Supplemental Brief for Appellees

    IN THE

©Hurt at %  Hmteb States
October Term, 19S3

No. 30

EDWARD E. FIELDS and NATIONAL STATES 
EIGHTS PARTY, and EOBEET LYONS,

Appellants,
v.

CITY OF FxlIEFIELD,
Appellee.

O n  A ppeal  prom  th e  S uprem e  C ourt op A l abama

BRIEF FOR APPELLANTS

M elvin  L . W u l p ,
156 Fifth Avenue,

New York 10, N. Y.,

Charles M organ, J r .,
Bank for Savings Building, 

Birmingham, Alabama,

L eon F riedman /
R ichard  J . M edalie,

425 Park Avenue,
New York, N. Y.,

Attorneys for Appellants.



I N D E X

Opinions Below .............................................   1
Jurisdiction ....................................................................  1
Constitutional Provisions Involved ............................ 2

The Statutes In volved ................................................... 2
Questions Presented....................................................... 3
Statement of the C a se ............................................   4
Summary of Argument .................................................  6

A rgument  :

I. The sections of the Code of Fairfield involved 
herein are unconstitutional and void on their 
face ......................................................................  9
A. Sections 3-4 and 3-5 of the City Code . . .  9
B. Section 14-53 of the City Code .................  12

II. The ordinances and the injunction issued 
pursuant to them are unconstitutional as 
app lied ................................................................  16
A. Sections 3-4 and 3-5 of the City Code . . . .  16
B. Section 14-53 of the City C o d e .................  18

III. Appellants were not foreclosed from testing 
the injunction’s constitutionality by violating 
its terms ............................................................. 21
A. The Mine Workers doctrine does not

apply to First Amendment cases...............  22
B. The primacy of First Amendment rights 

requires this Court to hold that the in­
junction’s constitutionality may be tested
by violating its terms ....... .....................  27

PAGE



IV. The convictions violated the Due Process 
Clause of the Fourteenth Amendment because
there was no evidence tending to prove the 
offenses charged ..................................... 36
A. There was no evidence tending to prove

that petitioners violated the injunction as 
it related to Sections 3-4 and 3-5 of the 
Fairfield City C o d e .....................    37

B. There was no evidence tending to prove
that petitioners had violated the injunc­
tion as it related to Section 14-53 of the 
Fairfield City Code .................................... 38

Conclusion  ..................................................................... 40

Table of Cases Cited

Ayers, Ex Parte, 123 U. S. 443 (1887) .......................  25n
Bantam Books v. Sullivan, 9 L. Ed. 2d 584 (1963) . . 13
Building Service Employees v. Gazzam, 339 U. S.

532 (1950) ..................' ...............................................  23n
u Cantwell v. Connecticut, 310 U. S. 296 (1940) . . 7,13,15, 21

Carpenters and Joiners Union v. Ritter’s Cafe, 315
U. S. 722 (1952) ......................................... ............  23n

Congress of Racial Equality v. Douglas, 318 F. 2d
95 (C. A. 5, 1963) ..........‘ .........................................27, 36n

Cox v. New Hampshire, 312 U. S. 569 (1941) ............ 15
DeJonge v. Oregon, 299 U. S. 353 (1937).................. 7,19, 20
Feiner v. New York, 340 U. S. 315 (1951) . . 9, 29n, 34, 35 
Fisk, Ex Parte, 113 U. S. 713 (1885) .......................  25n

v"' Garner v. Louisiana, 368 U. S. 157 (1961 ).................. 9, 36
Giboney v. Empire Storage & Ice Co., 336 U. S. 490

(1949) ..........................................................................  23n
- Green, In the Matter of, 369 U. S. 689 (1962 )..........8, 24, 25



PAGE

Hague v. C.I.O., 307 U. S. 498 (1939) ........................ 15
Henry, Ex Parte, 147 Tex. 315, 215 S. W. 2d 588

(Tex. Sup. Ct. 1948) ...............................................  33n
Hughes v. Superior Court, 339 U. S. 460 (1960) . .. 23n
Jameson v. Texas, 318 U. S. 412 (1943) .....................  6,10
Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)

7,13,16,17
Kasper v. Brittain, 245 F. 2d 92 (C. A. 6 195 7 )........  9, 35n
Kingsley Books, Inc. v. Brown, 354 U. S. 436

(1957) ......................................... .......................... 18,19, 32n
Kovacs v. Cooper, 336 IT. S. 77 (1949) ...................... 15
Kunz v. New York, 340 U. S. 290 (1951)........7,12,13,17,19

Local Union 10 v. Graham, 345 IT. S. 192 (1953) .. 23n
Lovell v. Griffin, 303 U. S. 444 (1938)..............6, 7,11,13,15

Masses Pub. Co. v. Patten, 244 Fed. 535 (S. D. N. Y.
1917) rev. 246 Fed. 24 (2d Cir. 1917) .................. 35

NAACP v. Alabama, 357 U. S. 449 (1958) .............. 25
Near v. Minnesota, 283 U. S. 697 (1931) ..........7,13,16,17
Niemotka v. Maryland, 340 U. S. 268 (1961). . .7 ,12n, 13,15

Poulos v. New Hampshire, 345 U. S. 395 (1953) . . . .  33n
Rockwell, Matter of v. Morris, 12 A. D. 2d 272 (1st 

Dept. 1961) a ff’d 2115 N. Y. S. 2d 502 (1961)
cert. den. 368 U. S. 913 (1961) .................................  9, 34

Rowland, Ex Parte, 104 U. S. 604 (1882) .................. 25n
Saia v. New York, 334 U. S. 558 (1948) ......................  7,13
Sawyer, In Re, 124 U. S. 200 (1888) .......................  25n
Schneider v. State, 308 U. S. 147 (1939 )..................6,10,13
State Board of Education v. Barnette, 319 U. S. 624

(1943) .......................................................................... 22
State ex rel. Liversey v. Judge of Civil District 

Court, 34 La. Ann. 741 (La. Sup. Ct. 1882) . . . .  33n
State of Alabama v. Arthur D. Gray, et al., Circuit

Court of Talladega County, in Equity, No. 9760 . . 3Qn



IV

State v. Morrow, 57 Ohio App. 30, 11 N. E. 2d 273
(Ohio Ct. of App. 1937) ........................................  33n

Staub v. Baxley, 355 U. S. 313 (1958). .7 ,12n,13,15, 29, 32, 33 
Stromberg v. California, 283 U. S. 359 (1931) .......... 11
Talley v. California, 362 U. S. 60 (1960) .................. 6,10
Terminiello v. Chicago, 337 U. S. 1 ............................  11,12
Thomas v. Collins, 323 U. S. 516 (1945 )........7,16,19, 20, 32
Thompson v. Louisville, 362 U. S. 199 (1960) .......... 9, 36
Times Film Corp. v. Chicago, 365 U. S. 43 (1961) . . .  13
Tucker, Ex Parte, 110 Tex. 335, 220 S. U. 75 (Tex.

Sup. Ct. 1920) .......................................   33n
United Gas, Coke & Chemical Workers v. Wisconsin, 

Employment Relations Board, 340 U. S. 383
(1941) ......................................................................... 8,24,25

United Mine Workers v. United States, 330 U. S. 258
(1947) .........................................7, 8, 21, 22, 23, 23n, 24, 25,

25n, 26, 27, 27n, 28, 31, 32
Whitney v. California, 274 U. S. 357 (1927) .......... 29n

PAGE

Other Authorities Cited

Chafee, Free Speech in the United States (Harvard 
University Press, 1946), 326, 342 ...........................  31n

Chafee, Some Problems of Equity (Univ. of Mich.
Law School, 1950) Chapters V III and IX  .......... 28n

Cox, The Void Order and the Duty to Obey, 16 Univ. 
of Chicago Law Rev. 86 (1948) .............................  28n

Emerson, The Doctrine of Prior Restraint, 201 L. and
Contemp. Prob. 648 (1955) .............................. 7,13,14,15

General City Code of Fairfield, Alabama:
Section 3-4 ..................................................2,3,6,9,16,18
Section 3-5 ..................................... 2, 3, 6, 9,10,16,18, 37
Section 14-53 ...............................3, 6, 7,12,15,18, 21, 38



V

New York Times:
October 30, 1962 .....................................................
November 10, 1962 .................................................
November 30, 1962 .................................................
April 23, 1963 .........................................................
May 31, 1963 ...........................................................
June 7, 1963 .............................................................

The Norris-LaGuardia Act, 47 Stat. 70, e. 90, 29
U. 8. C. § 101 .................................................. .

The Supreme Court and Civil Liberties, 4 Vanderbilt 
Law Rev. 533 (1951) .................................................

United States Constitution:
Amendment 1 ................................... 2, 3, 8, 20, 21, 27, 28,

29, 30n, 32, 33, 33n
Amendment 14 ......................................... 2, 3,19, 33n, 36

Watt, The Devine Right of Government, by Judi­
ciary, 14 Univ. of Chicago Law Rev. 409 (1947) .. 28n

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

PAGE

30n 
30n 
30n 
30n 
31n 
3 In

22n

28n



IN  T H E

g>ujxrottp (tort uf tip TUnxUb States
October Term, 1963

No. 30

E dward E. F ields and  N ational  S tates E ights P arty

and E obert L yons,
Appellants,

against

C ity  of F airfield ,
Appellee.

BRIEF FOR APPELLANTS

Opinions Below

The opinion of the Supreme Court of Alabama affirming 
appellants’ convictions is reported at—Ala.— , 143 So. 2d 
177 and is contained in the Eecord at pp. 86-90. No opinion 
was written by the Circuit Court of Jefferson County, but 
its oral opinion rendered at the time of conviction is con­
tained in the Eecord at pp. 71-73.

Jurisdiction

Appellants Fields and Lyons were adjudged guilty of 
criminal contempt on October 12, 1961. The judgment was 
affirmed and entered by the Alabama Supreme Court on 
June 14, 1962 (E. 91) and a timely application for rehearing 
denied on July 12, 1962 (E. 93). Notice of Appeal to the 
Supreme Court of the United States was filed with the Su­
preme Court of Alabama on September 10, 1962 (E. 95-97),



2

and an amendment to the Notice was tiled September 18, 
1962 (R. 98-99). Execution of sentence was stayed by the 
Alabama Supreme Court until final disposition by this 
Court (R. 93-94). Probable jurisdiction was noted on March 
18, 1963 (R. 99).

Jurisdiction of this Court rests on 28 U. S. C. § 1257(2).

Constitutional Provisions Involved

U nited  S tates C onstitution

Amendment 1:
“ Congress shall make no law * '* * abridging the 

freedom of speech, or of the press; or the right of the 
people peaceably to assemble and to petition the Gov­
ernment for a redress of grievances.”

Amendment 14, Section 1:
“ * * * No State shall * * * deprive any person of 

life, liberty or property, without due process of law.”

The Statutes Involved

General C ity  C ode op F airfield , A labama

Sec. 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 
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. [O'rd. No. 354, §5 (1957).]



3

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 with­
out 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 General 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 jjrocess 
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 Four­
teenth 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 con­
strued and applied, may be precluded where appellants 
are found in contempt of an ex parte temporary injunction 
which 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 disregard the temporary injunction rather than contest­
ing it by orderly and proper procedure,”  where the conse­
quence 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

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

Appellant Fields is Information Director of the Na­
tional States Eights Party. Appellant Lyons is Youth Or­
ganizer of the Party (R, 58). The Party, which stands 
for white supremacy and segregation (R. 53), has been on 
the ballot in Alabama (R. 60).

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 h ite  W orkers 
M eeting

* N iggers A re T akin g  O ver U n io n s !

*N iggers W an t  Ou r  P arks A nd  P oods!

•Niggers D em and  M ixed S chools !

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 From 4 States 

Time—8 P. M. Date—Wed. Oct. 11
Place—5329 Valley Road

In Downtown Fairfield, Alabama 
A bove th e  Car W ash

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

Box 786, Birmingham, Alabama 
P ublic I nvited 

Come and Bring Your Friends



5

At about 5:00 P. M., Tuesday, October 10, 1961, tbe 
day before the scheduled meeting, the Mayor of Fairfield 
sent a notice to appellant Fields that he had violated a 
city ordinance which prohibited the distribution of hand­
bills. The Mayor also informed Fields that another ordi­
nance forbade public meetings without a permit (E. 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 ap­
pointment for 2:00 P. M. that afternoon for further dis­
cussion (R. 55). Around noon of that day, however, Fields 
was served with an injunction (R. 25) forbidding him, the 
National States 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 (R. 5-6) was issued on the ex parte 
application of the City of Fairfield. The Bill of Complaint 
(R. 1-4) alleged, among other things, that the appellants 
were “ distributing’ 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 
meeting “ is to create ill will, disturbances, and disorderly 
conduct between the races,”  and that the meeting “ will 
constitute a public nuisance, injurious to the health, com­
fort, or welfare of the City of Fairfield and * * # is calcu­
lated 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 trans­
ferred to the city park at Lipscomb, a nearby town (R. 18,



6

26, 28, 49, 54, 60, 62, 63).1 Subsequent to the service of 
the injunction, no meeting was held in Fairfield (R. 20, 
48, 56), no handbills were distributed (R. 20, 24, 28, 44, 
47, 54, 64, 72),2 nor was there any disturbance whatsoever 
(R, 14, 26-30, 54).

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.

The Alabama Supreme Court affirmed the convictions 
on the ground that the question of a statute’s constitu­
tionality may not be raised “ in collateral proceedings on 
appeal from a judgment of conviction for contempt of 
the order or decree * *

Summary of Argument

I.

A. Sections 3-4 and 3-5 of the Code of Fairfield, which 
impose an absolute ban upon the distribution of handbills 
and circulars, are unconstitutional on their face. Lovell v. 
Griffin, 303 U. S. 444 (1938); Schneider v. Stale, 308 IT. S. 
147 (1939); Jamison v. Texas, 318 U. S. 412 (1943); 
Talley v. California, 362 U. S. 60 (1960).

B. Section 14-53 of the City Code, which makes it un­
lawful for anyone to hold a public meeting in Fairfield 
“ without first having obtained a permit from the Mayor to 
do so,”  is likewise unconstitutional on its face. Lovell v.

1 Earlier the same day, appellant Lyons and another person were 
prohibited by the police from entering the meeting place (R . 34, 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. 21.



7

Griffin, supra; Cantwell v. Connecticut, 310 U. S. 296 (1940); 
Saiav. New York, 334 U. S'. 558 (1948); NiemotJco v. Mary­
land, 340 U. S. 268 U. S. (1961) ;Kunz v. New York, 340 U. S. 
290 (1951); Stauib v, Baxley, 355 U. S. 313 (1958). Section 
14-53, on its face, is a prior restraint, “ a form of infringe­
ment upon freedom of expression to be sepecially con­
demned.”  Burstyn v. Wilson, 343 II. SI 495, 504. Emerson, 
The Doctrine of Prior Restraint, 20 L. and Contemp. Prob. 
648 (1955). The ordinance does not embody “ narrowly 
drawn, resonable and definite standards for the officials to 
follow”  and has no “ definite standards or other controlling 
guides governing the action of the Mayor # * * in granting 
or withholding a permit.”  Niemotko v. Marylond, supra; 
Stauh v. Baxley; supra.

II.

A. The injunction and ordinances, as applied against the 
distribution of appellants’ handbills, violated the rule of 
law established in Near v. Minnesota, 283 U. S. 697 (1931). 
In addition, the appellants were convicted not for violating 
the explicit terms of the injunction but rather for distribut­
ing copies of their newspaper which had not been expressly 
enjoined.

B. The injunction and ordinances, as applied against the 
appellants ’ meeting, even if valid as to a meeting to be held 
in the street or a public park, are clearly invalid when ap­
plied against a meeting to be held in a private hall. DeJonge 
v. Oregon, 299 U. S. 353 (1937); Kunz v. New York, supra; 
Thomas v. Collins, 323 U. S. 516 (1945).

III.

A. The decision of the Alabama Supreme Court that, on 
the authority of United Mine Workers v. United States, 
330 U. S. 258 (1947), the appellants were foreclosed from 
challenging the constitutionality of the injunction against



8

them “ in collateral proceedings on appeal from a judgment 
of conviction for contempt of the * * * decree,”  is in error. 
The Mine Workers doctrine does not apply where First 
Amendment rights are concerned. That case revolved 
around the question of conduct subject to statutory regula­
tion rather than conduct fully protected by the Constitu­
tion. Second, it involved the complex problems of statutory 
interpretation in a factual setting that had not previously 
received judicial consideration. Third, it was concerned 
with the problem that arose in the context of an industrial 
dispute. In addition, United Gas, Coke & Chemical Work­
ers v. Wisconsin Employment Relations Board, 340 U. S. 
383 (1941), and In the Matter of Green, 369 U, S. 689 (1962), 
further support the view that appellants may not be fore­
closed from testing the underlying validity of the injunction 
simply because they have asserted the right in the course 
of contempt proceedings.

Even in Mine Workers own terms, the injunction in this 
case was clearly frivolous and could be violated with im­
punity. All of the Justices in the Mine Workers case, 
except two, expressed the belief that there were circum­
stances where an order of the court was so frivolous that 
its violation could not be punished. The facts of this case 
come within that explicit exception.

B. As an original proposition, the primacy of First 
Amendment rights requires this Court to hold that the in­
junction’s constitutionality may be tested by violating its 
terms. Failure to so hold will inevitably result in the sup­
pression of First Amendment rights in a wide variety of 
circumstances heretofore fully protected. This rule must 
be adopted both in cases where the injunction and the 
ordinances on which they are based are clearly invalid, such 
as here, and in cases where their validity are open to ques­
tion. No other rule will allow that “ free and open en­
counter”  which must be permitted immediately when con­
cern for an issue of public importance is high.



9

That the municipal authorities thought that violence 
might erupt were appellants ’ meeting allowed to take 
place, does not change the situation. No one can be sure 
that a scheduled speech will go forward in the manner con­
templated or that it will have the effect predicted. When a 
speaker “ passes the bounds of argument or persuasion and 
undertakes incitement to riot”  it is clear that the police can 
“ prevent a breach of the peace.”  Feiner v. New York, 340 
IT. S. 315 (1951); Rockwell v. Morris, 12 A. D. 2d 272, af­
firmed 215 N. Y. S. 2d 502, cert, denied 368 U. 8. 913. Com­
pare Kasper v. Brittain, 245 F. 2d 92 (C. A. 6, 1957).

IV.

The convictions violated the due process clause of the 
Fourteenth Amendment because there was no evidence tend­
ing to prove the offense as charged. Thompson v. Lomsville, 
362 IT. 8. 199 (1960); Garner v. Louisiana, 368 IT. S. 157 
(1961). There is not a shred of evidence in the record to 
show that any of the handbills against which the injunction 
was directed were distributed. Likewise, there is no evi­
dence that the appellants violated the order enjoining them 
from holding a public meeting in the City of Fairfield. The 
record clearly shows that “ there was no meeting held.”

ARGU M ENT

i

The sections of the Code of Fairfield involved 
herein are unconstitutional and void on their face.

A. Sections 3-4 and 3-5 of the City Code.

Section 3-4 of the Code of Fairfield declares it “ unlaw­
ful 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 handbills, circulars, 
dodgers or other advertising matter” . Section 3-5 simi­
larly bans distribution of handbills by placing them in



10

automobiles. These statutes are almost identical to the 
statutes passed by the cities of Los Angeles, California, 
Milwaukee, Wisconsin, and Worcester, Massachusetts, and 
held unconstitutional in Schneider v. State, 308 U. S. 147 
(1939). Each of the statutes there involved also placed an 
absolute prohibition upon the distribution of handbills on 
streets, sidewalks or parks of each of the respective muni­
cipalities. The Los Angeles Muncipal Code eaxmined in 
Schneider also forbade the placing of handbills in auto­
mobiles or vehicles just as § 3-5.

The Court through Justice Roberts declared that the 
statutes were unenforceable against the petitioners, each of 
whom had distributed leaflets on the public streets of the 
municipalities involved. The Court dismissed the respond­
ents’ argument that the statutes were a valid exercise of 
police power to prevent littering of the streets:

“ We are of opinion that the purpose to keep the 
streets clean and of good appearance is insufficient 
to justify an ordinance which prohibits a person 
rightfully on a public street from handing literature 
to one willing to receive it. Any burden imposed 
upon the city authorities in cleaning and caring for 
the streets as an indirect consequence of such dis­
tribution results from the constitutional protection 
of the freedom of speech and press. This constitu­
tional protection does not deprive a city of all power 
to prevent street littering. There are obvious meth­
ods of preventing littering. Amongst them is the 
punishment of those who actually throw papers on 
the streets.”  308 U. S. at 162.

Similarly, in Jamison v. Texas, 318 U. S. 412 (1943), 
an absolute prohibition against the distribution of hand­
bills was held unconstitutional as applied to a member of 
Jehovah’s Witnesses who distributed handbills announcing 
a meeting of her group to hear an address by one of its 
leaders; and in Talley v. California, 362 U. S. 60, 65 (1960), 
a municipal ordinance which forbade the distribution of



11

handbills which did not bear the names of the persons who 
prepared, distributed or sponsored them was also held 
unconstitutional and “ void on its face.”

A statute is void on its face if it is so comprehensive 
that it forbids or punishes the normal and ordinary dissemi­
nation of information or is “ not limited to ways which 
might be regarded as inconsistent with the maintenance of 
public order, or as involving disorderly conduct, the moles­
tation of the inhabitants, or the misuse or littering of the 
streets.”  Lovell v. Griffin, 303 U. S. 444, 451 (1938).

There is ample justification for declaring unconstitu­
tional under all circumstances sweeping prohibitions 
against free speech and any punishment for violating these 
prohibitions. In one of its earlier free-speech cases, this 
Court said:

“ The maintenance of the opportunity for free 
political discussion to the end that government may 
be responsive to the will of the people and that 
changes may be obtained by lawful means, an oppor­
tunity essential to the security of the Republic, is 
a fundamental principle of our constitutional system. 
A  statute which on its face, and as authoritatively 
construed, is so vague and indefinite to permit the 
punishment of the fair use of this opportunity is re­
pugnant to the guaranty of liberty contained in the 
Fourteenth Amendment.”  Stromberg v. California, 
283 TJ. S. 359, 369 (1931).

Similarly, this Court stated in Terminiello v. Chicago, 337 
U. S. 1, 4-5 (1949):

“ A  function of free speech under our system 
of government is to invite dispute. It may indeed 
best serve its high purpose when it induces a condi­
tion of unrest, creates dissatisfaction with conditions 
as they are, or even stirs people to anger. Speech 
is often provocative and challenging. It may strike 
at prejudices and preconceptions and have profound 
unsettling effects as it presses for acceptance as 
an idea. That is why freedom of speech * * * is * * *



12

protected against censorship or punishment, unless 
shown likely to produce a clear and present danger 
of a serious substantive evil that rises far above 
public inconvenience, annoyance or unrest. * * * 
There is no room under our constitution for a more 
restrictive view. For the alternative would lead to 
standardization of ideas either by legislature, courts 
or dominant political or community groups.”

The limited areas in which restrictions on free speech 
are constitutionally permitted are more adequately covered 
by specific statutes dealing with specific evils which can 
be constitutionally restricted. ‘ ‘ There are appropriate pub­
lic remedies to protect the peace and order of the commu­
nity if appellant’s speeches should result in disorder or 
violence.”  Kwnz v. New York, 340 U. S. 290 (1951). Thus 
it follows that any comprehensive statute absolutely for­
bidding the dissemination of information must fall even 
without an inquiry as to its application in a particular case. 
I f construed to cover only obscene literature and disorderly 
conduct, it is unnecessary.3 If construed to cover more 
than these areas, it is invalid because of its repressive effect 
on constitutionally protected activity.

B. Section 14-53 of the City Code.

Section 14-53 of the General City Code of Fairfield 
makes it “ unlawful”  for anyone “ to hold a public meet­
ing”  in Fairfield “ without first having obtained a permit 
from the mayor to do so.”  A cursory examination of the 
ordinance shows quite clearly that it also “ is invalid on its

3 It is clear that it is the function of the state courts to construe 
such statutes as being so limited. Unless the state court has restricted 
the application of the statute to these situations, this Court will 
assume that it is to be applied as written ( i . e to cover all dissemina­
tion of information). See Niemotko v. Maryland, 340 U. S. 268 
(1951); Staub v. Baxley, 355 U. S. 313 (1958). No restrictive 
limitations have been read into the Fairfield code by the Alabama 
courts. To the contrary, the Alabama Supreme Court, in this case, 
found them constitutional as written (R . 88).



13

face”  (.Stcmb v. Baxley„ 355 IT. S. 313, 321 (1958)) since it 
“ makes the peaceful enjoyment of freedoms which the Con­
stitution guarantees contingent upon the uncontrolled will 
of an official * * * by requiring a permit or license, which 
may be granted or withheld in the discretion of such offi­
cial”  (id. at 322). It therefore imposes “ an unconstitu­
tional censorship or prior restraint upon the enjoyment 
of those freedoms.”  Ibid.; accord, e.g. Cantwell v. Com-, 
necticut, 310 U. S. 296, 305 (1940); Kims v. New York, 340 
U. S. 290, 293 (1951); Lovell v. Griffin, 303 U. S. 444, 451 
(1938) ; Niemotko v. Maryland, 340 U. S. 268, 273 (1951) ; 
Saia v. New York, 334 U. S. 558, 559-60 (1948).

This Court has consistently considered a system of prior 
restraint as a more serious violation of the First Amend­
ment than a system of subsequent punishment. As the 
Court stated in Joseph Burstyn, Inc. v. Wilson, 343 U. S. 
495, 504 (1952): “ This Court recognized many years ago 
that such a previous restraint is a form of infringement 
upon freedom of expression to be especially condemned. 
Near v. Minnesota, 283 U. S. 697 (1931).”  See also Kun-z 
v. New York, 340 U. S. 290, 294-95 (1951). And as it further 
stated in Bantam Books v. Sullivan, 9 L. Ed. 2d 584, 593 
(1963): “ Any system of prior restraints of' expression 
comes to this Court bearing a heavy presumption against 
its constitutional validity.”  Accord, e.g., Schneider v. 
State, 308 U. S. 147, 164 (1939).

The reasons why prior restraints have received special 
constitutional condemnation have been eloquently discussed 
by members of this Court on previous occasions and need 
not be elaborated upon in any great detail. See, e.g., Times 
Film, Corp. v. Chicago, 365 U. S. 43, 50 (1961) (dissenting 
opinion). Suffice it merely to quote a few select passages 
from the landmark article on the subject—Emerson, The 
Doctrine of Prior Restraint, 20 L. & Contemp. Prob. 648 
(1955) :

“ [1] A system of prior restraint * * * subjects 
to government scrutiny and approval all expression



14

in the area controlled—the innocent and borderline 
as well as the offensive, the routine as well as the 
unusual [p. 656].”

“ [2] Under a system of prior restraint, the 
communication, if banned, never reaches the market 
place [of ideas] at all [p. 657].”

“ [3] A system of prior restraint is so con­
structed as to make it easier, and hence more likely, 
that in any particular case the government will rule 
adversely to free expression [ibid.].”

“  [4] Under a system of prior restraint, the issue 
of whether a communication is to be suppressed or 
not is determined by an administrative rather than 
a criminal procedure [ibid.].”

“  [5] A system of prior restraint usually operates 
behind a screen of informality and partial conceal­
ment that seriously curtails opportunity for public 
appraisal and increases the chances of discrimina­
tion and other abuse [p. 658].”

“ [6] Perhaps the most significant feature of 
systems of prior restraint is that they contain with­
in themselves forces which drive irresistibly toward 
unintelligent, overzealous, and usually absurd ad­
ministration [ibid.].”

“ [7] [A] system of prior restraint * * * means, 
under most circumstances, less rather than more 
communication of ideas; it leaves out of account those 
bolder individuals who may wish to express their 
opinions and are willing to take some risk; and it 
implies a philosophy of willingness to conform to 
official opinion and a sluggishness or timidity in 
asserting rights that bodes ill for a spirited and 
healthy expression of unorthodox and unaccepted 
opinion [p. 659].”

“ [8] A  system of prior restraint is, in general, 
more readily and effectively enforced than a system 
of subsequent punishment. * * * A  penal proceeding 
to enforce a prior restraint normally involves only 
a limited and relatively simple issue—whether or



15

not the communication was made without prior ap­
proval [ibid.].”

This Court has recognized, however, that a general and 
nondiscriminatory piece of legislation which merely regu­
lates ‘ ‘ the times, the places, and the manner of soliciting 
upon streets, and of holding meetings thereon”  (Cantwell 
v. Connecticut, supra at 304) will be upheld as a valid 
regulatory statute (see, e.g., Cox v. New Hampshire, 312 
U. 8. 569 (1941); Kovacs v. Cooper, 336 U. 8. 77 (1949)). 
The general theory behind the upholding of this type of 
statute is that streets, parks and other public places may 
be reasonably regulated for the general interest, comfort 
and convenience of all the citizenry or in consonance with 
the peace, good order and public safety of the community. 
See, e.g., Hague v. C.I.O., 307 U. S. 496, 515 (1939); Lovell 
v. Griffin, supra at 451.

If, however, a statute does not embody “ narrowly drawm, 
reasonable and definite standards for the officials to fol­
low”  (Niemotko v. Maryland, supra at 271), if a statute 
has no “ definitive standards or other controlling guides 
governing the action of the Mayor and Council in granting 
or withholding a permit”  (Staub v. Baxley, supra at 322), 
it does not come within the exception to the general rule 
and must be struck down as an unconstitutional prior re­
straint. Since Section 14-53 of the Fairfield Code prohibits 
the holding of public meetings “ of any kind at any time, 
at any place, and in any manner without a permit from 
the * * * [mayor]”  (Lovell v. Griffin, supra at 451), it 
cannot be saved from unconstitutional invalidity. More­
over, since “ the ordinance is void on its face, it was not 
necessary for appellant to seek a permit under it.”  Lovell 
v. Griffin, supra at 452-53.



16

I 1

The ordinances and the injunction issued pursuant 
to them are unconstitutional as applied.

What is particularly aggravating about the present 
case is that, not only were the defendants absolutely pro­
hibited by Section 3-4 and 3-5 of the Fairfield Code from 
distributing their handbills announcing the meeting and 
prohibited by Section 14-53 from holding the meeting with­
out permission from the mayor, but they were also en­
joined in advance by the issuance of a temporary injunc­
tion “ from holding a public meeting # * # as announced, and 
from distributing further * * # handbills announcing such 
meeting such as were [previously] distributed * * * ”  
(R. 6).

We have already noted (supra, Part IB) that, with 
j certain limited exceptions, administrative prior restraints 
| are unconstitutional, being considered “ as a form of in­

fringement upon freedom of expression to be especially 
; condemned”  (Joseph Burstyn, Inc. v. Wilson, supra at 

504). Judicial prior restraints are to be sanctioned no 
more than administrative ones. See, e.g., Near v. Minne­
sota, supra; Thomas v. Collins, 323 U. S. 516 (1945).

A. Sections 3-4 and 3-5 of the City Code.

The injunction against the distribution of the handbills 
was a particularly noxious constitutional violation in view 
of the rule of law established in Near v. Minnesota, supra. 
In that case, the state court enjoined the defendants from 
issuing “ any publication whatsoever which is a malicious, 
scandalous or defamatory newspaper, as defined by law”  
(283 U. S. at 706). The Supreme Court held the statute 
and injunction to be a prior restraint abridging the free- 

j dom of the press. Chief Justice Hughes, speaking for the 
majority, stated that “ the statute in question does not 

' deal with punishments; it provides for no punishment, ex­



17

cept in cases of contempt for violation of the court’s order, 
but for suppression and injunction, that is, for restraint 
of publication”  (id. at 715). The Chief Justice went on to 
enunciate the doctrine of prior restraint as applied to the 
freedom of the press (id. at 716):

“ The exceptional nature of its limitations places 
in a strong light the general conception that liberty 
of the press, historically considered and taken up by 
the Federal Constitution, has meant principally, al­
though not exclusively, immunity from previous re­
straints and censorship.”

See Joseph Burstyn, Inc. v. Wilson, supra at 504. The 
Court further noted that “ the immunity of the press from 
previous restraint”  was not made less necessary by the 
fact that “ miscreant purveyors of scandal”  may abuse 
the freedom of the press. Quite the contrary, “ subsequent 
punishment for such abuses as may exist is the appropriate 
remedy, consistent with constitutional privilege”  (id. at 
720). Cf. Kunz v. New York, supra at 294-95. When, as 
in the present case, an injunction issues to prevent the dis­
tribution of literature, and especially when that injunc­
tion is pursuant to an unconstitutional statute, the in­
junction must be considered invalid as a prior restraint 
unconstitutionally infringing on the appellants’ freedom 
of press.

Indeed, in the present case, the violation is all the more 
serious since the trial court explicitly found that there was 
“ no evidence that the pamphlet was distributed”  (R. 72). 
What the court in fact acknowledged was that the defendants 
had distributed copies of their newspaper, The Thunderbolt 
(see R. 21), which had not been expressly enjoined. Al­
though it was admitted that there was no announcement 
of the meeting in the issue distributed (see E. 23, 25), the 
court held that the newspaper “ 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.



18

72). Thus, the high order of protection conferred by the 
Constitution on the freedom of the press was arrantly dis­
regarded. Indeed, even if Sections 3-4 and 3-5 had been 
constitutional on their face and even if the injunction against 
the original handbills had been valid, the Statute and in­
junction would have had to be declared unconstitutional as 
applied in the present case since, unlike even the statute 
in Kingsley Books, Inc. v. Brown, 354 U. S. 436, 445 (1957), 
they failed to withhold “ restraint upon matters not al­
ready published and not yet found to be offensive.”

B. Section 14-53 of the City Code.

The reasons for invalidating Section 14-53 of the Fair- 
field Code as an unconstitutional prior restraint (see supra, 
part I B )  are equally applicable for purposes of invalidat­
ing the injunction issued pursuant to the ordinance.

The record here is barren of evidence of any danger of 
violence, even is such evidence were relevant. See Part III 
(B) (3), infra. The plaintiff’s bill of complaint contains 
no factual allegations to support its conclusions that the 
purpose of the meeting was “ to create ill will and disturb­
ances between the races,”  and that it “ will constitute a 
public nuisance, injurious to the health, comport, or welfare 
of the City of Fairfield and * * * is calculated to create a 
disturbance, incite to riot, disturb the peace, and disrupt 
the peace and good order in the City of Fairfield”  (R. 2). 
The record clearly shows that a meeting held by the de­
fendants on the previous evening had been “ a very peace­
able, normal meeting”  (R. 47). Moreover, the police officer 
who arrested appellant Fields admitted that there was no 
disturbance of any kind at the site of the scheduled meeting 
either before or at the time of the arrest. He further testi­
fied that he did not see Dr. Fields fight with anyone, that 
there was “ no trouble at all”  and that the entire situation 
was “ very peaceful”  (R. 19).

Even if the prior restraint had been valid as to a meeting 
held in the street or a public park it could hardly have been



19

applicable to a meeting of the National States Rights Party 
—a political party—which was to be held in a private hall, 
“ above the Car Wash”  (R. 4). See Kunz v. New York, 
supra at 307 (Jackson, J., dissenting). This Court has con­
sistently circumscribed 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 disagreeable, 
to the government.

Thus, for example, in De Jonge v. Oregon, 299 U. S. 353 
(1937), De Jonge’s “ sole offense 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 (id. at 365) :

“ The holding of meetings for peaceable political 
action cannot be proscribed. Those who assist in the 
conduct of such meetings cannot be branded as crimi­
nals on that score. The question, if the rights of free 
speech and peaceable assembly are to be preserved, is 
not as to the auspices under which a meeting is to be 
held but as to its purpose; not as to the relations of 
the speakers, but whether their utterances transcend 
the bounds of the freedom of speech which the Con­
stitution protects. If the persons 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 con­
spiracy or other violation of valid laws. But it is a 
different matter when the State, instead of prosecut­
ing them for such offenses, seizes upon mere partici­
pation in a peaceable assembly and a lawful public 
discussion as the basis for a criminal charge.”

Similarly, in Thomas v. Collins, 323 U. S. 516 (1945), an 
official of a labor union was held in contempt of a restraining 
order—issued ex parte, as here— that forbade him from vio­
lating a Texas statute regulating the solicitation of member­
ship in trade unions. The order was issued in anticipation



20

) of a meeting at which the appellant was scheduled to speak. 
He appeared and spoke at the meeting, and was held in 
contempt. The Court, holding that the statute contravened 
the First Amendment, stated, (323 U. S. at 536):

“ The assembly was entirely peaceable, and had 
no other than a wholly lawful purpose. The state­
ments forbidden were not in themselves unlawful, 
had no tendency to incite to unlawful action, involved 
no element of clear and present, grave and immediate 
danger to the public welfare. * * * We have here 
nothing comparable to the case where use of the word 
‘ fire’ in a crowded theater creates a clear and present 
danger which the State may undertake to avoid or 
against which it may protect. Schenck v. United 
States, 249 U. S. 47.”

i What was thus involved was the basic right of freedom of 
expression which could not be circumscribed. As the Court 
explained (id. at 540) :

“ If the exercise of free speech and free assembly 
cannot be made a crime, we do not think this can be ac­
complished by the device of requiring previous reg­
istration as a condition for exercising them and mak­
ing such a condition the foundation for restraining in 
advance their exercise and for imposing a penalty for 
violating such a restraining order. So long as no 
more is involved than exercise of the rights of free 
speech and free assembly, it is immune to such a 
restriction. * * * We think that a requirement that 
one must register before he undertakes to make a 
public speech to enlist support for a lawful movement 
is quite incompatible with the requirements of the 
First Amendment.”

The holdings in Be Jonge and Thomas have direct ap­
plicability here. The sentencing court revealed quite can­
didly the true purpose for issuing the restraining order.
As it stated (R. 72):

“ Back several years ago we did have a movement 
to move into one of our public parks here but that



21

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. We are going * # * 
to do everything that we can to keep people from 
agitating trouble.”

Since, however, a State “ may not suppress free communi­
cation of views # # * under the guise of preserving desirable 
conditions”  (Cantwell v. Connecticut, supra at 308), the 
court order, pursuant to Section 14-53, enjoining the meet­
ing from taking place, was clearly an unconstitutional prior 
restraint. We believe that a municipality has no power to 
grant or deny the right to meet on private property except 
as to non-discriminatory regulations intended to control 
structural or fire hazards—which is not to say it has not 
the power to invoke the criminal law for valid offenses 
committed on the private premises. See Part 111(B)(3), 
infra.

I l l

Appellants were not foreclosed from testing the 
injunction’s constitutionality by violating its terms.

It was the view of the Alabama Supreme Court that, on 
the authority of United Mine Workers v. United States, 330 
U. S. 258 (1947), the appellants were foreclosed from chal­
lenging the constitutionality of the injunction against them 
“ in collateral proceedings on appeal from a judgment of 
conviction for contempt of the * * * decree”  (R. 89). The 
court’s reliance on Mine Workers is misplaced.

Although Alabama may, if it chooses, adhere to Mine 
Workers as a matter of state law in a variety of cases, its 
reliance on the doctrine of that case where First Amendment 
rights are concerned cannot be sustained. We point out 
below (A) that the Mine Workers doctrine, by its own 
terms, has no application to free speech cases in general,



22

and (B) that Mine Workers aside, this Court must find that 
appellants have the right to attack the constitutionality of 
both the ordinances and injunction in the course of contempt 
proceedings.

A. The Mine Workers doctrine does not apply to First
Amendment cases.

Mine Workers involved at least three essential elements 
which are absent here. First, Mine Workers revolved 
around a question of conduct subject to statutory regula­
tion rather than conduct fully protected by the Constitution. 
Second, it involved a complex problem of statutory inter­
pretation4 in a factual setting that had not previously re­
ceived judicial consideration. Third, it was concerned with 
a problem that arose in the context o f an industrial dispute.

In the instant case, the subject matter of the dispute 
is plainly protected by the Constitution—more particularly, 
the First Amendment which deals with “ preferred rights.”  
The qualitative distinction between conduct which may be 
regulated by statute and conduct which is specially pro­
tected by the Constitution, is pointed out in West Virginia 
State Board of Education v. Barnette, 319 U. S. 624, 639 
(1943) :

“ The right of a State to regulate, for example, 
a public utility may well include, so far as the due 
process test is concerned, power to impose all of the 
restrictions which a legislature may have a ‘ rational 
basis’ for adopting. But freedoms of speech and of 
press, of assembly, and of worship may not be in­
fringed on such slender grounds. They are suscept­
ible of restriction only to prevent grave and immedi­
ate danger to interests which the state may lawfully 
protect.”

Second, there is no substantial doubt to be resolved 
either about the scope of the rights asserted here or about

4 The Norris-LaGuardia Act, 47 Stat. 70, c. 90, 29 U. S. C. § 101.



23

the invalidity of the ordinances in question. The rights are 
clearly protected and the ordinances patently unconstitu­
tional. See Parts I and II, supra. Although this case, like 
Mine Workers, has evoked “ extended argument, lengthy 
briefs, [and] study and reflection,”  to use Mr. Justice 
Frankfurter’s words (330 U. S. at 310), those exertions 
have been forthcoming not because they are necessary “ be­
fore final conclusions could be reached regarding the proper 
interpretation of the legislation controlling this case,”  hut 
merely to demonstrate that those conclusions regarding the 
First Amendment have been reached by this Court long 
ago.5

Third, where industrial conflicts are concerned, this 
Court has frequently set such cases apart from the main­
stream of First Amendment cases even though, in one 
respect or another, they contain elements of speech, 
assembly or press.6 But where political liberty is con­
cerned—and we remind the Court that the. association which 
is one of the appellants here is a political party—the limita­
tions that may be imposed on union activity have no appli­
cation whatsoever. This is particularly the case where

5 Compare Mr. Chief Justice Vinson's observation that:
“ 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 juris­
diction 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.”  330 U. S. at 294 
(emphasis supplied)

Mr. Justice Frankfurter described the issue in the case as 
“ complicated and novel.” 330 U. S. at 310.

6 See, for example, Local Union 10 v. Graham, 34S U.S. 192 
(1953) ; Hughes v. Superior Court, 339 U. S. 460 (1950) ; Building 
Service Employees v. Gazzam, 339 U. S. 532 (1950) ; Giboney v. 
Empire Storage & Ice Co., 336 U. S. 490 (1949) ; Carpenters and 
Joiners Union v. Ritter’s Cafe, 315 U. S. 722 (1942).



24

the rights asserted by the party are not only of constitu­
tional dimension, but where they are without question fully 
protected by the Constitution as well.

In addition, two cases decided since Mine Workers 
further support the view that appellants may not be fore­
closed from testing the underlying validity of the injunc­
tion simply because they have asserted the right in the 
course of contempt proceedings.

In United Gas, Coke and Chemical Workers v. Wisconsin 
Employment Relations Board, 340 U. S. 383 (1951), peti­
tioners had been prohibited from striking by an ex parte 
restraining order under the terms of the Wisconsin Public 
Utility Anti-Strike Law, and found in contempt.

This Court reversed. It found that Congress, under the 
National Labor Relations Act of 1935 as amended, had 
occupied the field of peaceful strikes for higher wages in 
the industry the state sought here to regulate. Mine 
Workers is not to be found in the majority or dissenting 
opinions.

In In the Matter of Green, 369 U. S. 689 (1962), Green 
was an attorney representing a labor union. A labor- 
management controversy arose and the employer obtained 
an injunction from the Ohio state courts forbidding union 
members from picketing. The injunction was issued ex 
parte. Green believed the order was invalid because issued 
without a hearing required by state statute and because the 
controversy was properly one for the National Labor Rela­
tions Board. Consequently, he advised the union officials 
that the restraining order was invalid and that the best way 
to contest it was to continue picketing and, if the pickets 
were held in contempt, to appeal and test the order of 
commitment by habeas corpus.

The plan was followed and four pickets were arrested. 
At the hearing on the contempt charge, Green informed the



25

court that it was he who had advised the union to test the 
injunction by risking contempt. He was held in contempt 
for disobeying “ a lawful writ, process, order, rule, judg­
ment, or command, of the court under the Ohio statutes.”

This Court reversed. It held that “ a state court is 
without power to hold one in contempt for violating an 
injunction that the state court had no power to enter by 
reason of federal preemption.”  369 U. S. at 692. The case 
was remanded for a hearing to determine whether the state 
court was acting in a field reserved exclusively by Congress 
for the federal agency. Mine Workers was distinguished 
on the ground that it ‘ ‘ involved a restraining order of a 
federal court and presented no question of preemption of 
a field by Congress where, if federal policy is to prevail, 
federal power must be complete.”  Id. note l .7

United Gas and Green both indicate that when a state 
court’s power to issue an injunction in a labor dispute has 
been withdrawn by Congress, which vested an administra­
tive agency and the federal courts with authority to act in 
that area, an injunction issued by a state court which has 
presumed to exercise its jurisdiction may be disobeyed. 
A fortiori, when the power of a state court to act is fore­
closed by the Constitution as in this case, any injunction 
which it issues may likewise be disobeyed with impunity.8

1. Even in Mine Workers own terms, the injunction in 
this case was clearly frivolous and could he violated with 
impunity.

Although Mr. Chief Justice. Vinson’s opinion in Mine 
Workers nominally held that even if the restraining order

7 Cf. N A A C P  v. Alabama, 357 U. S. 449 (1958).

8 Prior to Mine Workers, o f course, this Court had held that 
the validity of judicial orders could be collaterally tested by violating 
them. E x Parte Rowland, 104 U. S. 604 (1882) ; E x Parte Fisk, 
113 U. S. 713 (1885); E x Parte Ayers, 123 U. S. 443 (1887); 
In Re Sawyer, 124 U. S. 200 (1888).



26

were found invalid, its validity could not be tested by 
violating its terms,9 he added that, “ A  different result would 
follow were the question of jurisdiction frivolous and not 
substantial * * * ”  330 U. S. at 293.

Mr. Justice Frankfurter, who held that the restraining 
order in Mine Workers could not be disobeyed even though 
invalid (as he believed it to be), also declared that a 
different result would follow if the question of jurisdiction 
were frivolous. He compared the questions presented in 
the. case before him with “ a question so frivolous that any 
judge should have summarily thrown the Government out 
of court without delay”  330 U. S. at 309.

“ Only when a court is so obviously traveling out­
side its orbit as to be merely usurping judicial forms 
and facilities may an order issued by a court be 
disobeyed and treated as though it were a letter to 
a newspaper. Short of an indisputable want of 
authority on the part of a court, the very existence 
of a court presupposes its power to entertain a con­
troversy, if only to decide after deliberation that 
it has no power over the particular controversy.

“ To be sure, an obvious limitation upon a court 
cannot be circumvented by frivolous inquiry into 
the existence of a power that has unquestionably 
been withheld. Thus, the, explicit withdrawal from 
federal district courts of the power to issue injunc-

9 The Chief Justice and the two Justices who joined in his opinion, 
believed the order valid. Though they went on to declare that even 
if the order were void the defendants were none the less required to 
obey it, that much of their opinion was unnecessary to their decision 
and therefore not binding. Justices Black and Douglas likewise 
found the order valid, but therefore thought it unnecessary to decide 
the academic problem of a void order. Justices Murphy and Rutledge 
concluded both that the order was void and the contempt conviction 
therefore invalid. Only Justices Frankfurter and 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 Jackson squarely 
adopted the proposition relied upon by the Alabama Supreme Court.



27

tions in an ordinary labor dispute between a private 
employer and his employees cannot be defeated, and 
an existing right to strike therefore impaired, by 
pretending to entertain a suit for such an injunction 
in order to decide whether a court has jurisdiction. 
In such a case, a judge would not be acting as a 
court. He would be a pretender to, not a wielder 
of, judicial power.”  330 U. S. at 309-310 10

No member of the Mine Workers Court undertook to 
supply a precise definition of a frivolous void order. It 
is enough for the purposes of this case that the injunction 
under scrutiny, being so patently violative of appellants’ 
First Amendment freedoms, be declared a nullity from 
start to finish. The injunction was an assertion of power 
based upon ordinances which, as we have shown above, are 
not arguably constitutional. In addition, the power not 
only was asserted to intrude upon the preferred constitu­
tional rights of free speech, free press and free assembly, 
it presumed to do so in the form of a prior restraint, a 
particularly objectionable kind of censorship. See Congress 
of Racial Equality v. Douglas, 318 F. 2d 95 (C. A. 5, 1963).

B. The primacy of First Amendment rights requires this 
Court to hold that the injunction’s constitutionality may 
be tested by violating its terms.

1. The injunction lays a forbidden burden on First 
Amendment Rights.

Although we have discussed Mine Workers in order to 
meet the Alabama Supreme Court on its own ground, we

10 All the Justices except two expressed the belief that there were 
circumstances where an order of a court was so frivolous that its 
violation could not be punished. Justices Black and Douglas, the 
exceptions, expressed no view because, believing the Mine Workers 
order valid, they declined to speculate on the consquences of violating 
a void order.



28

believe as an original proposition that the doctrine of that 
case has no place in First Amendment cases.11

Professor Paul Freund, in discussing the differences 
(and similiarities) between prior restraint and subsequent 
punishment, notes one particularly crucial difference where 
restraining orders or temporary injunctions are concerned:

“ If disobedience of the interim order is ipso 
facto contempt, with no opportunity to escape by 
showing the invalidity of the order on the merits, 
the restraint does indeed have a chilling effect beyond 
that of a criminal statute.12

It is precisely that “ chilling effect”  which is at stake in 
this case.

The consequence of investing court orders, no matter 
how void or oppressive, with impenetrable sanctity,13 is

11 The three principal commentators on Mine Workers think it 
unworkable in any case. Watt, the Divine Right of Government by 
Judiciary, 14 Univ. of Chicago Law Rev. 409 (1947); Cox, The 
Void Order and the Duty to Obey, 16 Univ. of Chicago Law Rev. 
86 (1948) ; Chafee, Some Problems of Equity (Univ. of Mich. Law 
School, 1950) Chapters V III and IX.

12 The Supreme Court and Civil Liberties, 4 Vanderbilt Law 
Rev. 533, 539 (1951). Professor Freund goes on to say:

“ To the extent, however, that local procedure allows such a 
defense to be raised in a contempt proceeding, the special objec­
tion to prior restraint growing out of the problem of interim 
activity is obviated.”

W e agree, but it is our fundamental thesis that the question of 
collateral attack is not just a matter of “ local procedure.”

13 To the extent that Mine Workers may be based upon the re­
spect due the courts, that consideration must give way under the 
circumstances of this case. This is the very situation anticipated by 
Mr. Justice Frankfurter when he spoke of a court “ so obviously 
traveling outside its orbit that it is merely usurping judicial forms 
and facilities.”

The “orbit” referred to is the traditional function of courts, but 
the acts of the Circuit Court in this case clearly go beyond that



29

made plain in this case. It is beyond question that the 
appellants could not have been punished for distributing 
their newspaper and holding their meeting if they had been 
prosecuted directly under the ordinances in issue; and the 
unconstitutionality of those ordinances could have properly 
been raised as a defense. Staub v. Baxley, supra. But the 
City of Fairfield, by interposing a temporary injunction 
between appellants and the same ordinances, has devised 
a method that, if ratified by this Court, will allow circum­
vention 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 
public concern, which Mr. Justice Brandeis called “ a po­
litical duty. ’ ’ 14

Public issues are frequently short run, and if the govern­
ment were empowered to suppress discussion by the use of 
an injunction, issued as here on the flimsiest grounds, the 
purpose of the discussion may wTell have passed by the time 
the appellate remedies were exhausted. For example, it 
would enable a political candidate to be enjoined from 
speaking during the campaign period preceding the day of 
election. I f he violated the injunction he would be impris­
oned ; if he bowed to the injunction and tested its validity in 
“ orderly and proper proceedings,”  the election will have 
long been over. In either case, the electorate would not

function. That is, the decision by the Circuit Court— that the state 
of events was such that public order would best be maintained by 
prohibiting appellants’ meeting— is a decision to be made, if ever, 
by the police. See, e.g., Feiner v. New York, 340 U. S. 315 (1951). 
But conceding that the States may empower their courts to make such 
police-type decisions (see Kingsley Books v. Brown, 354 U. S. 436 
(1957) ), the States must also be prepared to have the decisions 
of their courts subject to the same scope of review as the decision 
of the police in Feiner.

14 Whitney v. California, 274 U. S. 357, 376 (1927) (concurring 
opinion ).



30

have heard him and the electoral process—perhaps the 
raison d ’etre of free speech—would be crippled.15

15 The increasing reliance on ex  parte preliminary injunctions— 
and the threat they pose to the First Amendment— is indicated by 
the following examples.

In April 1962, an Alabama Circuit Court Judge issued a tem­
porary injunction against the President, student body and faculty 
of Talladega College, members o f the Student Non-Violent Co­
ordinating Committee, the Congress of Racial Equality, and several 
individuals, forbidding the respondents from “ engaging in, sponsoring 
or encouraging unlawful street parades, unlawful demonstrations, 
unlawful boycotts, unlawful trespass, and unlawful picketing.”  
State o f Alabama v. Arthur D. Gray, et al., Circuit Court of 
Talladega County, in Equity, No. 9760.

A  few days before election day in 1962, a judge of the California 
Superior Court issued a temporary restraining order prohibiting 
the distribution of a booklet which “ implied that Governor Edmund 
G. Brown and other Democratic incumbents were soft on com­
munism.” A  hearing on the injunction was set for November 7th, 
the day after election day. New York Times, October 30, 1962, 
p. 22. On November 9th, the Democratic State Committee, the 
plaintiffs, agreed to the dissolution of the restraining order. At the 
same time Mr. Richard Nixon’s campaign manager asked for the 
dissolution of a restraining order that had been issued prohibiting 
distribution of two anti-Nixon pamphlets. New York Times, No­
vember 10, 1962.

On November 29, 1962 a Justice of the New York State Supreme 
Court issued a temporary restraining order prohibiting Plerbert 
Aptheker from addressing the student body of the University of 
Buffalo on the ground that Aptheker was a member o f the National 
Committee of the Communist Party, New York Times, November 
30, 1962.

On April 10, 1963, an Alabama Circuit Court Judge issued a 
temporary injunction prohibiting anti-segregation demonstrations in 
Birmingham. Dr. Martin Luther King and others were arrested 
two days later for violating the injunction. New York Times, April 
23, 1963, p. 20. Their convictions are now on appeal to the Alabama 
Supreme Court.

In Tallahassee, Florida, a Circuit Court Judge issued a tem­
porary restraining order on May 29, 1963 prohibiting anti-segrega­
tion demonstrations. Two hundred and fifty-seven demonstrators



31

It was danger of this magnitude that Mr. Justice Rut­
ledge foresaw in his prophetic dissent in Mine W orkers:

“ It would also be in practical effect for many 
cases to terminate the litigation, foreclosing the sub­
stantive rights involved without any possibility for 
their effective appellate review and determination.

“ This would be true, for instance, wherever the 
substantive rights asserted or the opportunity for 
exercising them would vanish with obedience to the 
challenged order. Cf. Ex Parte Fisk, 113 U. S'. 713. 
The First Amendment liberties especially would be 
vulnerable to nullification by such control. Thus the 
constitutional rights of free speech and free assembly 
would be brought to naught and censorship estab­
lished widely over those areas merely by applying 
such a rule to every case presenting a substantial 
question concerning the exercise of those rights. 
This Court has refused to countenance a view so 
destructive of the most fundamental liberties. Thomas 
v. Collins, 323 U. S. 516. These and other constitu­
tional rights would be nullified by the force of invalid 
orders issued in violation of the constitutional pro­
visions securing them, and void for that reason. The 
same thing would be true also in other cases involv­
ing doubt, where statutory or other rights asserted 
or the benefit of asserting them would vanish, for 
practical purpose, with obedience.”  330 U. S. at 352. 

# # #

were arrested on May 30 for violating the order. New York Times, 
May 31, 1963, p. 1.

On June 6, 1963, a Mississippi Chancery Court Judge issued a 
temporary injunction barring civil rights demonstrations in Jackson. 
Thirteen local and national civil rights leaders, the NAACP, CORE, 
and the trustees of Tougaloo Christian College were specifically 
named in the order. New York Times, June 7, 1963, p. 14.

For an account of the destruction by injunction of a dissident 
political movement, the International Workers of the World, see 
Chafee, Free Speech in the United States (Harvard University 
Press, 1946) 326-342.



32

“ Then also the liberties of our people would be 
placed largely at the mercy of invalid orders issued 
without power given by the Constitution and in con­
travention of power constitutionally withheld by Con­
gress.”  330 U. S. at 354.

By obtaining an ex parte injunction, and punishing for 
contempt, the respondents have attempted to convert other­
wise unconstitutional and void statutes into ones which can 
successfully restrain and punish activities which would be 
protected in the other situations described. However in­
genious the City of Fairfield may be, it cannot punish 
appellants’ constitutionally protected behavior. See Thomas 
v. Collins, 323 U. S. at 540.16

2. Even if the ordinances or injunction here were argu­
ably constitutional, their validity could be tested in con­
tempt proceedings.

We urge, of course, that the ordinances in issue are 
undeniably invalid on their face. But even if the ordinances 
or injunction were arguably constitutional, that would not 
alter appellants’ right to test their validity in a contempt 
proceeding. In any case involving the First Amendment 
it is irrelevant how the municipal authorities presume to 
suppress speech or assembly. Whether it be by punishment 
for not seeking a permit if one is ostensibly required (Staub 
v. Barley, supra), or by contempt for violating an injunc­
tion against such speech or dissemination (Thomas v. Col­
lins, supra), the result must be the same. The focus must 
be upon the activity sought to be engaged in, not the state’s 
procedural scheme.

The only restrictions on speech or assembly which a 
state or municipality can impose in consonance with the 18

18 Kingsley Books v. Brown, 354 U. S. 436 (1957) is not to 
contrary. Though it upheld an injunctive scheme for the suppression 
of obscene publications, it expressly left open the question whether 
the issue of obscenity could be tested by violating the injunction. 
354 U. S. at 443, n. 2.



33

preferred status of the First Amendment freedoms are 
general and non-discriminatory regulations dealing with 
soliciting and holding meetings upon the streets, parks and 
public places of a town or city. The most that a municipality 
can require even in this area is that an individual or group 
request a permit for use of the public street or parks so that 
the authorities can determine whether a conflicting meeting 
was scheduled. See Parts I and II, supra.

If a permit is wrongfully refused, the meeting or solici­
tation must be allowed notwithstanding, and a plenary 
examination of the basis of the refusal—including the con­
stitutionality of applicable statutes—will subsequently be 
allowed in the courts. See the cases related in Staub v. 
Baxley, supra at 323-324, notes 6-12.17 18 A fortiori, no injunc­
tion can be issued which would force a postponement of the 
speech or solicitation until the validity of the injunction has 
been determined. To proceed in the face of an injunction 
or a refusal to issue a. permit is the only way to prevent 
circumvention of First Amendment privileges by over- 
zealous officials bent on “ maintain[ing] the status quo”  
(R. 72).18

Milton wrote in Areopagitica:
“ And though all the winds of doctrine were let 

loose to play upon the earth, so Truth be in the fields,

17 Insofar as Poulos v. New Hampshire, 345 U. S. 395 (1953) 
suggests the contrary, it has been overruled by Staub. Any rule that 
would permit municipalities to forbid a speech or assembly and force 
prior adjudication of the right, is inconsistent with the Fourteenth 
Amendment.

18 See State ex rel. Liversey v. Judge o f Civil District Court, 34 
La. Ann. 741 (La. Sup. Ct., 1882) ; E x Parte Tucker, 110 Tex. 335, 
220 S. W. 75 (Tex. Sup. Ct., 1920) ; State v. Morrow, 57 Ohio 
App. 30, 11 N. E. 2d 273 (Ohio Ct. of App., 1937) ; E x Parte 
Henry, 147 Tex. 315, 215 S. W . 2d 588 (Tex. Sup. Ct., 1948), each 
of which recognizes that the First Amendment can be served only 
by allowing an injunction to be attacked in the course of contempt 
proceedings.



34

we do injuriously by licensing and prohibiting to 
misdoubt her strength. Let her and Falsehead 
grapple; who ever knew Truth put to the worse in 
a free and open encounter?”

If these words are to have any force in the present day, 
the ‘ ‘ free and open encounter”  must be permitted immedi­
ately when public concern is high and can be directed against 
the falsehood or injustice revealed by the speech. The 
headlines of one day are forgotten the following week and 
if the full truth about any public issue is to come before 
the public, all parties with something to say must have 
the same immediate opportunity to present their views.

3. Nor is speculative violence justification for supress- 
ing appellants’ meeting.

Even if the municipal authorities thought that violence 
would erupt were a permit to be issued, and secured an 
injunction or refused a permit on that basis, the meeting 
must be allowed to proceed. No one can be sure that the 
speech that is scheduled will go forward in the manner con­
templated or that it will have the effect predicted.

“ A community need not wait to be subverted by 
street riots and storm troopers; but, also, it cannot, 
by its policemen or commissioners, suppress a 
speaker, in prior restraint, on the basis of news 
reports, hysteria or inference that what he did yes­
terday, he will do today. Thus, too, if the speaker 
incites others to immediate unlawful action he may 
be punished in a proper case, stopped when dis­
order actually impends; but this is not to be con­
fused with unlawful action from others who seek 
unlawfully to suppress or punish the speaker. Mat­
ter of Rockwell v. Morris, 12 A. D. 2d 272, 281 (1st 
Dept. 1961), aff’d 215 N. Y. S. 2d 502 (1961), cert, 
denied 368 IT. S. 913 (1961).

When a speaker “ passes the bounds of argument or 
persuasion and undertakes incitement to riot”  it is clear 
that the police can “ prevent a breach of the peace,”  Feiner



35

v. New York, 340 U. S. 315, 320-21 (1951). It is at that 
point and not before that municipal and state authorities 
can act. And there is no doubt that they have the means 
to act effectively when that point is reached.19

Speech often rouses to anger, and the public’s concern 
with social and political issues may often reach a disturb­
ing pitch. It is easy for a municipal officer to equate the 
public order with the status quo and political agitation with 
a breach of the peace. As Learned Hand wrote during 
World War I:

“ Political agitation, by the passions it arouses 
or the convictions it engenders may in fact stimulate 
men to the violation of the law. Detestation of exist­
ing policies is easily transformed into forcible re­
sistance of the authority which puts them into exe­
cution ; and it would be folly to disregard the causal 
relation between the two. Yet to assimilate agita­
tion, legitimate as such, with direct incitement to 
violent resistance, is to disregard the tolerance of 
all methods of political agitation which in normal 
times is a safeguard of free government. The dis­
tinction is not a scholastic subterfuge but a hard 
fought acquisition in the fight for freedom * * 
Masses Pub. Co. v. Patten, 244 Fed. 535, 541 (S. D. 
N. Y. 1917) rev. 246 Fed. 24 (2d Cir. 1917).

It is not for the municipal authorities to decide in ad­
vance what the effect of a speech may he. They can act 
if or when “ political agitation”  becomes an “ incitement

19 Cf. Kasper v. Brittain, 245 F. 2d 92 (C. A. 6, 1957), cert, 
denied 355 U. S. 834 (1957), where a criminal conviction for con­
tempt of an ex parte restraining order was upheld against First 
Amendment objections where the evidence clearly showed advocacy 
of immediate action that in fact resulted in illegal mob conduct 
which required the presence of the State Patrol and the National 
Guard to restore order.



36

to violent resistance.”  20 Necessarily this means that the 
speech must go forward at its scheduled time subject only 
to a reasonable restriction on use of the public streets or 
parks. No other rule can lead to the emergence of the 
truth, which alone guarantees the, survival of free govern­
ment and justifies its continued existence.

I V

The convictions violated the Due Process Clause 
of the Fourteenth Amendment because there was no
evidence tending to prove the offenses charged.

In Garner v. Louisiana, 368 U. S. 157, 163 (1961), the 
Court held that a conviction in a State court must be set 
aside under the Due Process Clause if it is “ totally devoid 
of evidentiary support.”  Accord, Thompson v. City of 
Louisville, 362 U. S. 199 (I960). The rationale of Garner 
and Thompson is not whether the evidence in the record is 
insufficient to support the conviction, but whether there is 
any evidence at all tending to prove one or more of the 
essential elements of the offense. See Garner v. Louisiana, 
supra, 368 U. S. at 163-64. “ In addition,”  as the Court 
stated in Garner, the concern is not “ whether the evidence 
proves the commission of some other crime, for it is as much 
a denial of due process to send an accused to prison follow­
ing conviction for a charge that was never made as it is 
to convict him upon a charge for which there is no evi­
dence to support that conviction”  (id. at 164). The decisions 
in Garner and Thompson are directly applicable to the 
present case.

20 The Court of Appeals for the Fifth Circuit, in a recent case 
involving an injunction against the Congress o f Racial Equality, said: 

“ These fundamental rights to speak, assemble, seek redress of 
grievances and demonstrate peacefully in pursuance thereto can­
not be abridged merely because a riot might be threatened to be 
staged or that police officers are afraid that breaches of the peace 
will occur if these rights are exercised.”  Congress of Racial 
Equality v. Douglas, 318 F. 2d 95, 102.



37

A. There was no evidence tending to prove that petitioners
violated the injunction as it related to Sections 3-4 and
3-5 of the Fairfield City Code.

The injunction issued against the petitioners enjoined 
them “ from holding a public meeting at 8 P. M. on Wed­
nesday, October 11, 1961, at 5329 Valley Road, Fairfield, 
Alabama # * and from distributing further # * * handbills
announcing such meeting such as were distributed in the 
City of Fairfield, Alabama, on October 10, 1961. * * * ”  
(R. 6)

There is not a shred of evidence in the record to show 
that any of the handbills were distributed after the issuance 
of the temporary restraining order. Not a single police 
officer saw any of the handbills distributed (see, e.g., R. 20, 
28, 32). Both appellant Fields (R. 54) and his wife (R. 64) 
testified that none of the handbills had been distributed fol­
lowing issuance of a restraining order. In fact, Police Officer 
Misso testified that “ the building was padlocked”  and that 
his orders were “ to keep everybody out”  (R. 34), and 
appellant Fields affirmed that he had been refused entrance 
to the hall to pick up the literature (R. 50). Even the 
lower court admitted that there was “ no evidence that the 
pamphlet was redistributed”  (R. 72).

The only literature that was distributed after the in­
junction was issued was several copies of appellants’ news­
paper The Thunderbolt (R. 18, 22-23, 28), which contains 
not one word relating to the meeting. This point was 
affirmed by Officer Misso (R. 23, 25).

Faced with this complete lack of evidence, the City of 
Fairfield attempted to prove that Fields had nevertheless 
accomplished his purpose by distributing The Thunderbolt 
because, as counsel for the City stated (R. 70) :

“ [T]he Thunderbolt * * # has the same sort of 
agitation in it, the same sort of tendency to induce 
a breach of the peace, to induce disturbances between 
the races, to induce disorderly conduct.”



38

The lower court also attempted to square the circle by 
stating (E. 72):

“ 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 some­
one 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. ’ ’

And the Supreme Court of Alabama avoided the whole 
issue by stating (E. 88) :

“ There is evidence to support the finding that 
they did violate the terms of the temporary injunc­
tion, and we have held that upon petition for cer­
tiorari, the court does not review questions of fact 
but only questions of law. * * * ”

It is submitted that the evidence which the lower courts 
seized upon to uphold the conviction for contempt was woe­
fully inadequate for its purpose. Conviction for contempt 
on a record totally devoid of any evidence that petitioners 
had passed out the previously enjoined handbills deprived 
the petitioners of their liberty without due process of law.

B. There was no evidence tending to prove that petitioners 
had violated the injunction as it related to Section 14-53 
o f the Fairfield City Code.

Similarly, there is no evidence in the record that the 
appellants violated the order enjoining them from holding 
a public meeting on Wednesday, October 11, 1961. As Offi­
cer Misso testified, “ There was no meeting held”  (E. 24). 
This was not surprising, of course, since as Misso went on 
to explain, ‘ ‘ The building was padlocked and * * # my orders 
were to keep everybody out”  (E. 34). Thus, as appellant 
Fields testified, he “ was refused entrance to the hall”  and 
“ no one could cross the street to the hall”  (E. 50).

To be sure, as Chief Morris affirmed, “ a crowd had con­
gregated across the street from * * * the proposed meeting



39

place”  (R. 27), and there is no denial of the fact that Fields 
as well as other people from the National States Rights 
Party were also in the vicinity across the street from the 
hall. Their presence there, however, was for the sole pur­
pose of telling “ the people that might come there that there 
wasn’t going to be a meeting”  (R. 63) and to direct “ any­
one who responded to the handbill before the injunction 
was issued to go to the Lipscomb City Park”  (R. 49). As 
Police Officer Pope testified, appellant Fields was not at­
tempting to hold any kind of meeting at the hall but rather 
“ was telling them that the meeting had been called off over 
there and would be at * * # Lipscomb City Hall”  (R. 19).

In the face of these facts, the City could hardly have 
claimed that the meeting had been held. Instead, counsel 
argued that Fields had “ just as effectively had a meeting 
as if the injunction had not been issued because he went 
out there and he talked to all these people up and down”  
(R. 65-66). Even the lower court, however, could not bring 
itself to accept this. It made no mention of the public meet­
ing, but instead chose to hold the appellants in contempt 
on the grounds of distributing The Thunderbolt (see R. 72). 
Similarly, the Supreme Court of Alabama avoided discuss­
ing the evidence as to the meeting by relying on its general 
statement that ‘ ‘ there is evidence to support the finding that 
they did violate the terms of the temporary injunction * * * ”  
(R. 88).



40

CONCLUSION

For the reasons stated above, appellants’ convic­
tions must be reversed and the charges against them 
dismissed.

Respectfully submitted,

M elvin  L . W u l f ,
156 Fifth Avenue,

New York 10, N. Y.,

Charles M organ, J r .,
Bank for Savings Building, 

Birmingham, Alabama,

L eon F riedm an ,
R ichard J. M edalie,

425 Park Avenue,
New York, N. Y.,

Attorneys for Appellants.

September 24, 1963.



T he H ecla P ress, 54 L afayette Street, N ew  Y ork C ity, BE ekm an  3-2320
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