Abbot v. Thetford Brief Amicus Curiae on Appeal NAACP Legal Defense Fund

    UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 

No. 73-1894

C.D. (DENNY) ABBOTT,
Plaintiff-Appellant,

-v-

WILLIAM F. THETFORD, individually and 
in his official capacity as Judge of 
the Family Court of Montgomery County, Alabama,

Defendant-Appellee.

Appeal From The United States District Court 
For The Middle District of Alabama

BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE ON APPEAL

JACK GREENBERG 
JAMES M. NABRIT, III ANN WAGNER

10 Columbus Circle Suite 2030
New York, New York 10019

Attorneys for Amicus Curiae



I N D E X

Page

Interest of the Amicus .............................

Argument ...........................................  3

I. IN FILING A FEDERAL LAWSUIT ON BEHALF OF
THE RIGHT OF BLACK NEGLECTED CHILDREN TO 
EQUAL PROTECTION OF THE LAW,DENNY ABBOTT 
WAS EXERCISING HIS FIRST AMENDMENT FREE­
DOMS OF SPEECH, PETITION AND ASSEMBLY ... 3

II. JUDGE THETFORD'S ORAL INSTRUCTION 
PROHIBITING ALL JUVENILE COURT STAFF 
FROM FILING xAWSUITS, WITH POSSIBLE 
EXCEPTIONS, IS FACIALLY UNCONSTITUTIONALAS BOTH VAGUE AND OVERBROAD ............  7

III. THE ORAL INSTRUCTION OF JUDGE THETFORD 
WAS UNCONSTITUTIONALLY APPLED TO PRO­
HIBIT AND PUNISH PRESUMPTIVELY-PROTECTED FIRST AMENDMENT EXPRESSION WITHOUT 
SUBSTANTIAL AND MATERIAL DISRUPTION OF JUVENILE COURT ADMINISTRATION, EITHER
ACTUAL OR REASONABLY-FORESEEABLE ........  18

Conclusion .........................................  30

Table of Cases:
Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971)... 18,25
Brooks v. Auburn University, 412 F.2d 1171

(5th Cir. 1969)   10

Brotherhood of Railroad Trainmen v. Virginia, 377U.S. 1, 5(1964)   6

Hobbs v. Thompson, 448 F.2d 456, 474 (5th Cir. 1971). 13



Page

Johnson v. Branch, 364 F.2d 177, 181 <4th Cir.1966).. 22
NAACP v. Button, 371 U.S. 415 (1963) ...............  5,6,14
Pickering v. Board of Education, 391 U.S.563(1968)... 13,18,19,

20,23,28
Russo v. Central School District No.l, Towns of

Rush, etc. N.Y., 469 F.2d 623 (2nd Cir.1972)... 17
Shanley v. Northeast Ind. School Dist., Bexar

County, Tex., 462 F.2d 960 (5th Cir. 1972).... 9,10,29
Shelton v. Tucker, 364 U.S. 479 L(1960).............  17
Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969) ................  18,22,26,
28

United Mine Workers of America v. Illinois State
Bar Association, 389 U.S. 217 (1967)..........  6

United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948) .........................  18

Statute:
Code of Alabama, Tit. 13 §361 ......................  27

ii



* *

The assistance of Daphne McFarlane in the preparation 
of this Brief is gratefully acknowledged.

iii



In The
UNITED STATES COURT OF APPEALS 

For The Fifth Circuit 
No. 73'

C.D. (Denny) ABBOTT,
Plaintiff-Appellant,

-v-
WILLIAM F. THETFORD, individually and 
in his official capacity as Judge of 
the Family Court of Montgomery County, Alabama,

Defendant-Appellee.

Appeal From The United States District Court For 
The Middle District of Alabama

BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE ON APPEAL

Interest of the Amicus

The NAACP Legal Defense and Educational Fund, Inc. has 
been the principal legal arm of the civil rights movement in this 
country for many years. it has vrorked to establish the constitu­
tional rights of black people to equality in education, employment, 
voting, municipal services and public accommodations as well as to 
equal justice under law. But the legal precedents that have been 
set represent only the culmination of the long struggle by black



people to assert and secure recognition of their rights, as well 
as the beginning of the equally arduous task of enforcing these 
rights. This is a process which depends primarily upon fearless 
and determined people who are willing to place their lives and 
their livelihoods on the line to protest racial discrimination 
and injustice. Such people are the prime movers of peaceful social 
change and they are the only ones who can make the legal promise of 
equality into a reality.

Because of its recognition of the importance of such 
peaceful protest as a vehicle for social change, the Fund has 
represented civil rights demonstrators from the early days of the 
Montgomery bus boycott, as well as teachers and other government 
employees who have been fired as a result of their civil rights 
activity. The holding of the lower court, which upholds the dis­
missal of Denny Abbott, a juvenile court probation officer, by 
Judge Thetford, his employer, for filing a civil rights lawsuit in 
violation of the judge's oral instruction, represents a serious 
impairment of the right of government employees to pursue through 
litigation or any other form of First Amendment expression the 
lawful objectives of equality of treatment by all government for 
black people in this country.

The Fund has an interest in this case for an additional 
reason. Within the past year the Fund has started a juvenile 
justice project, one purpose of which is to pursue equality of 
treatment for black children in the juvenile justice and child 
welfare systems. The Fund has joined in the federal civil rights

2



action filed by Denny Abbott on behalf of black neglected children 
in Alabama, because the Fund believes that that lawsuit raises 
novel and significant issues concerning the obligation of the 
State to provide equal treatment to black neglected children, as 
well as the obligation of the State to provide adequate treatment 
to neglected children of all races.

The Fund believes that the lower court has seriously under­
rated the magnitude of the constitutional rights which Denny Abbott 
has exercised in filing a civil rights action as "next friend" for 
black children. The Fund also believes that the lower court has 
sanctioned governmental action which represents a shocking invasion 
of the First Amendment rights of government employees, including 
the right to peacefully protest racial discrimination. It is for 
this reason that the Fund joins the plaintiff-appellant in urging 
this Court to reverse the decision of the court below and to remand 
the case to the district court with directions to grant the plaintiff- 
appellant's prayer for relief.

Argument
I. IN FILING A FEDERAL LAWSUIT ON BEHALF OFTHE RIGHT OF BLACK NEGLECTED CHILDREN TO 

EQUAL PROTECTION OF THE LAW, DENNY ABBOTT 
WAS EXERCISING HIS FIRST AMENDMENT FREE­
DOMS OF SPEECH, PETITION AND ASSEMBLY

The Court below concluded its opinion by finding "that Mr. 
Abbott exercised his rights of free speech, if not his right to 
access to the courts," in filing a federal lawsuit on behalf of 
the right of black neglected children to equal opportunity.(R.683)

3



This is the only place in its entire opinion that the court ex­
pressed any assurance that Denny Abbott exercised an̂ . constitutional 
rights in filing the lawsuit. Except for this one reference to 
Mr. Abbott's right to free speech, the court below consistently 
characterized the interest of Mr. Abbott which must be weighed 
against the interest of the State as his employer in determining 
the constitutionality of Abbott's discharge as "the rights of Plain­
tiff to file a suit for others not then within his court's juris­
diction and without any proof that others were not available to 
file such a suit."(R.682; see also, R.674-75, 676). The court 
expressed uncertainty concerning whether the "right to file a suit 
for others" is constitutionally protected by raising and leaving 
unanswered the question whether the Constitution guarantees access 
to the courts " . . .  for the purpose of righting wrongs for persons 
other than the person seeking to assert the right." (R.674)

The court below seriously underrated the constitutional 
magnitude of the interests of Denny Abbott which it was required 
to weigh against the interest of the State as his employer. But 
not only did the court fail to appreciate the constitutional 
magnitude of the rights exercised by Mr. Abbott in filing a lawsuit 
on behalf of black neglected children, but also the court clearly 
concluded that it was not at all important that Mr. Abbott exercise 
these rights In its opinion the court suggests that Mr. Abbott 
could have substituted "any other adult" to appear as "next friend" 
on behalf of the black children Mr. Abbott seeks to assist and that 
Mr. Abbott could have thereby avoided a confrontation with his

4



employer, Judge Thetford, resulting in his discharge. The court 
erroneously equates filing a lawsuit as "next friend" on behalf of 
a child, whereby the "next friend" assumes a responsibility to pro­
tect the best interest of that child, with lending "nominal" support 
to a lawsuit or allowing one's name to be used in civil rights 
litigation (R.675). Happily, Denny Abbott takes his responsibility 
for children much more seriously than the lower court would have

yhim do.

The lower court also failed to understand that in filing 
the suit on behalf of three black neglected children, Denny Abbott 
not only was doing what he believes is in the best interest of those 
children (R.343) but also was pursuing through litigation broader 
objectives which have been characterized by the Supreme Court as 
"a form of political expression": "the lawful objectives of equality 
of treatment by all government, federal, state and local, for the 
members of the Negro community in this country." N.A.A.C.P v. Button, 
371 U.S. 415, 429 (1963). (R.85, 121, 404, 411, 419). The undis­
puted evidence in this case is that on many occasions Denny Abbott 
expressed his concern over the lack of facilities for the placement

1/ Denny Abbott believes that his probation department has a duty "to work in the interest of all children that come into our 
contact and we have knowledge of." (R.384). He initially 
decided to file a civil rights lawsuit against the state 
welfare department and several segregated group homes for 
children on behalf of a fourteen year old black boy who had 
been in the state training school since he was ten (in viola­
tion of state law) because he had nowhere else to live.
Abbott first met the boy at the Montgomery Youth Aid facility 
where Abbott is employed and, through contacts with various 
administrators including the Deputy Director of the state 
welfare department, endeavored unsuccessfully to find a 
suitable placement for the boy. (R.84-87, 331, 398, 409, 415)

5



of black children adjudicated neglected or dependent by the juvenile 
court. (R.372, 413). There can be no question that in filing a 
lawsuit on behalf of the right of black children to equal oppor­
tunity Denny Abbott was exercising his constitutionally protected 
freedoms of speech, petition and assembly. The Supreme Court has 
on three separate occasions in recent years affirmed " . . .  that 
the First Amendment's guarantees of free speech, petition and 
assembly give [individuals] the right to gather together for the 
lawful purpose of helping and advising one another in asserting 
[ their] rights . . . "  Brotherhood of Railroad Trainmen v. Virginia, 
377 U.S. 1, 5 (1964); In accord. United Mine Workers of America v. 
Illinois State Bar Association, 389 U.S. 217 (1967); N.A.A.C.P. v. 
Button, 371 U.S. 415 (1963).

The First Amendment freedoms of speech, assembly and 
petition which Denny Abbott exercised in filing a lawsuit to achieve 
equality of treatment for black children have been described by the 
Supreme Court as "delicate and vulnerable, as well as supremely 
precious in our society." N.A.A.C.P. v. Button, supra, 371 U.S. at 
433. But in striking a balance between the interests of Denny 
Abbott in exercising his constitutional rights and the interests 
of the State as his employer, it is not these supremely precious 
rights that the court placed in the scale but rather the right "to 
file a suit for others not then within his court's jurisdiction 
and without any proof that others were not available to file such 
a suit." (R.682). After striking the balance and concluding that 
"Abbott's rights pale in comparison"[R.683] the court then summarily

6



acknowledged that Abbott had exercised his constitutional right of 
free speech- This belated reference to Abbott's freedom of speech 
cannot cure the serious error that the court committed by greatly 
underestimating the constitutional magnitude of the rights Denny 
Abbott is exercising.

II. JUDGE THETFORD'S ORAL INSTRUCTION PROHIBITING 
ALL JUVENILE COURT STAFF FROM FILING LAWSUITS,
WITH POSSIBLE EXCEPTIONS, IS FACIALLY UNCON­
STITUTIONAL AS BOTH VAGUE AND OVERBROAD

The undisputed evidence is that Judge Thetford's sole
ground for firing Denny Abbott was Abbott's "wilful and deliberate"

2/disobedience of Thetford's oral instruction. This was the sole 
ground stated in the letter dated November 22, 1972, that informed 
Denny Abbott that he was discharged immediately (R.501-502), the sole 
ground stated in the personnel record notice (R.503), and the sole 
ground stated by Judge Thetford at the hearing on a motion for pre­
liminary injunction and at the trial (R.57, 511-512). In view of 
the undisputed evidence, the court below erroneously refused to 
determine the facial constitutionality of Judge Thetford's oral

2/ At the trial, counsel for Judge Thetford stated as grounds
for an objection to the question whether Judge Thetford agreed 
with the relief sought in the suit filed on behalf of black 
neglected children, that "Consistently throughout this trial 
Mr. Mandell has tried to make the firing related to the filing 
of the lawsuit. I understand that theory. But the facts and 
the evidence indicates without any dispute that the judge 
fired Mr. Abbott because he violated a direct order." The 
objection was sustained. (R.557)At the beginning of the trial, the court ruled that evidence 
concerning the reputation of Mr. Abbott is irrelevant and would 
not be admitted (R.255). The court also ruled evidence con­cerning the competency of Mr. Abbott inadmissible as immaterial 
stating: "I understand that there is no contention Mr. Abbott 
is not competent in this case."(R.259)

7



instruction, although this claim was clearly raised in the com­
plaint (R.4-5) and was pressed throughout the trial (see, e.g.

3/R.391-393).

3/ The following colloquy occurred between the court and Abbott’s 
counsel at the trial:
MR. MANDELL: . . .  I think one of our grounds I allege that 
the order is overbroad. It includes lawsuits that may be 
justifiable.THE COURT: You haven't got such a lawsuit. If the order
were overbroad there are two answers. In the first place 
you haven't got a lawsuit like that. You knew and he knew 
that this is the sort of lawsuit, the very sort of lawsuit 
that this order was written for. And he can't very well take 
the position that this rule would have prevented me from 
suing my wife for a divorce when he wasn't trying to sue 
his wife for divorce. He brought a suit that was completely 
related —  and this may be an issue in the case, but this is 
the contention —  completely related to the function of the 
court.

X X  X

MR. MANDELL: . . . But the thing is if an order is overbroad 
you have a right to challenge that overbreadth even if your 
case is being unconstitutionally abridged.
THE COURT: Well, I don't think you do because you got to
show that you have a standing to challenge it. And yourstanding would be limited to the factual situation in which 
you find yourself. Now, he could have gone into the state 
proceeding. There is a state proceeding provided by statute, 
as I read the law, under which he could have challenged this
situation when the rule first came out. But he saw fit notto do that. He waited and he deliberately violated the rule 
and he deliberately filed the suit knowing that it was a 
violation of the rule. According to the theory of defense, 
as I understand it, he knew that this was clearly exactly the 
sort of thing that Judge Thetford did intend to prohibit.

X X  X
MR. MANDELL: Could I give you the case that holds that he 
has a right to raise a question that is broader than the 
particular case?
THE COURT: Yes. Do you have it?
MR. MANDELL: NAACP versus Button case. (R.391-393)

8



Under the principles set out by this Court in Shanley v . 
Northeast Ind. Sch. Dist., Bexar County, Tex.. 462 F.2d 960 (5th 
Cir. 1972), a facial approach is required in this case. "Especially 
if the regulation is the sole rationale for punishment, the regula­
tion must have a rationale constitutionally sufficient on its face." 
Id., 462 F.2d at 975. Judge Thetford's application of his oral 
instruction to prohibit and punish Denny Abbott's exercise of his 
First Amendment freedoms and in addition Judge Thetford's con­
struction of his instruction revealed in his testimony in this case 
should convince this Court that a facial approach is compelled.

The circumstances under which Judge Thetford issued his 
oral instruction are described in the Findings of Fact:

Judge Thetford, upon being informed in October, 1972, 
that Chief Probation Officer Abbott was spending con­
siderable time in the office of a lawyer known to be 
interested in civil rights matters and suspecting that 
he proposed to file another lawsuit, called together 
three persons. Miss Goodwin, Mr. Franklin and Mr. Abbott, as department heads of court personnel, and issued an 
order directing that no suit, with possibly some ex­
ceptions, be filed by court personnel. While recollec­
tions are in conflict as to the conditions of the pro­
hibition, some of the witnesses testified that the 
prohibition involved only suits which might involve 
the operation of the Circuit Court and excepted those 
suits wherein the Judge1s previous knowledge and consent was secured. (R.666-667).

This court need not resolve the conflict in recollections 
as to the conditions of the prohibition in order to review the con­
stitutionality of the oral instruction, because the oral instruction 
even as recollected by Judge Thetford cannot pass the constitutional 
tests required by the First Amendment.

9



According to Judge Thetford's recollection, he told his 
supervisors "that I wanted no suit filed by any member of our staff 
which would affect the work of the court without my knowledge and 
approval" (R.495); he also prohibited his staff from assisting in 
the filing of any lawsuit. (R.53, 538).

The need to speculate at large concerning the possible 
implications of this oral instruction has been eliminated by Judge 
Thetford's testimony in this case. That testimony, along with 
Judge Thetford's reaction to Denny Abbott's exercise of his First 
Amendment freedoms of speech, petition and assembly, confirms the 
"worst fears regarding the variations of interpretation that could 
pervert the regulation." Shanley v. Northeast Ind. Sch. Dist., Bexar 
County, Tex., supra, 462 F.2d at 976. Judge Thetford's testimony 
affirms that he intends to exercise an unconstitutional prior res­
traint on his employees' exercise of their First Amendment freedoms, 
see, e.g., Brooks v. Auburn University, 412 F.2d 1171 (5th Cir.1969);
that his interpretation of his instruction sweeps protected activity

*wholly unrelated to the sound administration of the juvenile court; 
that the language of the instruction is such that reasonable men 
can differ and should differ substantially as to its meaning; and 
finally that he does not restrict his interference with his employees' 
First Amendment freedoms to lawsuits which interfere in a material 
and substantial way with the proper administration of the juvenile 
court:

Q. Now, suppose a member of your staff had contributed 
money which would be used to assist in the frame of the 
cost of the filing of a lawsuit which would affect Youth Aid Facilities?

10



A. Knowing my staff I doubt if they have it. My 
thinking had not gone that far. I mean I wasn't being technical with them. I was simply—

x x
Q. How about making a speech to some group or civic 
club with regard to the need of filing a lawsuit?
A. I had not thought of that possibility.
Q. Would that be included within the scope of your oral directive?
A. Well, as I say, I have never considered that possibility. I don't know.
Q. Suppose a member of your staff on his own time or 
on her own time interviewed potential parties or witnesses?
A. To a suit that was going to be filed that would 
affect my court? I think that would have been prohibited 
by my order. I think that would have been within the purview of my order. Lets put it that way.
Q. How about writing a letter to a newspaper magazine 
urging someone to file a lawsuit and expressing a need for such filing?
A. i would think that under the wording of my statute I should have been notified.
MR. STEWARD: Lets correct the words statute. Your instructions?
A. My instructions. (PI. Ex.4, 12/20/72,21-23)

x x
Q- . . .  I would like for you to define, if you would 
of the term affecting the operations of the court . . .
A. i think it means what it says.

x x
Q. I would appreciate it if you would define as best you can what you mean by that term.
A . In a lawsuit that would hamper or hinder any of my work as Judge of Juvenile Court.

x x
Q. Does it mean having any effect on the juvenile court 
or having, as you said, would hinder or hamper you. Suppose 
it had a positive effect on your job performance?

11



A. No. I expected to be notified of anything— well, 
yes. I think anything that— I think you are getting 
the picture. Anything that wDuld affect ray court, I 
want to know about it.
A. Now—
A. Good, bad, or indifferent. That is not to say I 
wouldn't have approved it if I thought it would help it. 
(PI. Ex.4, 12/20/72, pg.24)

x x
Q. How about a lawsuit of a female probation officer 
who alleging sex discrimination at the youth aid facility? 
Your answer?
A. I had not contemplated that in my order, but it seems 
that would affect our operation.
Q. It is not?
A. It would not affect our operation because we have 
no sexual discrimination out there. (PI. Ex.4,12/20/72, 
pg.25)

In response to the question whether a suit by a black staff
member charging racial discrimination in employment would fall within
the scope of the instruction, Judge Thetford replied:

A. I had certainly never thought about that. That 
was not the kind of lawsuit I had in mind.
Q. Well, I am asking you why that would not affect 
the operations of your court?
A. I don't think it would.
Q. Well, I am asking you why not?
A. Because I think they could win it and I don't think—
I just never have thought about it. I mean you are asking 
questions now that never remotely occurred to me.
Q. Well, would not a lawsuit like that affect the 
operations of your court?
A. I don't know whether it would or not. (PI.Ex.2,12/20/72,

pg.27)
x x

12



Q. Suppose one of your black staff members filed a 
suit, as was recently filed before the Supreme Court, to integrate (sic.) the Kiwanis Club or the Moose or 
the Elks or one of those similar clubs?
A. Well, I would have thought that if they had filed 
a suit to integrate (sic.) the Kiwanis Club when I was 
there asking for a $10 0 ,0 0 0 to build a home, yes, I 
would have thought it would have affected the operation 
of my court. The Moose Club— I don't know what the 
Moose Club is and I don't know anybody that belongs to it.
Q. Well, lets say a female employee suing the Junior League— a black female— I don't know if you have any, 
but lets assume that you had a black female probation officer 
suing the Junior League.
A. Yes, I would have thought that would have adversely 
affected my court and the project of what I was planning 
for the court.
Q. And that you would not then have allowed them to file 
that lawsuit?
A. No. Not as long as I was trying to get them to sponsor 
a project. (PI.Ex.4, 12/20/72, pp.49-50).

There can be no question that the oral instruction as con­
strued by Judge Thetford fails to meet the tests of constitutional 
exactness required by the First Amendment. This Court has held 
that in light of Pickering v. Board of Education, 391 U.S. 563 (1968) 
and related cases, governmental regulations of the political activities 
of public employees must be tested by traditional overbreadth prin­
ciples. Hobbs v. Thompson, 448 F.2d 456, 474 (5th Cir. 1971). This 
Court recognized in Hobbs that "the government should be able to 
regulate activities which directly interfere with the proper per­
formance of its employee's duties," but cautioned that restrictions 
upon First Amendment freedoms "should not lightly be imposed", 448 
F.2d at 470:

13



. . . a blanket prohibition upon political activity, 
not precisely confined to remedy specific evils, would 
deal a serious blow to the effective functioning of 
our democracy. In this area, the overbreadth doctrine 
plays an important role, for it requires the legislature 
to focus narrowly on the particular evils it wishes to 
combat when speech is at stake. 448 F.2d at 471.

Judge Thetford's instruction evidences no narrow focus or precision 
of regulation whatsoever. It is "a vague and broad [rule which] 
lends itself to selective enforcement against unpopular causes," 
N.A.A.C.P. v. Button, supra, 371 U.S. at 435, and Judge Thetford's 
testimony leaves no doubt that he intends to enforce his instruction 
selectively. In addition, there is substantial evidence in this 
case that the very purpose of the instruction was "selective enforce­
ment" against causes unpopular with Judge Thetford. Judge Thetford's 
oral instruction does not reflect the thoughtful attempt of an 
administrator to regulate activities of his employees which sub­
stantially and materially interfere with the sound administration 
of the juvenile court or with the proper performance of their duties, 
but rather reflects his personal reaction to the vigorous advocacy 
of Denny Abbott on behalf of children.

Judge Thetford readily admits that the advocacy of Denny
Abbott prompted him to issue his oral instruction:

Q. And would you please state again in detail why you 
felt at this time it was necessary to formulate such a 
rule and directive?
A. I didn't want any lawsuit filed which would hurt 
the work of my court.
Q. Now, why— my point is, at this time it had been 
almost three years after Mr. Abbott had filed his initial 
lawsuit, what prompted you at this particular time?

14



A. Because someone out at the court, and I am unable 
to say who it was because I don't remember, telling me 
Mr. Abbott was spending a lot of time in your office.
Q. Now, Judge, isn't it a fact that some members of 
your court, without going into who they are or what the 
purposes were, have filed lawsuits in the past two years?
A. Oh, yes. (R.534)

Although Judge Thetford initially denied that the fact that Mr.
Abbott was "going to a civil rights lawyer" affected his thinking, 
he then testified:

Q. In other words, if you had seen Mr. Abbott in any 
attorney's office you would have issued this directive?
A. No.
Q. Why wouldn't you issue it if he went into any attorney"s office?
A. Well, I think I know the lawyers in Montgomery.
Q. Why then —  (interrupted)
A. The type of litigation they handle.
Q. So, it does have to bear on the type of litigation I
handle, is that correct?
A. No. Really, I can't honestly say. (R.535)

A reasonable inference based upon this testimony is that Judge 
Thetford's sole purpose in issuing the oral directive was to prevent 
Denny Abbott from filing another civil rights lawsuit. Judge Thetford

4/ In January, 1969 Denny Abbott brought a suit as "next friend"
on behalf of "indigent, scholastically retarded Negro children" 
who v/ere confined at the Montgomery County detention center 
awaiting admission to the state training school which had 
refused to accept them due to overcrowding. The complaint 
charged that the conditions of confinement at the detention 
center and at the state training school constituted cruel and. 
unusual punishment. (PI. Ex.8 , 12/20/72).

15



admitted that, had Denny Abbott complied with the oral instruction 
(as recollected by Judge Thetford), Judge Thetford would not have 
approved Abbott's filing the lawsuit on behalf of black neglected 
children (R.262) Judge Thetford also admitted that he does not 
think that the children's homes sued by Abbott should be forced to 
integrate by a federal lawsuit (PI. Ex 4 12/20/72 pg 41)

The conclusion that the sole purpose of the oral instruction 
was selective enforcement against Denny Abbott's advocacy is also 
supported by the manner in which Judge Thetford issued the instruc­
tion. Judge Thetford explained that he did not issue his oral 
instruction to all of his court employees but only to the employees 
at the juvenile court because "I had never had the problem before with 
any of my employees in any other court." (PI. Ex.4, 12/20/72, pp.31-32) 
He issued an instruction which substantially impairs the First 
Amendment freedoms of his juvenile court staff and never bothered 
to write it down because "I didn't expect to meet it in federal 
court." (R.495). Because of Judge Thetford's failure to write 
down the instruction, "recollections are in conflict as to the 
conditions of the prohibition." (R.667). He admits that he "wasn't 
being technical" (PI. Ex.4, 12/20/72, pg.21) and that he never 
considered the scope of his instruction (PI.Ex.4, 12/20/72, pp.21-23).

Judge Thetford did not succeed in deterring the exercise 
of Denny Abbott's First Amendment rights. But the danger is real 
that in xssuing an oral instruction susceptible of sweeping and 
improper application and then firing the Chief Probation Officer 
for violating that instruction, Judge Thetford has deterred the

16



exercise by the remainder of his juvenile court staff of their most
5/precious freedoms. The fact that this instruction has been issued 

by a Circuit Court judge can only magnify its inhibitory impact.
It is difficult to conceive of a more compelling case for a declara­
tion of facial unconstitutionality.

Should this court declare Judge Thetford's oral instruction 
facially unconstitutional, then Denny Abbott's discharge for exer­
cising his First Amendment freedoms in violation of that instruction 
cannot stand. Shelton v. Tucker, 364 U.S. 479 (1960) ; Russo v.
Central School District No.l, Towns of Rush, etc., N.Y., 469 F.2d 
623 (2nd Cir., 1972)

5/ The Judge's reaction to the lawsuit filed by Denny Abbott in 
1969 against the state training school and the county detention 
center has also undoubtedly had an inhibitory impact on the 
exercise by his employees of their First Amendment rights. The 
Judge's reaction to the lawsuit was to have a bill introduced 
in the legislature to have Abbott's position removed from the 
merit system and placed at his discretion. (R.49-51, 270). At 
the trial Judge Thetford explained why he feels he has closer 
control Over his employees who are excluded from the merit 
system: "Because if they don't do what I tell them to do then they know their job is in jeopardy without any if's, and's, or 
but's."(R.271). When Denny Abbott spoke to the press about the bill to remove his position from the merit system, Judge Thetford 
suspended him for 15 days, claiming that he had instructed Abbott 
not to make any statements to the press relating to the lawsuit 
because it was "damaging the image of the court." (R.43-44,266-269)

17



III. THE ORAL INSTRUCTION OF JUDGE THETFORD WAS UNCONSTITUTIONALLY APPLIED TO PROHIBIT AND 
PUNISH PRESUMPTIVELY-PROTECTED FIRST AMEND­
MENT EXPRESSION WITHOUT SUBSTANTIAL AND 
MATERIAL DISRUPTION OF JUVENILE COURT ADMIN­
ISTRATION, EITHER ACTUAL OR REASONABLY- 
FORESEEABLE.

If this Court declines to take a facial approach to Judge 
Thetford's oral instruction, this Court must then determine whether 
under the circumstances of this case Judge Thetford has applied 
that instruction unconstitutionally. This is the issue confronted 
by the court below.

Judge Thetford may constitutionally "prohibit and punish" 
Denny Abbott's exercise of his First Amendment freedoms of speech, 
assembly and petition only if Abbott's exercise of those freedoms 
has substantially and materially impaired his effectiveness as Chief 
Probation Officer or substantially and materially interfered with 
the administration of the juvenile court. Tinker v. Des Moines 
Independent Community School District, 393 U.S. 503 (1969); Pickering 
v. Board of Education, 391 U.S. 563 (1968); Battle v. Mulholland,
439 F.2d 321 (5th Cir., 1971).

A review of the entire evidence in this case will leave 
this Court "with the definite and firm conviction" that the con­
clusion of the lower court that Judge Thetford has sustained his 
burden to show that Abbott's exercise of his First Amendment rights 
has materially and substantially impaired his effectiveness as Chief 
Probation Officer is a mistake. United States v. United States Gypsum 
Co., 333 U.S. 364, 395 (1948). The record in this case is barren

18



of any evidence that Denny Abbott's exercise of his First Amendment 
freedoms of speech, assembly and petition by filing a lawsuit on 
behalf of black neglected children has ". . .in any way either 
impeded the . . . proper performance of his daily duties in the 
[Youth Aid Facility] or . . . interfered with the regular operation
of the [juvenile court] generally.” Pickering v. Board of Education, 
supra, 391 U.S. at 572-573.

Denny Abbott's primary responsibility as Chief Probation 
Officer is to supervise the other probation officers (R.231). All 
of the evidence in the record relating to the effect of Abbott's 
appearance as "next friend" on behalf of black neglected children 
in a federal lawsuit upon his ability to carry out this responsibility 
indicates that his ability to supervise has in no way been impaired. 
The evidence consists of the testimony of probation officers who are 
under Abbott's supervision, the testimony of the other supervisors 
at the Youth Aid Facility with whom Abbott has daily contact (R.72), 
and the testimony of community agency representatives who have almost 
daily contact with the Chief Probation Officer (R.36) including the 
attendance supervisor and an attendance field social worker of the 
county board of education, the director of social service for the 
Montgomery Community Action Headquarters, and the assistant director 
of the Montgomery Police Department Youth Aid Division.

Every probation officer who appeared testified that the 
filing of the lawsuit on behalf of black neglected children by Abbott 
has had no "adverse effect" upon his ability to perform his job and 
that if Abbott were reinstated as Chief Probation he could continue

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to have a close working relationship with Abbott (R.271, 278, 287). 
Both supervisors who work with Abbott at the Youth Aid Facility 
testified that they have had a good working relationship and could 
continue to have a good working relationship with Abbott if he were 
reinstated (R.573-74, 589). Each representative of a community 
agency who appeared testified that the filing of the lawsuit has 
had no "adverse effect" upon his working relationship with the 
Youth Aid Facility and that he could continue his working relation­
ship if Abbott were reinstated (R.259, 262, 265, 268).

Concerning Abbott's working relationship with Judge Thetford, 
the undisputed evidence is that Judge Thetford is responsible for 
the Domestic Relations Division of the Circuit Court as well as the 
Juvenile Court (R.478), and is responsible for over 40 employees 
at the Youth Aid Facility, including Denny Abbott and the six proba­
tion officers he supervises (R.479). Abbott and Thetford work at 
different locations and generally see each other no more than one 
afternoon each week when Judge Thetford comes to the Youth Aid 
Facility to conduct juvenile court hearings (R.73). They have no 
other contact with each other except for infrequent staff meetings 
(PI. Ex.4, 12/20/72, pg.15) or telephone conversations. (R.73)

Abbott's employment relationship with Judge Thetford is 
" . . .  not the kind of close working relationship for which it 
can persuasively be claimed that person loyalty and confidence are 
necessary to their proper functioning." Pickering v. Board of Education 
supra, 391 U.S. at 570. This conclusion is supported by the un­
disputed evidence that Judge Thetford lost his trust in Denny Abbott

20



as early as January, 1969, when Abbott filed the lawsuit against 
a state training school and the county detention center (R.351) 
and in spite of that they continued their working relationship for 
almost four years to November, 1972 when Judge Thetford fired Denny 
Abbott. Judge Thetford's testimony at the trial that Montgomery 
County has one one the finest Youth Aid staffs in the State of 
Alabama (R.564) indicates that trust is not a necessary element 
of his working relationship with Denny Abbott.

The finding of the lower court that Abbott's exercise 
of his First Amendment freedoms by filing the lawsuit on behalf 
of black neglected children has destroyed the necessary trust 
between Abbott and Judge Thetford and is evidence of a material 
and substantial impairment of Abbott's effectiveness as Chief 
Probation Officer is clearly erroneous. The undisputed evidence 
is that although Judge Thetford lost trust in Denny Abbott as early 
as 1969, they continued to work together with the result that 
Montgomery County has one of the finest Youth Aid facilities in the 
State.

The lower court's finding is erroneous for another reason. 
Nowhere in the record of this case is there a suggestion by Judge 
Thetford that the lack of trust between himself and Denny Abbott 
was a ground for his discharge of Abbott. The only time Judge 
Thetford even mentioned trust in connection with Abbott's activities 
in 1972 was in response to a leading question at the trial (R.563). 
The court below made its own independent finding that lack of trust

21



was a ground for Abbott's discharge and that finding is therefore 
irrelevant. Johnson v. Branch, 364 F.2d 177, 181 (4th Cir. 1966).

As there is no evidence in the record that Abbott's 
exercise of his First Amendment freedoms in any way impeded the 
proper performance of his daily duties, his discharge can only be 
sustained if his exercise of his constitutional rights substantially 
and materially interfered with the regular operation of the juvenile 
court generally, or if the record demonstrates facts "which might 
reasonably have led [Judge Thetford] to forecast substantial dis­
ruption of or material interference with [juvenile court] activities." 
Tinker v. Des Moines Independent Community School District, supra,
393 U.S. at 514.

Aside from its finding concerning the lack of trust between 
Judge Thetford and Denny Abbott, the lower court based its conclusion 
that Abbott's exercise of his First Amendment rights has "materially 
and substantially impaired his usefulness as chief probation officer" 
entirely on its finding that "the proposal for a new black children's 
home before the United Appeal has been suspended until Abbott's suit 
against Brantwood is decided." (R.683). This effect of Abbott's suit 
upon a black children's home project is the only "adverse effect" 
upon the juvenile court which Judge Thetford was able to describe 
at. the trial (R.541) .

This "adverse effect" described by Judge Thetford and relied 
upon by the court below does not constitute a substantial and material 
interference with the regular operation of the juvenile court for

22



two reasons. First, the "adverse effect" was not upon the regular 
operation of the juvenile court but was upon a civic project in 
which Judge Thetford is participating to establish three homes for 
"predominantly Negro children*1 (R.274-275) . Working with Judge 
Thetford on the project are the Kiwanis Club, of which he is member 
(PL. Ex.4 12/20/72, pg.46), the Junior League, the Jewish Ladies 
Federation and the Alabama Montgomery Christian Ladies Organization 
(R.524). Judge Thetford is a member of the steering committee of 
the project along with a clergyman, a professor, a radio announcer 
and others (R. 52 5)1 Although the purpose of this project is to
create a resource which can be utilized by the juvenile court and althoug 
the Circuit Judge in charge of the juvenile court is actively involved 
in the project, the project is not an operation of the juvenile court 
nor is it closely related to the day-to-day operations of the juvenile 
court. It is a cooperative, charitable project of a number of civic 
organizations and as such is a matter of general public interest.
In relation to this project, Denny Abbott must be regarded as a member 
of the general public. Pickering v. Board of Education, supra.

Second, even if this project were part of the regular 
operation of the juvenile court, there is insufficient evidence in 
the record that Abbott's filing of the lawsuit substantially and 
materially interfered with this project. The only evidence relating 
to this question is Judge Thetford's testimony. He testified at the 
trial on January 14 and 15 that the project hopes to obtain the 
support of the United Appeal, which presently supports Brantwood— one 
of the segregated children's homes sued by Denny Abbott on behalf

23



of black children (R.526, 532). According to Judge Thetford, 
Abbott's lawsuit represents a threat to the project because "if 
Brantwood were integrated then there would be —  or the general 
consensus seems to be no need or possibly no need for an additional 
children's home." (R.527). This "general consensus of opinion—
. . . that nothing could be done until after this suit was teminated 
because if the suit was successful the United Appeal would not under­
write it because it would be a duplication of effort"—  emerged at 
a meeting on January 4, 1973. Judge Thetford clarified this 
testimony by adding that " . . .  there were many opinions expressed 
but that is what I got —  the consensus."(R.526).

At his deposition on December 12, 1972 Judge Thetford had 
no evidence but "simply a feeling" that Abbott's lawsuit might 
jeopardize the "Negro home" project (PL.EX.4 12/20/72, pp.29,47).
At the hearing on December 20, Judge Thetford based his conclusion 
that the lawsuit might adversely affect the project on "common 
knowledge". (R.64).

The only evidence in the record that the lawsuit filed by 
Abbott on behalf of black neglected children has interfered with 
Judge Thetford's project is Judge Thetford's view of the "consensus" 
at a meeting held less than two weeks before the trial. There is 
no evidence that any representative of the United Appeal has taken 
the position that the United Appeal may not make a substantial 
commitment to the project until Abbott's lawsuit has been resolved 
and may decline to support the project if Brantwood is integrated.

24



Nor is there any evidence that a representative of the United Appeal 
was even at the meeting on January 4 where this "consensus" emerged.
"As to private citizens, it is exactly this type of restrictive 
response, based on theoretical reactions by others in the actions 
of the accused, which has long been condemned." Battle v. Mulholland 
439 F.2d at 324.

Thus the only evidence presented by the defense of substantial 
and material interference with the work of the juvenile court is 
speculation about the reactions of others. But even if one takes as 
the truth Judge Thetford's speculation about the reaction of the 
United Appeal, these facts are not evidence of an interference with 
the proper administration of the juvenile court. Judge Thetford 
may characterize the effect of Abbott’s lawsuit on his project as 
an "adverse effect" or "interference" but this Court is not bound 
by Judge Thetford's labels. In fact Abbott's litigation does not 
clash with Judge Thetford's project. On the contrary, the relief 
sought in the lawsuit and the goal of Judge Thetford's project are 
the same: the provision of adequate homes for black neglected children.

Judge Thetford's concern is not that Abbott's lawsuit in 
any way obstructs the provision of adequate homes for black children 
but rather that, if Abbott's litigation is successful, then the 
bores for predominately Negro children" which Thetford's project 
seeks to build may not be needed. In other words, if the existing 
segregated homes are required to integrate, then the need to build 
separate facilites for black children is eliminated.

25



Abbott's litigation may well have this effect on Judge 
Thetford's project but whether one characterizes that effect as 
beneficial or adverse depends upon one's political and social 
philosophy. Judge Thetford does not believe that the segregated 
homes in which he places children should be compelled to integrate 
by a federal court (PI. Ex.4, 12/20/72, pg.41). As he stated at 
the trial, "it is certainly my philosophy that you can do a lot more 
with honey than you can with vinegar." (R.546). But Judge Thetford 
cannot constitutionally impose his political and social philosophy 
upon his employees by firing them when they file lawsuits opposed to 
his philosophy and that is precisely what Judge Thetford has done in 
this case. Aside from the elimination of the need for separate 
homes for black children, Judge Thetford was not able to describe 
any other "adverse effect" of Abbott's lawsuit upon his court at 
the trial:

Q. Other than the fact that you mentioned there 
might be a duplication of efforts, what other adverse effect to your knowledge had the filing of that lawsuit 
had on your court?
A. As of now, none; that I know of. (R.541).

Thus this Court is confronted with a record which contains no evidence 
that Abbott's exercise of his constitutional rights has in any way 
interfered with the proper administration of the juvenile court.

The record is also devoid of facts "which might reasonably 
have led [Judge Thetford] to forecase substantial disruption of or 
material interference with [juvenile court] activities." Tinker v.
Des Moines Independent Community School District, supra, 393 U.S.

26



at 514. Aside from the evidence already discussed, the only 
other circumstances which arguably might have led Judge Thetford 
to forecast material and substantial interference with juvenile court 
administration relate to the working relationship between the juvenile 
court and the defendants in the lawsuit filed by Abbott on behalf of 
black neglected children —  the state child welfare department 
(Department of Pensions and Securities) and the private group homes 
for children.

Alabama law provides that Judge Thetford may commit a 
neglected child to "any orphanage, institution, association or agency 
approved by the State Department of Public Welfare " . . .  which is 
willing to receive such child" or may commit to the Department of 
Pensions and Securities such neglected children as it is "equipped 
to care for and agrees to receive". Code of Ala., Tit. 13 §361. 
[emphasis added]. Because the State does not operate its own 
group homes for children, the only resources presently available to 
Judge Thetford for the placement of neglected children, aside from 
foster parent placements, are the group homes sued by Denny Abbott. 
Judge Thetford explained his belief that Abbott's lawsuit could 
damage these resources at his depositon:

He filed suit abainst at least four of my resources 
for the placement of children which may well result in 
them shutting them down or them refusing to take any 
more children from Montgomery because they can do it.
(PI. Ex.4, 12/20/72 pp. 27-28).

The record of this case is barren of any objective evidence to 
support Judge Thetford's belief. Concerning the working relation­
ship between the Department of Pensions and Security and the juvenile

27



court, Judge Thetford testified that his Youth Aid staff has 
continued to work with that Department on a daily basis since 
the filing of Abbott's lawsuit (R.546) and yet he could describe 
no adverse effect of the filing of the lawsuit on that relationship 
(R.541). The only other evidence relating to the Department of 
Pensions and Security is the testimony of two probation officers 
that the probation staff has continued to enjoy a good working 
relationship with that Department since the filing of the suit 
(R.270, 275-276).

The only evidence in support of Judge Thetford's belief 
that the filing of the lawsuit would harm relations between his 
court and the private group homes is the Judge's testimony that the 
administrators of two homes " . . .  have told me they figured this 
suit was going to badly cripple them as far as donations were con­
cerned." (R.65, 548). His belief that the homes would retaliate 
against his court by refusing to accept placements is contradicted 
by evidence that since the filing of the suit by Abbott, Brantwood 
Home has accepted the placement of a child from Judge Thetford's 
court (R.653) and no other placements have been attempted (R.546-547) 
The evidence is also undisputed that the total number of placements 
made to the home*annually by Judge Thetford is small. In 1972,
Judge Thetford made a total of nine placements to the six homes 
sued by Abbott (7 to Brantwood, 1 to Baptist Home, and 1 to the 
Sheriffs’ Boys Ranch)(R.547).

When the Tinker/Pickering standards are applied to this case 
"it is beyond serious question that the activity punished here does

28



not even approach the 'material and substantial' disruption that 
must accompany an exercise of expression, either in fact or in 
reasonable forecast." Shanley v. Northeast Ind. Sch. Dist., Bexar 
County, Tex., supra, 462 F.2d at 970. In Shanley, this court 
stated the guidelines applicable to the "reasonable forecast of 
disruption" standard:

We emphasize, however, that there must be demonstrable 
factors that would give rise to any reasonable forecast 
by the school administration of "substantial and material" 
disruption of school activities before expression may be 
constitutionally restrained. While this court has great 
respect for the intuitive abilities of administrators, 
such paramount freedoms as speech and expression cannot 
be stifled on the sole ground of intuition . . .[the administrators'] viewpoint [must be] substantiated by 
some objective evidence to support a reasonable "forecast" 
of disruption or by actual disruption. [emphasis added]

The entire record of this case contains no "demonstrable factors" 
or "objective evidence" to support a reasonable forecast by Judge 
Thetford of interference either with the proper performance of 
Abbott's duties or with the regular operation of the juvenile court. 
When Judge Thetford fired Denny Abbott, he had "simply a feeling" 
that the lawsuit filed by Abbott would damage the relations between 
his court and the children's homes and would harm his "predominantly 
Negro" children's home project (PI. Ex.4, 12/20/72, pp.29, 477.
Under the Shanley guidelines, Judge Thetford's forecast of inter­
ference must be based on more than a feeling.

A review of the entire evidence in this case will leave 
this Court with the firm and definite conviction that the filing 
of a federal suit by Denny Abbott on behalf of black neglected 
children has in no way impeded the proper performance of his daily

29



duties, has in no way interfered with his working relationships, 
and has in no way interfered with the regular operation of the 
juvenile court. In support of Judge Thetford's fear that the 
lawsuit would interfere with his "predominantly Negro" home project —  
which is not even part of the regular operation of the juvenile 
court —  the defense presented only the Judge's speculation that 
the United Appeal may determine that the "predominantly Negro" 
homes are not needed. In support of Judge Thetford's fear that 
the lawsuit would harm the relations of his court with the Department 
of Pensions and Securities and the children's homes, the defense 
presented only the Judge's testimony that the administrators of two 
children's homes have told him that integration of the homes may 
affect donations. The defense has not met its burden to show 
substantial and material interference, either actual or reasonably- 
foreseeable, with the performance of Abbott’s employment duties or 
with the administration of the juvenile court, and therefore the 
oral instruction of Judge Thetford has been unconstitutionally 
applied to prohibit and punish Abbott's exercise of his First 
Amendment freedoms.

Conclusion

For the foregoing reasons, the judgment of the court below 
should be reversed and this case remanded with directions to grant

30



the relief requested by plaintiff-appellant.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III ANN WAGNER

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

Attorneys for Amicus Curiae

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