Correspondence from Lani Guinier to Julius Chambers and Steve Ralston

    IN THE

^uprwitr GJmtrt of tk? Hmfrft States
October Term, 1962

No.

EDWARD R. FIELDS and NATIONAL STATES 
RIGHTS PARTY, and ROBERT LYONS,

Appellants,
v.

CITY OF FAIRFIELD, a Municipal Corporation,
Appellee.

On A ppeal from the Supreme Court of the 
State of A labama

JURISDICTIONAL STATEMENT

ORZELL' Bill in g sl e y
atto r n ey  at  LAW 

5 10 -5 1 4  MASONIC BLD< 
1 6 3 0 . 4 th AVENUE NOR

Birmingham , a l a b a m ,

Melvin L. W ulf,
156 Fifth Avenue,

New York 10, N. Y.

Charles Morgan, Jr.,
736 Bank for Savings Building, 

Birmingham, Alabama,
Attorneys for Appellants.



I N D E X

Opinions B e lo w .............................................................  1
Jurisdiction ..................................................................... 1

The Statutes Involved...................................................  2
Questions Presented.....................................   3
Statement of the C a se ...................................................  4
The Questions Are Substantial .................................  7
Conclusion ......................................................................  16

Table of Authorities
Cases :

Ayres, Re, 123 U. S. 433 ............................................ 13
Bates v. Little Rock, 361 U. S. 5 1 6 .........................  11
Bridges v. California, 314 U. S. 252 ........................ 8,11
Building Service Employees v. Gazzam, 339 U. S.

532 ...........................   13
Burstyn v. Wilson, 343 U. S. 495 .............................  8
Cantwell v. Connecticut, 310 IT. S. 296 .................. 11
Carpenters and Joiners Union v. Ritter’s Cafe,

315 U. S. 722 ...........................................................  13
Cox v. New Hampshire, 315 U. S. 569 .................... 9
Craig v. Harney, 331 U. S. 367 .............................. 8
DeJonge v. Oregon, 299 U. S. 353 ...........................  9,11
Fisk, Ex Parte, 113 U. S. 713 ..............................  13
Garner v. State of Louisiana, 368 U. S. 1 5 7 .......... 15
Giboney v. Empire Storage & Ice Co., 336 U. S. 490 13
Gitlow v. New York, 268 U. S. 652 ...........................  11
Green, In the Matter of, 369 U. S. 689 .................. 14
Grosjean v. American Press Co., 297 U. S. 233 . . . .  8
Hague v. CIO, 307 U. S. 496 .....................................  7, 8
Hughes v. Superior Court, 339 U. S. 460 .............. 13

PAGE



11

Jamison v. Texas, 318 U. S. 4 1 3 ..................... 2, 7
Kunz v. New York, 340 U. S. 290 ...........................  8, 9
Local 309 v. Gates, 75 F. Supp. 620 .....................  9
Local Union No. 10i v. Graham, 345 U. S. 1 9 2 ........  13
Lovell v. Griffin, 303 U. 8. 444 .................................  2, 7, 8
NAACP v. Alabama, 357 U. S. 449 .....................  11,12
NAACP, Ex Parte, 265 Ala. 349, 91 So. 2d 214 .. 12
Near v. Minnesota, 283 U. 8. 697 . .................. .. 8
Niemotko v. Maryland, 340 U. S. 268 ....................  8
Pennekamp v. Florida, 328 U. S. 3 3 1 ....................  8
Rowland, Ex Parte, 104 U. S. 604 ................. .. 13
Rockwell v. Morris, 10 N. Y. 2d 721, cert, denied,

368 U. S. 913 ........................................................  11
Sawyer, Re, 124 U. S. 200 ................................. . 14
Schenk v. United States, 249 U. S. 4 7 ...................  11
Schneider v. State, 308 U. S. 147 .........................  7
Staub v. Baxley, 355 U. S. 313 ............................... 2,14
Talley v. California, 362 U. S. 60 .........................  7
Terminiello v. Chicago, 337 U. S. 1 ........................  11
Thomas v. Collins, 323 U. S. 5 1 6 ................... 2,9,10,11
Thompson v. City of Louisville, 362 U. S. 199 ........ 15
United Gas, Coke & Chemical Workers v. Wis­

consin Employment Relations Board, 340 U. S.
383 ............................................................................  14

United States v. United Mine Workers, 330 U. S.
258 ................................................................... 12,13,14,15

Whitney v. California, 274 U. S. 357 .......................  15
Yates v. United States, 354 U. S. 298 ..................  11

PAGE



PAGE

Constitution- and Statutes:

United States Constitution:
First Amendment............................... 3, 4, 7, 8,10,12,14

Fourteenth Amendment ............................... 3 ,4 ,7 ,9 ,15

General City Code of Fairfield:
Sections 3-4 .......................................................... 2, 3, 7, 8
Sections 3-5 ...........................................................2, 3, 7, 8

Sections 14-53 ......................................................... 1> 3, 8

Norris LaGuardia Act, 47 Stat. 7 0 .................... ... 12,13

28 U. S. C. §1257(2) ................................... ............  2

Other A uthorities:

New York Times, October 30, 1962 .......................... 15

iii



1ST THE

j&uprrmr (Enurt at %  Ittttefc States
October Term, 1962

No.

Edwakd E. F ields and National States E ights Party, 
and E gbert Lyons,

Appellants,
v.

City op F airfield, a Municipal Corporation,
Appellee.

On A ppeal prom the Supreme Court of the 
State of A labama

—-------— --------- O'— ------- -— •— •—

JURISDICTIONAL STATEMENT

Opinions Below

The opinion of the Supreme Court of Alabama is re­
ported at — Ala.—, 143 So. 2d 177 and set out infra at pp. 
2a-7a. No opinion was written by the Circuit Court of 
Jefferson County, but its oral opinion rendered at the 
time of judgment is contained at E. 71-73 and is set out 
infra at pp. 8a-9a.

Jurisdiction

(i) Appellee filed a bill of complaint (E. 2-3) in the 
Circuit Court of Jefferson County on October 11, 1961, 
alleging that appellants intended to hold a public meeting 
without obtaining a permit, in violation of Section 14-53



2

of the General City Code of Fairfield, and had distributed 
handbills announcing the meeting in violation of Sections 
3-4 and 3-5 of the General City Code. The bill prayed that 
“ a temporary writ of injunction or restraining order be 
immediately issued by this Court * * * restraining [ap­
pellants] from holding said meeting * * * and distributing- 
said handbills,”  and that the injunction be made permanent 
after final hearing. The temporary writ (R. 5-6) was issued 
the same day on appellee’s ex parte application. The next 
day, appellants Fields and Lyons were found in criminal 
contempt of the injunction and sentenced to five days in 
jail and a $50 fine.

(ii) The judgment of conviction was affirmed and en­
tered by the Alabama Supreme Court on June 14, 1962 
(R. 101) and a timely application for rehearing was denied 
on July 12, 1962 (R. 104). Execution of sentence was 
stayed pending this appeal (R. 108). Notice of Appeal 
to the Supreme Court of the United States was filed with 
the Supreme Court of Alabama on September 10, 1962 
(R. 109-111). An amended Notice of Appeal was filed on 
September 18, 1962 (R. 112-113).

(iii) The jurisdiction of this Court to review by appeal 
the judgment of the Supreme Court of Alabama is con­
ferred by 28 U. S. C. % 1257(2).

(iv) The cases which sustain the jurisdiction of this 
Court are Lovell v. Griffin, 303 IT. S. 444; Jamison v. Texas, 
318 U. S. 413; Thomas v. Collins, 323 U. S. 516; Staub v. 
Baxley, 355 U. S. 313.

The Statutes Involved

General City Code of F airfield, A labama

See. 3-4. Handbills, etc.—Distribution on streets.
It shall be unlawful for any person to distribute or 

cause to be distributed on any of the streets, avenues, alleys, 
parks or any vacant property within the city any paper



3

handbills, circulars, dodgers or other advertising matter, 
[Ord. No. 354, §4 (1957).]

Sec. 3-5. Same—Placing or throwing in automobiles.
It shall be unlawful for any person to distribute in the 

city any handbill or other similar form of advertising by 
throwing or placing the same in any automobile or other 
vehicle within the city. [Ord. No. 354, §5 (1957).]

Sec. 14-53. Public meetings; permit required.
It shall be unlawful for any person or persons to hold 

a public meeting in the city or its police jurisdiction without 
first having obtained a permit from the mayor, to do so. 
[Ord. No. 184, § 4, 11-9-32.]

Questions Presented

1. Whether Sections 3-4 and 3-5 of the Oeneral City 
Code of Fairfield, Alabama, upon which appellants’ con­
tempt convictions rest, on their face or as construed and 
applied in this case, abridge appellants’ rights of free 
speech, press and assembly in violation of the due process 
clause of the Fourteenth Amendment and the First Amend­
ment to the United States Constitution.

2. Whether Section 14-53 of the General City Code of 
Fairfield, Alabama, upon which appellants’ contempt con­
victions rest, on its face or as construed and applied in 
this case, abridges appellants’ rights of free speech, press 
and assembly in violation of the due process clause of the 
Fourteenth Amendment and the First Amendment to the 
United States Constitution.

3. Whether consideration by the Supreme Court of the 
United States of a challenge on federal grounds to the 
validity of a municipal ordinance on its face, or as construed 
and applied, may be precluded where appellants are found 
in contempt of an ex parte temporary injunction which



4

purports to enforce compliance with the ordinance, and the 
state court refuses to entertain the merits of the challenge 
on the procedural ground that appellants “ chose to disre­
gard the temporary injunction rather than contesting it by 
orderly and proper procedure,”  where the consequence of 
the state procedural rule is to nullify appellants’ rights of 
free speech, press and assembly in violation of the due 
process clause of the Fourteenth Amendment and the First 
Amendment to the United States Constitution.

4. Whether appellants’ convictions for contempt, being 
unsupported by any evidence of guilt, constitute wholly 
arbitrary official action and thereby violate the due process 
clause of the Fourteenth Amendment to the United States 
Constitution.

Statement of the Case

I. When and How the Federal Questions Were Raised.

The federal questions presented by this appeal were 
first raised by appellants in the Circuit Court on their oral 
motion to dismiss (R. 66-69). They were raised thereafter 
in appellants’ petition for certiorari to the Supreme Court 
of Alabama (R. 84-86), and on the application for rehear­
ing (R. 103).

II. The Facts.

Appellant Fields is Information Director of the National 
States Rights Party. Appellant Lyons is Youth Organizer 
of the Party (R. 57). The Party, which stands for white 
supremacy and segregation (R. 53), has been on the ballot 
in Alabama (R. 58).

Sometime prior to Wednesday, October 11, 1961 (R. 44), 
the Party had handbills distributed in Fairfield which con­
tained the following announcement (R. 42):



W hite W orkers 
Meeting

*Niggers A re Taking Over U nions !

*Niggers W ant Our Parks and Pools !

#Niggers Demand M ixed Schools!
Communists in NAACP and in Washington say 

Whites Have No Rights!
The Nigger gets everything he Demands !

White Supremacy Can be saved 
Whites Can Stop this second Reconstruction!

Hear Important Speakers Prom 4 States 
Time—8 P. M. Date—'Wed. Oct. 11

Place—5329 Valley Road
In Downtown Fairfield, Alabama 

A bove the Car W ash

Thunderbolt Mobile Unit Will be Parked Out 
Front Sponsored by National States Rights Party

Box 783, Birmingham, Alabama 
P ublic I nvited

Come and Bring Your Friends

At about 5:00 P. M., Tuesday, October 10, 1961, the 
day before the scheduled meeting, the Mayor of Fairfield 
sent a notice to appellant Fields that he had violated a 
city ordinance that prohibited the distribution of handbills. 
The Mayor also informed Fields that another ordinance 
forbade public meetings without a permit (R. 43).

At about 6 :00 P. M. the same evening, Fields phoned the 
Mayor at his home to discuss the issuance of a permit for 
the meeting (R. 36-38). Fields called the Mayor’s office 
the morning of the following day and made an appointment 
for 2 :Q0 P. M. that afternoon for further discussion (R. 55). 
Around noon of that day, however, Fields was served with 
an injunction (R. 24) forbidding him, the National States



6

Rights Party, their servants, agents and employees, from 
holding the scheduled meeting and from distributing any 
handbills announcing the meeting. Fields did not keep his 
2:00 P. M. appointment.

The injunction was issued on the ex parte application 
of the City of Fairfield. The Bill of Complaint (R. 2-4) 
alleged, among other things, that the appellants were “ dis­
tributing handbills of an inflammatory nature designed to 
create ill will and disturbances between the races in the 
City of Fairfield,”  that the purpose of the announced meet­
ing “ is to create ill will, disturbances, and disorderly con­
duct between the races,”  and that the meeting “ will con­
stitute a public nuisance, injurious to the health, comfort, 
or welfare of the City of Fairfield and * * * is calculated 
to create a disturbance, incite to riot, disturb the peace, 
and disrupt peace and good order in the City of Fairfield.”

About 7 :30 P. M. on the evening of the scheduled meet­
ing, appellants Fields and Lyons arrived at the meeting 
place to announce that the meeting site had been transferred 
to the city park at Lipscomb, a nearby town (R. 16, 22, 25, 
27, 49, 54, 60, 62, 63).1 Subsequent to the service of the 
injunction, no meeting was held in Fairfield (R. 48, 55), 
no handbills were distributed (R. 18, 22, 26, 31, 44, 47, 54, 
63, 72),2 nor was there any disturbance whatsoever (R. 
17, 25, 28, 55).

Appellants were arrested for violating the injunction. 
On the following day, October 12, 1961, after a hearing, 
each was found in contempt and sentenced to serve 5 days 
in jail and pay a $50 fine.

1 Earlier the same day, appellant Lyons and another person were 
prohibited by the police from entering the meeting place (R . 33, 50).

2 Some copies of the Party’s newspaper, Thunderbolt, were dis­
tributed near the original meeting place, but it contained no notice of 
the Fairfield meeting, nor had its distribution been enjoined. A  copy 
of the newspaper is contained at R. 19.



III. The Disposition Below of the Federal Questions.

The Circuit Court, although it found that “ the ordi­
nances are a legal exercise of the police power of the 
municipality”  (R. 72), also found that “ I don’t believe it 
is the law of this State that you can collaterally attack the 
constitutionality of an ordinance in a contempt proceed­
ing * * * ”  (R. 71).

The Supreme Court of Alabama also found, the ordi­
nances not unconstitutional (R. 100), but held that appel­
lants “ may not raise the question of its unconstitutionality 
in collateral proceedings on appeal from a judgment of con­
viction for contempt of the order or decree * * * ”  (R. 
100).

The Questions Are Substantial

1. Sections 3-4 and 3-5 of the Code of Fairfield purport 
to prohibit the distribution of “ any paper handbills, circu­
lars, dodgers or other advertising matter,”  at all times and 
in all public places. A statute of that magnitude is uncon­
stitutional on its face, for it abridges the rights of free 
speech and free press that are secured by the First and 
Fourteenth Amendments to the United States Constitution. 
Lovell v. Griffin, 303 U. S. 444; Hague v. CIO, 307 U. S. 496; 
Schneider v. State, 308 U. S. 147; Jamison v. Texas, 318 
U. S. 413; Talley v. California, 362 U. S'. 60.

Sections 3-4 and 3-5 are almost identical to the ordi­
nances involved in Numbers 13, 18 and 29 in Schneider, 
which, as the Court said, “ absolutely prohibit [distribution] 
in the streets and, one of them, in other public places as 
well.”  308 U. S. at 162. The Court held those ordinances 
invalid on their face on the ground that they abridged 
“ the free communication of information and opinion se­
cured by the Constitution.”  Id. at 163.

This case is aggravated by the fact that appellants were 
restrained in advance from distributing any handbills what-



8

ever. Thus, appellee, relying upon Sections 3-4 and 3-5, 
burdened appellants with a prior restraint, a particularly 
noisome violation of the First Amendment, Near v. Minne­
sota, 283 U. S. 697; Burstyn v. Wilson, 343 U. S. 495.

Moreover, the trial court explicitly found that no hand­
bills were distributed after the injunction was served (ft. 
72). What the court in fact found, was that appellants had 
distributed copies of their newspaper, The Thunderbolt, 
whose circulation had not been enjoined. Though the court 
acknowledged that there was no announcement of the meet­
ing in the issue distributed,8 it said, “ That was an artifice 
on the part of someone to bring home the fact that the 
meeting was going to be held while artfully evading the 
exact language of the handbill that had been previously 
distributed” ( R. 72). Thus, the high order of protection 
conferred by the Constitution on the freedom of the press, 
was arrantly disregarded. Near v. Minnesota, supra; 
Grosjean v. American Press Co., 297 U. 8. 233; Bridges v. 
California, 314 U. S. 252; Pennekamp v. Florid,a, 328 U. S. 
331; Craig v. Harney, 331 U. 8. 367.

2. Section 14-53 of the Code of Fairfield requires that 
a permit be obtained from the Mayor “ to hold a public 
meeting in the city or its police jurisdiction.”  Because the 
ordinance contains no “ narrowly drawn, reasonable and 
definite standards for the officials to follow # * it is 
invalid on its face. Niemotko v. Maryland, 340 U. S. 268, 
271; Hague v. C. I. 0., 307 U. S. 496, 516; Runs v. New 
York, 340 TJ. S. 290. Mr. Justice Frankfurter, concurring 3

3 The issue consists of eight pages. The front page headline says 
“  ‘Freedom Riders’ Burn Bus While Bobby Kennedy Blames 9 
Innocent White Alabamians.”  The centerfold headline said “ Ken- 
nedys Start Second Reconstruction of South.”  Two and a half pages 
are devoted to excerpts from Henry Ford’s The International Jew 
(R. 19).



9

in Runs, said, “ I f a municipality conditions holding street 
meetings on the granting of a permit * * *, the basis which 
guides licensing officials in granting or denying a permit 
must not give them a free hand, or a hand effectively free 
when the actualities of police administration are taken into 
account.”  340 U. S. at 284-285.

The size of the free hand wielded against appellants, 
when measured by its reach in this case, is remarkable. 
The power it assumed was not restricted to regulating the 
“ time, place and manner,”  of a meeting on the streets or 
in the parks,4 5 but rather it asserted the power to suppress 
in advance a meeting of a political party to be held in a 
private hall.

There have been two cases before this Court which 
were concerned with the power asserted by a State to 
prohibit a peaceful public meeting held in a private hall 
merely because the purpose of the meeting was disagree­
able to the government : DeJonge v. Oregon, 299 U. S. 353; 
and Thomas v. Collins, 323 U. S. 516.®

In DeJonge, an Oregon statute purported to make crim­
inal, among other things, “ the organization of an * * * 
assemblage which advocates [criminal syndicalism], and 
presiding at or assisting in conducting a meeting of such 
an organization, society or group.”  DeJonge’s “ sole of­
fense as charged # # was that he had assisted in the
conduct of a public meeting, albeit otherwise lawful, which 
was held under the auspices of the Communist Party.”  
299 U. S. at 362.

The Court, holding the conviction repugnant to the due 
process clause of the Fourteenth Amendment, said:

“ The holding of meetings for peaceable political 
action cannot be proscribed. Those who assist in

4 Compare Cox v. New Hampshire, 312 U. S. 569, 576.

5 Compare Local 309 v. Gates, 75 F. Supp. 620.



1 0

the conduct of such meetings cannot be branded as 
criminals on that score. The question, if  the rights 
of free speech and peaceable assembly are to he 
preserved, is not as to the auspices under which the 
meeting is to be held hut as to its purpose; not as 
to the relations of the speakers, hut whether their 
utterances transcend the hounds of the freedom of 
speech which the Constitution protects. If the per­
sons assembling have committed crimes elsewhere, 
if they have formed or are engaged in a conspiracy 
against the public peace and order they may be 
prosecuted for their conspiracy or other violation 
of valid laws. But it is a different matter when the 
State, instead of prosecuting them for such offenses, 
seizes upon mere participation in a peaceable as­
sembly and a lawful public discussion as the basis 
for a criminal charge.”  299 U. S. at 365.

In Thomas, an official of a labor union was held in 
contempt of a restraining order-issued ex parte, as here— 
that forbade him from violating a Texas statute regulating 
the solicitation of membership in trade unions. The order 
was issued in anticipation of a meeting at which the appel­
lant was scheduled to speak. He appeared and spoke at 
the meeting, and was held in contempt. The Court, hold­
ing that the statute contravened the First Amendment, 
said that “ a requirement that one must register before he 
undertakes to make a public spech to enlist support for a 
lawful movement is quite incompatible with the require­
ments of the First Amendment,”  323 U. S. at 540.

Whether or not a State has the power to prohibit 
in advance peaceful assemblies merely because its officials 
prefer to suppress discussion of issues of public importance 
or maintain the status quo, is a constitutional question of 
the first magnitude. It is presented here in graphic form.

The purpose of the meeting organized by appellants was 
to discuss race relations. Appellants maintain that the 
white race is superior to the Negro race and are entirely 
opposed to any form of racial integration. They intended



11

to discuss—and oppose—the integration of labor unions, 
parks, pools and schools. Their opposition to integration, 
of course, is constitutionally irrelevant. Compare Termi- 
niello v. Chicago, 337 U. S. 1, and Rockwell v. Morris, 10 
N. Y. 2d 721, cert, denied, 368 U. S. 913, with N.A.A.C.P. v. 
Alabama, 357 U. S. 449 and Bates v. Little R od , 361 U. S. 
516.

The power of a State to suppress speech and assembly 
may not be applied in advance, but only, if at all, when 
there is a clear and present danger that the speech or as­
sembly threatens to incite illegal conduct. Schenk v. United 
States, 249 U. S. 47, Gitlow v. New York, 268 U. S. 652 (dis­
sent), DeJonge v. Oregon, supra, Bridges v. California, 314 
U. S. 252, Thomas v. Collins, supra. Compare Yates v. 
United States, 354 U. S. 298. The record here is barren 
of evidence of any such danger. Appellee’s bill of com­
plaint contains no factual allegations to support its con­
clusions that the purpose of the meeting was “ to create 
ill will, disturbances, and disorderly conduct between the 
race,”  and that it “ will constitute a public nuisance, in­
jurious to the health, comfort or welfare of the City of 
Fairfield and * * * is calculated to create a disturbance, 
incite to riot, disturb the peace, and disrupt peace and good 
order in the City of Fairfield”  (R. 3).6

The true purpose of the restraints imposed on appel­
lants was revealed by the sentencing court. It said, ‘ ‘ Back 
several years ago wTe did have a movement to move into 
one of our public parks here but that was straightened out 
within a matter of a few weeks * * *. And it is the intention, 
I know, of the public officials * * # that we are going to do 
everything we can to maintain that status quo”  (R. 72). 
But a State “ may not suppress free communication of 
views * * # under the guise of preserving desirable con­
ditions.”  Cantwell v. Connecticut, 310 U. S. 296, 308.

6 The record shows that a meeting held by appellants the previous 
evening was entirely peaceable (R . 47).



12

The ruling below, if permitted to stand, will empower 
the States to burden free speech, press and assembly to an 
extent not heretofore tolerated by this Court. The decision 
whether those burdens offend the First Amendment, re­
quires full briefing and oral argument before the Court.

3. Whether or not a state rule of procedure may be 
interposed between an individual and his rights of free 
speech, press and assembly under the circumstances present 
in this case, is a substantial federal question that has not 
been decided by this Court.

The Alabama Supreme Court held that appellants could 
test neither the constitutionality of the ordinances on which 
the temporary injunction was based, nor the validity of 
the injunction itself, by violating its terms. It relied 
principally 7 on United States v. United Mine Workers, 330 
U. S. 258, which involved the question whether the Norris- 
LaGuardia Act prohibited a United States District Court 
from enjoining a coal miners’ strike when the United 
States was in possession of the mines. Although United 
Mine Workers affirmed convictions of contempt of an ex 
parte restraining order, the case is not authority for the 
proposition that a contempt conviction is valid even if the 
underlying order is void on constitutional grounds.

First, of the five Justices in the majority, three held the 
order valid. Though they went on to declare that even 
if the order were void, the defendants nonetheless were 
required to obey it, that much of their opinion was unneces­
sary to their decision and therefore not binding. Mr. 
Justice Black and Mr. Justice Douglas likewise found the 
order valid and thought it unnecessary, therefore, to decide 
the academic problem of a void order. They dissented in 
part on other grounds. Mr. Justice Murphy and Mr. Justice 
Rutledge concluded both that the order was void and the

7 The opinion also cites E x Parte National Association for Ad­
vancement of Colored People, 265 Ala. 349, 91 So. 2d 214, but 
neglects to note that that case was reversed, in N.A.A.C.P. v. Ala­
bama, 357 U. S. 449.



13

contempt conviction therefore invalid. Only Mr. Justice 
Frankfurter and Mr. Justice Jackson held the contempt 
conviction valid even though the order on which it was 
based was, in their opinion, invalid. Thus, of nine Justices 
writing five opinions, only Justices Frankfurter and Jack- 
son squarely adopted the proposition advanced here by the 
Supreme Court of Alabama.

Second, the issue in United Mine Workers dealt only 
with the question whether the Norris-LaGuardia Act was 
to be interpreted to prohibit a United States District Court 
from enjoining a strike under the unique facts of that case. 
There was no discussion in the Court’s opinion bearing 
on the A ct’s constitutionality, nor was there any claim that 
the Act was unconstitutional.

Third, there was substantial doubt whether the Norris- 
LaGuardia Act applied to the facts in United Mine Workers, 
for as the Court noted, the question “ had not previously 
received judicial consideration.”  330 U. S. at 293. In 
the case at bar, to the contrary, it is perfectly clear that 
the ordinances in question are unconstitutional both on 
their face and as construed and applied. See Points 1 
and 2, supra. Consequently, the “ different result”  which 
Mr. Chief Justice Vinson anticipated, “ were the question 
of jurisdiction frivolous and not substantial” , 330 U. S. 
at 293, is required in this case.

Fourth, the nature of the United Mine Workers case, 
dealing as it does with a labor dispute, sets it apart from 
the instant case which comes here unfettered by the quali­
fications that may attach to cases that concern industrial 
conflict. Compare, Carpenters and Joiners Union v. Rit­
ter ’s Cafe, 315 U. S. 722; Giboney v. Empire Storage d  Ice 
Co., 336 U. S. 490; Building Service Employees v. Gazsam, 
339 U. S. 532; Hughes v. Superior Court, 339 U. 8. 460; 
Local Union No. 10 v. Graham, 345 U. S. 192.

Fifth, cases decided by this Court both before and after 
United Mine Workers have held that a contempt conviction 
under a void order is itself void. Ex Parte Rowland, 104



14

U. S. 604; Ex Parte Fish, 113 U. S. 713; Re Ayers, 123 U. S. 
443; Re Satvyer, 124 U. S. 200. See also United Gas, Coke 
& Chemical Workers v. Wisconsin Employment Relations 
Board, 340 U. S. 383; In the Matter of Green, 369 U. S. 689.

By utilizing the supposed doctrine of United Mine 
Workers, Alabama has effectively curtailed appellants’ 
rights of speech, press and assembly, and Mr. Justice Rut­
ledge’s prophecy in his dissent in United Mine Workers 
has come to pass:

“ [I ] f  [the Court’s holding] should become the 
law, for every case raising a question not frivolous 
concerning the court’s jurisdiction to enter an order 
or judgment, that punishment for contempt may be 
imposed irrevocably simply upon a showing of vio­
lation, the consequences would be equally or more 
serious * *.

The First Amendment liberties especially would 
be vulnerable to nullification by such control. Thus, 
the constitutional rights of free speech and free 
assembly could be brought to nought and censorship 
established widely over these areas merely by apply­
ing such a rule to every case presenting a substantial 
question concerning the exercise of those rights. 
* * * These and other constitutional rights would be 
nullified by the force of invalid orders issued in flat 
violation of the constitutional provisions securing 
them, and void for that reason.”  330 TJ. S. at 351- 
352.

If appellants were not judged in contempt of the pre­
liminary injunction, but rather were convicted directly of 
violating the ordinances on which the injunction was based, 
there is no question that the ordinances’ constitutionality 
could have been tested by violating them. Staub v. Baxley, 
355 U. 8. 313. But Alabama, by interposing a temporary 
injunction between appellants and the ordinances, has de­
vised a method that, if  ratified by this Court, will allow 
circumvention of the Staub doctrine and confer on the states 
a technique to nullify the precise purpose the First Amend­
ment is intended to serve—full discussion of all matters of



15

public concern, which Mr. Justice Brandeis called “ a politi­
cal duty.”  Whitney v. California, 274 U. S. 357, 376 (con­
curring opinion). Public issues frequently are short run, 
and if the government were empowered to suppress dis­
cussion by use of an injunction issued, as here on the 
flimsiest ground,8 the purpose of the discussion may well 
have passed by the time the appellate remedies were ex­
hausted. For example, it would enable a political candidate 
to be enjoined from speaking during the campaign period 
preceding an election. I f  he violated the injunction he 
would be imprisoned; if he bowed to the injunction and 
tested its constitutionality in “ orderly and proper pro­
ceedings,”  the election will have long ended. In either 
case, the electorate would not have heard him and the 
electoral process would be crippled.9

8 So flimsy “ as to be usurping judicial forms” , thereby satisfying 
Mr. Justice Frankfurter’s criterion for treating the injunction “ as 
though it were a letter to a newspaper.” United Mine Workers, 
supra at 309-310.

9 On the day this Jurisdictional Statement was printed, the New 
York Times carried the following story (October 30, 1962, p. 22) :

Los A n geles, Oct. 29— California Democrats won a court 
order today against the sale and distribution of the controversial 
Little Red Book until after the election.

Democrats alleged that the booklet, “ California: Dynasty of 
Communism,” implied that Gov. Edmund G. Brown and other 
Democratic incumbents were soft on Communism.

Superior Judge Kenneth N. Chantry issued a temporary re­
straining order prohibiting the printing, posting or distribution 
of the 32-page booklet. He set Nov. 7, the day after Election 
Day, for a hearing on an injunction.

The order followed a libel suit for $500,000 damages brought 
by Eugene L. Wyman, the state chairman, and other Demo­
cratic leaders.

They alleged the booklet was designed to “ injure, defame, 
discredit and defeat” Democratic officials.

It was contended the booklet contained false statements and 
doctored photographs.

* * *

Judge Chantry ordered defendants to take back any copies 
in the hands of postal officials.



16

Whether or not the Alabama rule of procedure an­
nounced by the court below shall be permitted to stand 
between appellants and their rights under the Constitution, 
is a substantial federal question that should be fully briefed 
and argued before the Court.

4. This Court has held that convictions devoid of evi­
dentiary support are unconstitutional under the due pro­
cess clause of the Fourteenth Amendment. Thompson v. 
City of Louisville, 362 (J. S. 199; Garner v. State of 
Louisiana, 368 IT. S. 157. This is such a case.

The Circuit Court expressly found that “ there is no 
evidence that the pamphlet was re-distributed”  (R. 72), 
but as we pointed out above, he held that the injunction 
was violated by the distribution of appellants’ newspaper 
even though it contained no notice of the meeting. The 
Circuit Judge said nothing at all about whether the evi­
dence sustained a finding that appellants had violated the 
ban on the scheduled meeting—nor could he, for it is un­
disputed that appellants had cancelled it. Although appel­
lants were in the vicinity of the meeting hall, it was only 
to notify those persons who may have come to the an­
nounced meeting place, that the meeting was to be held 
elsewhere, outside the City of Fairfield. Nonetheless, the 
Supreme Court of Alabama said that “ There is evidence 
to support the finding that they did violate the terms of 
the temporary injunction”  (R. 100).

CONCLUSION

For the reasons stated, it is urged that jurisdiction 
be noted.

Respectfully submitted,
Melvin L. W ulf,

156 Fifth Avenue,
New York 10, N. Y.

Charles Morgan, Jr.,
736 Bank for Savings Building, 

Birmingham, Alabama, 
Attorneys for Appellants.

October 31, 1962.



APPENDIX



The Supreme Court op A labama 

Thursday, June 14, 1962 
The Court Met Pursuant to Adjournment 

Present: All the Justices 
Jefferson Circuit Court 

Bessemer Division 
6th Div. 801: 802: 809

---------------------- o—----------------------
Dr. E dward E. F ields and National States Rights Party,

vs.

City of F airfield, a Municipal Corporation.
---------------------- o----------- ----- ——

The said causes having been consolidated, W hereupon,

Come the parties by attorneys and the record and mat­
ters therein assigned for errors, being argued and sub­
mitted on motions and merits and duly examined and 
understood by the Court, it is considered that in the record 
and proceedings of the Circuit Court' there is no error.

It is therefore considered, ordered and adjudged that 
the judgment of the Circuit Court be in all things affirmed.

I t is further considered, ordered and adjudged that 
the Appellants-Petitioners, Edward R. Fields and Robert 
Elsworth Lyons, and Dr. Fred Short and Pearce S. John­
son, sureties on the appeal bond, pay the costs of appeal 
of this Court and of the Circuit Court.

And it appearing that said parties have wrnived their 
rights of exemption under the laws of Alabama, it was 
ordered that execution issue accordingly.

[Judgment of the Supreme Court of Alabama]



2a

-------------------------------- o — — --------------- --------

Dr. E dward R. F ields and National States Rights Party,

[Opinion of the Supreme Court of Alabama]

v.

City oe F airfield, a Municipal Corporation.

A ppeal from Jefferson Circuit Court 

------------------------- o—------ — —■—-

Merril, Justice:
Dr. Edward R. Fields and Robert Lyons were adjudged 

to be in contempt of circuit court because they had been 
found guilty of violating a temporary injunction issued 
by the court against them as individuals, and against the 
National States Rights Party, of which they were officers, 
enjoining them from conducting an advertised meeting in 
Fairfield. Fields and Lyons were each fined $50 and 
sentenced to five days in jail.

Petitioners "appealed”  their judgment of conviction 
to this court and later their attorney "discovered that 
writ of certiorari is the proper remedy in this case,”  
and asked that the purported appeal be considered as a 
petition for writ of certiorari. We have complied with 
the request and so treat the cause now under review.

Petitioners were distributing handbills in the City of 
Fairfield, which read:



3a

“ W hite W orkers 

‘ ‘ Meeting

‘ ‘ * Niggers A re Taking Over U nions!

“ #N iggers W ant Our Parks and Pools!

“ * Niggers Demand M ixed Schools!

“ Communists in NAACP and in Washington say 
“ Whites H ave No Rights!

“ The Nigger gets everything he Demands!

“ White Supremacy Can be saved!
Whites Can Stop this second Reconstruction!

“ Hear Important Speakers from 4 States 
‘ ‘ Time—8 P. M. Date—Wed. Oct. 11

“ Place—5329 Valley Road
“ In Downtown Fairfield, Alabama 

“ A bove the Car W ash

“ T hunderbolt Mobile Unit Will Be Parked Out
Front Sponsored by National States Rights Party

“ Box 783, Birmingham, Alabama 
“ P ublic I nvited

“ Come and Bring Your Friends!”

The attorney for the city sought a temporary injunc­
tion to enjoin petitioners from holding the advertised 
meeting because they had not complied with an ordinance 
of the City Code which provided “ It shall be unlawful for 
any person or persons to hold a public meeting in the 
city or police jurisdiction without first having obtained 
a permit from the mayor to do so.”  The judge issued

Opinion of Supreme Court of Alabama



4a

the temporary injunction and a copy was served on Fields 
at Noon, Wednesday, August 11th. Lyons also had notice 
of the temporary injunction which enjoined them “ from 
holding a public meeting at 8 P.M. on Wednesday, October 
11, 1961, at 5329 Valley Road, Fairfield, Alabama, as 
announced, and from distributing further in the City of 
Fairfield, handbills announcing such meeting such as were 
distributed in the City of Fairfield, Alabama, on October 
10, 1961, until further orders from this Court; and this 
you will in no wise omit under penalty, etc.”

Fields and Lyons were arrested that night where a 
crowd had gathered across the street from the advertised 
place of meeting. Fields was making announcements to 
the crowd and both he and Lyons were distributing copies 
of ‘ ‘ The Tunderbolt, ’ ’ the newspaper of the Party.

The petitioners make two points in brief. They say 
first that the evidence shows they did not violate the terms 
of the injunction. There is evidence to support the find­
ing that they did violate the terms of the temporary in­
junction, and we have held that upon petition for certiorari, 
the court does not review questions of fact but only ques­
tions of law; but if the court below misapplies the law 
to the facts as found by it or there is no evidence to sup­
port the finding, a question of law is presented to be 
reviewed upon the petition for certiorari. Ex parte Wetsel, 
243 Ala, 130, 8 So. 2d 824.

We now come to the main point argued by petitioners— 
“ that the temporary injunction was void ab initio on ac­
count of being contrary to and in violation of both the 
United States and Alabama Constitutions.”  This argu­
ment is based upon the premise that the ordinance of the 
City of Fairfield is unconstitutional. We cannot say that 
it is unconstitutional on its face.

In Ex parte National A ss ’n for Adv. of Colored Peo­
ple, 265 Ala. 349, 91 So. 2d 214, we said:

Opinion of Supreme Court of Alabama



5a

“ On the petition for certiorari the sole and only 
reviewable order or decree is that which adjudges 
the petitioner to be in contempt. Certiorari cannot 
be made a substitute for an appeal or other method 
of review. Certiorari lies to review an order or 
judgment of contempt for the reason that there is 
no other method of review in such a case. Ex parte 
Dickens, 162 Ala. 272, 50 So. 218, 220. Review on 
certiorari is limited to those questions of law which 
go to the validity of the order or judgment of con­
tempt,, among which are the jurisdiction of the court, 
its authority to make the decree or order, violation 
of which resulted in the judgment of contempt. It 
is only where the court lacked jurisdiction of the pro­
ceeding, or where on the face of it the order diso­
beyed was void, or where procedural requirements 
with respect to citation for contempt and the like 
were not observed, or where the fact of contempt is 
not sustained, that the order or judgment will be 
quashed.”

Here, the circuit court had jurisdiction of the parties and 
the subject matter. It had the authority to make the de­
cree or order, and on its face, the order disobeyed was not 
void. It is not contended that any procedural requirements 
were omitted.

In the face of this, petitioners, without moving to dis­
solve the temporary injunction, seeking a hearing, or in 
any way contesting the writ, proceeded to meet a crowd 
gathered across the street from the advertised place of 
meeting and distributed inflammatory literature.

As a general rule, an unconstitutional statute is an ab­
solute nullity and may not form the basis of any legal right 
or legal proceedings, yet until its unconstitutionality has 
been judicially declared in appropriate proceedings, no per­

Opinion of Supreme Court of Alabama



6a

son charged with its observance under an order or decree 
may disregard or violate the order or the decree with im­
munity from a charge of contempt of court; and he may 
not raise the question of its unconstitutionality in collat­
eral proceedings on appeal from a judgment of conviction 
for contempt of the order or decree, or an application for 
habeas corpus for release from imprisonment for contempt. 
United States v. United Mine Workers of America, 380 
U. S. 258, 91 L. Ed. 884, 67 S. Ct. 677; Eowat v. Kansas, 
258 U. S. 181, 66 L. Ed. 550, 42 S. Ct. 277; People v. Bou­
chard, 6 Misc. 459, 27 N. Y. S. 201; McLeod v. Majors, 5th 
Cir., 102 F. 2d 128; Pure Milk Asso. v. Wagner, 363 111. 316, 
2 N. E. 2d 288.

In the United Mine Workers case, supra, the court said:
“ Proceeding further, we find impressive author­

ity for the proposition that an order issued by a 
court with jurisdiction over the subject matter and 
person must be obeyed by the parties until it is re­
versed by orderly and proper proceedings. This is 
true without regard even for the constitutionality 
of the Act under which the order is issued. In Howat 
v. Kansas, 258 U. S. 181, 189-190 (1922) this Court 
said:

‘ An injunction duly issuing out of a court of 
general jurisdiction with equity powers upon 
pleadings properly invoking its action, and served 
upon persons made parties therein and within 
the jurisdiction, must be obeyed by them how­
ever erroneous the action of the court may be, 
even if the error be in the assumption of the 
validity of a seeming but void law going to the 
merits of the case. It is for the court of first 
instance to determine the question of the valid­
ity of the law, and until its decision is reversed

Opinion of Supreme Court of Alabama



7a

for error by orderly review, either by itself or 
by a higher court, its orders based on its decision 
are to be respected, and disobedience of them is 
contempt of its lawful authority, to be punished.’

“ Violations of an order are punishable as crim­
inal contempt even though the order is set aside on 
appeal, Worden v. Searle, 121 IT. S. 14 (1887), or 
though the basic action has become moot, Gompers 
v. Bucks Stove d  Range Co., 221 U. S. 418 (1911).

“ We insist upon the same duty of obedience 
where, as here, the subject matter of the suit, as well 
as the parties, was properly before the court; where 
the elements of federal jurisdiction were clearly 
shown; and where the authority of the court of first 
instance to issue an order ancillary to the main suit 
depended upon a statute, the scope and applicability 
of which were subject to substantial doubt. * * * ”

Under these authorities, petitioners were guilty of con­
tempt, as they chose to disregard the temporary injunction 
rather than contesting it by orderly and proper proceedings.

Affirmed.

Livingston, C. J., Simpson and Harwood, JJ., concur.

Opinion of Supreme Court of Alabama



8a

The Court: Well, gentlemen, before I give you my
decision, I have a remark or two I would like to make.

First, I don’t believe it is the law of this State that 
you can collaterally attack the constitutionality of an ordi­
nance in a contempt proceeding without first purging your­
self of that contempt, if there is any there.

And, second, it has been, either through good luck or 
the grace of somebody bigger than all of us here in the 
Bessemer Cut-off, that we have been singularly blessed 
with not having any race incident here in this area; and, 
particularly, I think, Fairfield has never had one. Back 
several years ago we did have a movement to move into 
one of our public parks here but that was straightened 
out within a matter of a few weeks by the City Attorney 
for Bessemer and other people. And since that time I 
don’t believe we have had a singie clash between the races, 
either in Bessemer, or Fairfield, or any of the other city— 
cities of the Bessemer Division of this County. And it 
is the intention, I know, of the public officials, both of this 
county and of the various municipalities of the Bessemer 
Division of this County that we are going to do everything 
we can to maintain that status quo. We are going to try 
to keep peace between the races here and we are going 
to do everything that we can to keep people from agitating 
trouble.

Getting down to this case here:
While there is no evidence that the pamphlet was re­

distributed, the writ of injunction says “ distribute further 
handbills, announcing such meetings, as were distributed 
in the City of Fairfield. ’ ’

I am impressed by the tone and the context of the 
paper that was admittedly distributed and I simply think 
that was an artifice on the part of someone to bring home 
the fact that the meeting was going to be held while artfully

[O p in io n  o f  th e  C ircu it C o u rt o f  J efferso n  C o u n ty ]



9a

evading the exact language of the handbill that had been 
previously distributed.

If these respondents were of the opinion and so advised 
that these ordinances were unconstitutional they could have 
filed their motion to dissolve it and had their day in court 
and the final hearing on this injunction was to have been 
set down or was set down on November 17th, giving every­
body adequate time to prepare their cases to come in and 
test the constitutionality of these ordinances.

It is my opinion that the ordinances are a legal exercise 
of the police power of the municipality.

Therefore, Dr. Fields and Mr. Lyons, if you will stand:
It is the judgment of the Court that you are in contempt 

of this Court and it is the judgment of the Court that you 
be and are hereby adjudged in contempt and you are 
fined $50.00.

And as additional punishment you are ordered to be 
confined in the county jail for five days.

Opinion of the Circuit Court of Jefferson County



DRZEU- B'lUNSSLEV, JR.
a tto rn ey  AT

avenue north
rS B 30 a ATH AVt.1 ■

T he Hecla Press, 54 Lafayette Street, New Y ork City, BEekman 3-2320
«sgfjî 39

(2145)