are: (1 ) Docket No, 20, Wright v. City of 
Montgomery, 282 F. Supp. 291, 406 F. 2d 867, Fifth Circuit (dis­
orderly conduct, loitering, obedience to orders) ; (2 ) Docket No. 31, 
Cato v. Georgia, 302 F. Supp. 1143, Fifth Circuit (operating a lottery, 
electronic device discovery) ; (3 ) Docket No. 43, Shevin v. Lazarus; 
(4 ) Docket No. 90, Barlow v. Gallant; (5 ) Docket No. 102, Goodman 
v. Wheeler, 306 F. Supp. 58, Fourth Circuit (vagrancy statute); (6 ) 
Docket No. 112, LeClah v. O’Neil; (7 ) Docket No. 116, McGrew v. 
City of Jackson, 307 F. Supp. 751, Fifth Circuit (obscenity) ; (8 ) 
Docket No. 134, Hosey v. City of Jackson, 309 F. Supp. 527, Fifth 
Circuit (obscenity); (9 ) Docket No. 217, Johnnie Reb’s Book & Card 
Shop v. Slaton; (10) Docket No. 289, Wade v. Buchanan; (11) 
Docket No. 290, Buchanan v. Wade; (12) Docket No. 500, Demich, 
Inc. v. Ferdon, De Rensy v. Cahill, and Natali v. San Francisco, 426
F. 2d 643, Ninth Circuit (obscenity) ; (13) Docket No. 844, ABC 
Books, Inc. v. Benson, 315 F. Supp. 695, Sixth Circuit (obscenity) ; 
(14) Docket No. 5013, Rollins v. Shannon, 292 F. Supp. 580, Eighth 
Circuit (unlawful assembly) ; (15) Docket No. 5164, Dyches v. Ryan; 
(16) Docket No. 5412, Brown v. Fattis, 311 F. Supp. 548, Tenth 
Circuit (obscenity); (17) Docket No. 5462, Porter v. Kimzey, 309 
F. Supp. 993 (defamation statute); (18) Docket No. 5539, Embry v. 
Allen, Reported as Hunter v. Allen, 286 F. Supp. 830, 422 F. 2d 1158, 
Fifth Circuit (disorderly conduct) ; and (19 ) Docket No. 5952, Geiger 
v. Jenkins, 316 F. Supp. 370, Fifth Circuit (license to practice medi­
cine).



1 8

A. Fifth Circuit Cases Decided On March 29, 1971.

The seven (7) eases which were decided involving the 
Fifth Circuit are summarized as follows:

(1) Wright v. City of Montgomery, 282 F. Supp. 291, 406 
F. 2d 867 (Docket No. 20). This case involves alleged viola­
tions of disorderly conduct, loitering and obedience to 
orders ordinances. This case involves to a certain extent 
ordinances of the same general nature as those involved in 
the case at bar, and was referred to in our Initial Brief at 
pp. 12,13, 41, 42, 43. The Federal District Court (N.D. Ala.) 
denied relief. This Court affirmed. U. S. Supreme Court 
granted certiorari, vacated the judgment and remanded to 
the U. S. Circuit Court for the Fifth Circuit for reconsidera­
tion in the light of Younger, Samuels and Fernandez, supra.

(2) Cato v. Georgia, 302 F. Supp. 1143 (1969) (Docket 
No. 31). Involves alleged violations of lottery statute and 
method of investigation to discover evidence through the 
use of electronic device. Judgment of the three-judge 
District Court that no First Amendment rights were vio­
lated was affirmed, citing Stefanelli v. Minard, 342 U.S. 117, 
and Perez v. Ledesma, 91 S. Ct. 674.

(3) McGrew v. City of Jackson, 307 F. Supj). 751; llosey 
v. City of Jackson, 309 F. Supp. 527 (Docket Nos. 116, 134). 
Involve constitutionality of the obscenity statutes. The 
judgments of three-judge Federal District Court panel in 
favor of the City of Jackson were vacated and the cases 
remanded to the District Court for reconsideration in the 
light of Younger, Samuels, and Fernandes, supra.

(4) Porter v. Kimsey, 309 F. Supp. 993 (Docket No. 5462). 
Involves challenge to constitutionality of Georgia defama­
tion statute. The judgment of the three-judge District Court 
was affirmed in the light of Younger, Samuels, and Fernan­
dez, supra. The three-judge District Court had held that 
where prosecution under the criminal defamation statute 
affected plaintiff alone and not a group seeking to exercise 
some broad right of freedom of speech and arrest, was based



19

upon a private warrant taken out by one citizen of a state 
against another, and was not founded on organized effort 
of law enforcement or harassment by public officials, action 
to enjoin the indictment or prosecution did not lie and the 
motion to dismiss was granted.

(5) Embry v. Allen, reported as Hunter v. Allen, 286 F. 
Supp. 830 422 F. 2d 1158 (Docket No. 5539), and cited in 
our Initial Brief at pp. 43, 44. Challenge to the constitution­
ality of fourteen sub-sections of the disorderly conduct 
ordinance of the City of Atlanta, Georgia as being so vague 
and overbroad on their face as to violate the First Amend­
ment of the U. S. Constitution. Judgment below was partly 
for the City of Atlanta. As in the case at bar civil rights 
of a class of persons were involved. The U. S. Court of 
Appeals for the Fifth Circuit held that certain of the chal­
lenged sections were constitutional and certiorari was then 
petitioned. The TJ. S. Supreme Court granted the petition 
for a writ of certiorari and the judgment of the U. S. Court 
of Appeals for the Fifth Circuit was reverved in the light 
of Younger, Samuels and Fernadez, supra.

(6) Geiger v. Jenkins, 316 F. Supp. 370 (Docket No. 5952). 
Action by physician seeking injunction against enforcement 
of a Georgia statute regulating revocation of licenses to 
practice medicine. The three-judge Federal District Court 
dismissed the complaint, and held that federal interference 
with state criminal proceedings was prohibited by the anti­
injunction statute (Sec. 2283 of the Judicial Code). The 
TJ. S. Supreme Court affirmed the judgment in the light of 
Younger, et al., supra.

B. Cases In Other Circuits Applying The 
Abstention Doctrine.

A number of the additional U. S. Supreme Court decisions 
on March 29, 1971 from cases arising from other circuits, 
also applied the “ Abstention Doctrine.”

(1) Wheeler v. Goodman, 306 F. Supp. 58 (Docket No. 
102). Challenge to constitutionality of vagrancy statute of



20

North. Carolina. The three-judge District Court held the 
vagrancy statute in violation of the 14th Amendment to the 
U. S. Constitution because it was. vague and overbroad, 
punished mere status, and invidiously discriminated against 
those without property. Injunction was granted. The U. S. 
Supreme Court vacated the judgment and remanded the 
matter to the U. S. District Court for the Western District 
of North Carolina (Charlotte Div.) in the light of Younger, 
supra.

(2) Demich, Inc. v. Per don, 426 F. 2d 643 (Docket No. 
500). Challenge to constitutionality of obscenity statute. 
Decision by three-judge Circuit Court (9th Circuit). The 
Federal District Court had denied injunctions against 
criminal prosecution but directed return of seized film with­
out prior adversary hearing and appeals were taken. The 
Circuit Court affirmed order for return of film and remanded 
case with instructions to vacate injunction against future 
seizures. Certiorari was granted. The judgment was va­
cated and the case remanded to the U. S. Circuit Court of 
Appeals for the Ninth Circuit in light of Peres, supra.

(3) ABC Boohs, Inc. v. Benson, 315 F. Supp. 695 (Docket 
No. 844). Challenged consitutionality of Tennessee obscen­
ity statute. Three-judge District Court held not unconstitu­
tional on its face. U. S. Supreme Court vacated and re­
manded.

(4) Rollins v. Shannon, 292 F. Supp. 580 (Docket No. 
5013). Challenged constitutionality of unlawful assembly 
ordinance of St. Louis, Missouri. Injunction sought. Three- 
judge District Court found arrests made in good faith and 
not motivated by any attempt to silence speech and as­
sembly, and further that the statute was not void for 
“ vagueness”  or “ over-breadth.”  Injunction relief was 
denied. The TJ. S. Supreme Court vacated the judgment and 
remanded the case to the IT. S. District Court for the Eastern 
District of Missouri (Eighth Circuit) for reconsideration in 
light of Younger, Samuels, Fernandez and Boyle, supra.



21

This case involved claims of racial discrimination, bad 
faith, harrassment, vagueness, over-breadth, great and im­
mediate irreparable injury, and is similar to the claims of 
Appellants in the case at bar,

(5) Brown v. Fallis, 311 F. Supp, 548 (Docket No. 5412). 
Challenge to constitutionality of Oklahoma obscenity stat­
ute based on allegation of vagueness and over-breadth. 
Three-judge District Court dismissed action on ground 
proof failed to show those special circumstances where 
state criminal prosecutions may be interfered with. Judg­
ment was affirmed by the TJ. S. Supreme Court on the basis 
of Younger, supra.

C. Other Developments.

(1) North v. Greene, Dist. Ct. No. 413-71, March 18, 1971 
Opinion per curiam. District of Columbia.

Challenge to Constitutionality of Criminal Procedure 
Act. Juvenile delinquency. Injunction against proceedings 
sought. Held that U. S. District Courts are not to employ 
equity powers to interfere with criminal proceedings pend­
ing in other judicial systems such as the D. C. Superior 
Court when constitutional claims may be raised and adjudi­
cated in such proceeding, citing Younger v. Harris, supra.

(2) Ohio v. Wyandotte Chemicals Corporation, 39 L.W. 
4323, March 23, 1971.

This case involves original jurisdiction by the IJ. S. Su­
preme Court in motion by the State of Ohio for leave to 
file complaint under the environmental law. Despite orig­
inal jurisdiction conferred by the Constitution, the Supreme 
Court declined to exercise same and denied the motion on 
the ground that the issues were bottomed on local law, that 
the Ohio courts are competent to consider such laws, that 
several national and international bodies are actively con­
cerned with the pollution problems involved here, and that 
the nature of the case requires the resolution of complex, 
novel and technical factual questions that do not implicate



22

important problems of federal law, which are the primary 
responsibility of the Supreme Court.

We cite this matter as the ultimate in the development 
of the “ Abstention Doctrine”  and the broadening trend in 
its application. This is but another of a growing number 
of examples of “ Federalism.”

CONCLUSION

For the reasons given above, Defendants-Appellees 
Mobile, et al. pray that this Court upon rehearing vacate 
the majority opinion of the three-judge panel of this Court 
involving the constitutionality of Mobile, Alabama Code 
§§14-7, 14-11, 14-13 and 14-051 et seq. and dismiss the 
complaint.

Respectfully submitted,

F red G-. C ollins , City Attorney 
City of Mobile 
P. 0. Box 4492 
Mobile, Alabama 36601
W illiam  H. B righam  
P. 0. Box 164 
Mobile, Alabama 36601
C harles S. R h y n e  
B rice W. R h y n e  
A lfred J. T ig h e , Jr.

R i-iy n e  & R h y n e  
400 Hill Building 
839—17th Street, N.W. 
Washington, D. C. 20006