Walker v. City of Birmingham Brief for Respondent
Public Court Documents
October 3, 1966
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IN THE
SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1966.
No. 249.
W YATT TEE WALKER, MARTIN LUTHER KING, JR., RALPH ABERNATHY,
A. D. KING, J. W. HAYES, T. L. FISHER, F. L. SHUTTLESWORTH
and J. T. PORTER,
Petitioners,
vs.
CITY OF BIRMINGHAM, a Municipal Corporation of the
State of Alabama,
Respondent.
On W rit of Certiorari to the Supreme Court of Alabama.
BRIEF FOR RESPONDENT.
J. M. BRECKENRIDGE,
EARL McBEE,
WILLIAM C. WALKER,
All at 600 City Hall,
Birmingham, Alabama 35203,
Attorneys for Respondent.
St. L outs L a w Printing Co., I nc ., 411-15 N. Eighth St., 63101. CEntral 1-4477.
INDEX.
Page
Preliminary statement concerning “ questions pre
sented” as stated by petitioners ............................... 1
Questions presented ........................................................ 3
Alabama Constitution, Statutes and Birmingham Or
dinances involved ........................................................ 6
Statement ........................................................................... 7
A. The verified injunction bill ................................. 7
B. The petition for rule nisi ..................................... 11
C. Evidence ................................................................... 13
D. Treatment by lower courts ................................... 18
Summary of argument .................................................... 21
Argument ........................................................................... 29
I. The convictions should be affirmed on the rule of
Howat v. Kansas and Mine Workers without
reaching constitutional issues concerning Ordi
nance 1159 ............................................................... 29
A. The Alabama court had jurisdiction to deter
mine its jurisdiction.......................................... 35
B. The principle above stated in I has been ap
plied in cases involving First and Fourteenth
Amendment freedoms ...................................... 39
C. Respect for the law and the courts of the land
is fundamental to the protection of minori
ties and majorities alike, without it no con
stitutional rights can endure ........................... 44
11
II. Aside from violation of Ordinance 1159 the con
tempt conviction should be affirmed on the
basis of other unlawful conduct in violation of
the injunction......................................................... 48
A. The conduct of petitioners was otherwise
unlawful ........................................................... 48
B. Such unlawful conduct is not constitution
ally protected nor immunized from punish
ment for contempt by the fact that 1159 in
part supported the injunction ....................... 50
C. The scope and purpose of the injunction was
to preserve law and order. They adequately
support the contempt convictions ................. 52
D. The evidence is sufficient ............................... 61
E. Conviction sustainable on conspiracy charge 61
III. The constitutionality of 1159 ............................. 63
IV. Statements and news release made by Petition
ers Walker, King, Abernathy and Shuttles-
worth cannot be isolated from their direct part
in the violation of the injunction to stand as
protected free speech ............................................. 66
V. The conviction of Petitioners Hayes and Fisher
is sustained by the evidence.................................. 72
Conclusion ......................................................................... 74
Appendix ......................................................................... 75-85
AUTHORITIES CITED.
Cases:
Allen v. United States, 1922 (C. C. A. 7), 278 Fed.
429 .............................................................................. 23
Amalgamated Association of St. Elec. Ry. & Motor
Coach, etc. v. Wisconsin Employment Relations
Board, 340 U. S. 383, 71 S. Ct. 359, 95 L.
Ed. 364 .....................................................................32,33
I ll
Avent v. North Carolina, 373 U. S. 375, 83 S. Ct.
1311 (May 20, 1963) ................................................
Berman v. U. S., C. C. A. Okl., 76 F. 2d 483, cer
tiorari denied, 55 S. Ct. 914, 295 U. S. 757, 79
L. Ed. 1699 ...............................................................
Blake v. Nesbet, 1905, 144 Fed. 279, 283, 284 ........
Blumenthal v. United States, 332 F. S., pages 539,
559, 68 Snp. Ct. 248, 257 ...........................26,27,61,
Bridges v. California, 314 U. S. 252 .........................
Carter v. United States, 1943, 5th Cir., 135 Fed.
2d 858 .......................................................................22,
City of Darlington v. Stanley, 1961, 239 S. C. 139,
122 S. E. 2d 207 ....................................................65,
City of Greenwood v. Peacock, 86 S. Ct. 1800, 384
U. S. 808, 1966 .........................................................
City of New Orleans v. Liberty Shop, 1924, 157 La.
. . . , 101 So. 797 ........................................................
Clarke v. Fed. Trades Comm., 128 Fed. 2d 542 . . . .
Congress of Racial Equality v. Clemmons, 1963
(C. C. A. 5), 323 Fed. 2d 54, 58, 64 ..................... 26,
Coosaw Mining Co. v. South Carolina, 144 U. S. 550,
567, 12 S. Ct. 689, 36 L. Ed. 537 .............................
Cox v. State of Louisiana, 1965, 379 U. S. 536, 554,
85 S, Ct. 453, 464 .............................23,25,26,45,50,
Cox v. State of New Hampshire, 312 U. S. 569, 61
S. Ct. 762, 85 L. Ed. 1049 .................................... 50,
Craig v. Harney, 331 U. S. 367, 67 S. Ct. 1249 ........
Dennis v. United States (1951), 341 U. S. 494, 528,
71 S. Ct. 857, 877 ......................................................
Duplex Printing Press Co. v. Deering, 254 U. S.
443, 465, 41 S. Ct. 172, 176, 65 L. Ed. 349, 16
A. L. R. 196 .............................................................
Ex P. Tinsley, 37 Tex. Cr. 517, 40 S. W. 306 . . . . 25,
Ex Parte Hacker, 250 Ala. 64, 33 So. 2d 324. .21, 23, 38,
Fields v. City of Fairfield, 375 U. S. 248 ............... 28,
8
62
36
68
70
,36
,66
33
26
23
59
54
54
65
71
48
62
52
43
73
IV
Fox v. Washington, 326 U. S. 273, 35 S. Ct. 383,
59 L. Ed. 573 ........................................................... 69
Garrison v. Louisiana, 379 IT. S. 64, 85 S. Ct. 209 .. 71
Giboney v. Empire Ice and Storage Company, 336
U. S. 490, 502, 69 S. Ct. 684, 691, 93 L, Ed. 834 . . . 68
Gober v. Birmingham, 373 U. S. 374, 83 Sup. Ct.
1311 (May 20, 1963) ................................................ 8
Gompers v. Bucks Stove & Range Co., 1911, 221
U. S. 418, 450, 31 Sup. Ct. 492, 501, 55 L. Ed. 797,
34 L. R. A. (U. S.) 874 .................................... 23,45,69
Griffin v. Congress of Racial Equality, 1963, 221
Fed. Supp. 899 ........................................................26,59
Holt v. Virginia, 381 IT. S. 131, 85 S. Ct. 1375 ........ 71
Hotel and Restaurant Employees, etc. v. Greenwood,
249 Ala. 265, 30 So. 2d 696, Cert. Den. 322 U. S.
847, 68 S. Ct. 349 .........................................21,23,38,42
Howat v. Kansas, 258 H. S. 181 . . . .20, 21, 22, 23, 24, 29,
31, 33, 35, 39, 43, 44, 47, 51, 63, 64
In Re: Debs, 158 U. S. 564, 15 S. Ct.
900 ................................................ 23,24,26,28,53,56,57
In Re Green, 369 U. S. 689, 693 ................. 20,21,31,32
In Re Landau, 243 N. Y. S. 732, 230 App. Div. 308,
app. dismissed 255 N. Y. 567, 175 N. E. 316 . . . .25, 52
In re Sawyer, 360 U. S. 622, 629, 79 S. Ct. 1376,
1379 ............................................................................ 69
In re Williams, 26 Pa. 9, 67 Am. Dec. 374 ............. 22
John Mitchell et al. v. Hitchman Coal & Coke Com
pany, 214 Fed. 685, 131 CCA 425 ........................... 41
Jones v. Securities and Exchange Comm., 298 U. S.
1, 56 Sup. Ct. 654, 80 L. Ed. 1015, 1021, 1022 . . . . 22
Kaner v. Clark, 108 111. A. 287 ...............................25, 52
Kelly v. Page, 1964 (C. C. A. 5), 335 Fed. 2d 114. .26,60
Liquor Control Commission v. McGillis, 1937, 91
Utah 586, 65 Pac. 2d 1136 .................................... 25,52
Local 333 B, United Marine Division of Int. Long
shoremen Assn. v. Commonwealth of Virginia,
V
1952, 193 Ya. 773, 71 S. E. 2d 159, cert, denied, 344
U. S, 893, 73 S. Ct. 2 1 2 ............................................
Lombard v. Louisiana, 373 U. S. 267, 83 Sup. Ct.
1122 .............................................................................
Main Cleaners & Dyers v. Columbia Super Cleaners,
332 Pa. 71, 2 A. 2d 700 ........................................
Milk Wagon Drivers Local Union v. Meadowmoor
Dairies, 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed.
836 ............................................................................ 28,
New York Times v. Sullivan, 376 U. S. 254, 84 S.
Ct. 710 .......................................................................
Patterson v. Colorado, 205 D. S. 454, 27 S. Ct. 556,
558 ..........................................................................
Pennekamp v. Florida, 328 U. S. 331, 66 S. Ct. 1029
People v. McCrea, 6 N. W. 2d 489, 303 Mich. 213,
cert, denied 318 U. S. 783, 63 S. Ct. 851, 87
L. Ed. 1150 ...............................................................
People v. Tavormina, 1931, 257 N. Y. 184, 177 N. E.
317 ...............................................................................
Peterson v. City of Greenville, 373 U. S. 244, 83
Sup. Ct. 1119 (May 20, 1963) ................................
Poliafico v. United States, 237 Fed. 2d 97, 104 (C. A.
6, 1956); cert. den. 352 U. S. 1025, 77 S. Ct. 590,
1 L. Ed. 2d 597 .......................................... 26,27,61,
Portland R. L. and P. Co. v. Railroad Commission,
229 U. S. 397, 33 S. Ct. 829, 57 L. Ed. 1248 ........28,
Poulos v. State of New Hampshire, 345 U. S. 395,
73 S. Ct. 760, 768, 97 L. Ed. 1105, 30 ALR
2d 987 .........................................................................
Reid v. Independent Union A. W., 200 Minn. 599,
271 N. W. 300, 120 ALR 297 .................................
Schwartz v. United States, 1914 (0. C. A. 4), 217
Fed. Rep. 866 ......................................................... 23,
Shipp v. United States, 1906, 203 U. S. 563, 27 S. Ct.
165, 51 L. Ed. 319, 8 Ann. Cas. 265 ............. 22, 35,
39
8
22
i 73
71
71
71
68
62
8
68
74
65
22
40
36
VI
Short v. United States, 1937 (CCA-4), 91 Fed. 2d
614 ..............................................................................
Shuttlesworth v. City, 43 Ala. App. 68, 180 So.
2d 114 .........................................................................
Sima. Piano Company v. Fairfield, 103 Wash. 206,
174 Pac. 457 .............................................................
Skelly v. U. S., C. C. A., Okl., 76 F. 2d 483, cer
tiorari denied, 55 S. Ct. 914, 295 U. S. 757, 79
L. Ed. 1699 ...............................................................
State ex rel. Carroll v. Campbell et al., 25 Mo.
App., loc. eit. 639 ....................................................
Stanb v. City of Baxley, 1958, 355 U. S. 313, 78 S.
Ct. 277, 2 L. Ed. 2d 319 ..........................................
Stoll v. Gottlieb, 305 U. S. 165, 171, 172, 59 Sup.
Ct. 134, 83 L. Ed. 104, 108, 109; 38 Am. Banks,
U. S. 79 ...................................................................
Stromberg v. California, 283 U. S. 359, 367-368 . . . .
Terminiello v. Chicago, 337 U. S. 1 .........................
Thomas v. Collins, 323 U. S. 516, 529 .......................
Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736
Thompson v. Louisville, 362 U. S. 199, 80 S. Ct. 624,
4 L. Ed. 2d 654 ....................................................... 28,
United States v. Barnett, 1964, 376 U. S. 681, 697,
84 S. Ct. 984, 993 ..................................................
United States v. Debs, C. C. 111., 64 Fed. 724, error
denied, In Re Debs, 159 U. S. 251, 15 S. Ct. 1039 ..
United States v. Parton, 1947 (CCA-4), 132 Fed. 2d
886, 887 .....................................................................26,
United States v. Rosenberg (C. C. A. 2, 1952), 195
Fed. 2d 583, 600, 601, cert, denied, 344 U. S. 838,
73 S. Ct. 20, 21, 97 L. Ed. 652, reh. denied, 344
U. S. 889, 73 S. Ct. 134, 180, 97 L. Ed. 687, reh.
denied, 347 U. S. 1021, 74 S. Ct. 860, 98 L. Ed.
1142, motion denied, 355 U. S. 860, 78 S. Ct. 91,
L. Ed. 2d 67 ......................................................26,27,
62
27
22
62
37
63
22
71
71
71
39
73
24
23
54
68
V l l
United States v. United Mine Workers of America,
330 U. S. 308 . . . .20, 21, 23, 24, 31, 32, 33, 35, 36, 38, 41,
43, 44,47, 51, 63,64
United States v. U. S. Klans, Knights of Ku Klux
Klan, Inc., 1961, 194 Fed. Supp. 897 ................... 26,60
Whitney v. California, 274 U. S. 397, 47 S. Ct. 641,
71 L. Ed. 594 ........................................................... 28,73
Williams v. North Carolina, 317 U. S. 287, 291, 293 71
Wood v. Georgia, 375 U. S. 375, 386, 82 S. Ct.
1364, 1372 ................................................................. 70
Statutes:
Alabama Constitution of 1901, Section 144 .............. 6
City of Birmingham Ordinance 1159 ............ 2,26,27,63
Code of Alabama, 1940, Title 7:
Section 1038 ............................................................. 6
Section 1039 ............................................................. 6
Code of Alabama, 1940, Title 36, Section 5 8 ........6,49
Code of Alabama, 1940, Title 37, Sections 505 and
506 ......................................................................6,26,49
General City Code of Birmingham, 1944:
Section 311 ......................................................... 6,26,49
Section 804 ............................................................... 6, 49
Section 1142 ............................................................. 6
Section 1231 ............................................................. 6
Section 1357 ............................................................. 6
Traffic Code of City of Birmingham, Articles III
and X .....................................................................6,49
Rules:
Alabama Supreme Court Rule 47 ........................6,22,38
Supreme Court Rule 40 l.d (2 ) ................................... 3
Miscellaneous:
10 American & Eng. Enc. of Pleading & Practice.. 37
Birmingham News, July 16, 1966 ............................. 47
Birmingham News, July 24, 1966 ............................. 47
IN THE
SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1966.
No. 249.
W YATT TEE WALKER, MARTIN LUTHER KING, JR., RALPH ABERNATHY,
A. D. KING, J. W. HAYES, T. L. FISHER, F. L. SHUTTLESWORTH
and J. T. PORTER,
Petitioners,
vs.
CITY OF BIRMINGHAM, a Municipal Corporation of the
State of Alabama,
Respondent
On W rit of Certiorari to the Supreme Court of Alabama.
BRIEF FOR RESPONDENT.
PRELIMINARY STATEMENT CONCERNING
“ QUESTIONS PRESENTED” AS STATED
BY PETITIONERS.
We think the “ Questions Presented” by petitioners are
couched in language that fails to take into account the
full scope of the unlawful activity charged in the bill of
complaint and the activity prohibited by the injunction,
violation of which was charged in the contempt petition
and for which petitioners were convicted. Specifically,
the resolution of the problem into that of whether or not
the Birmingham Ordinance 1159 is unconstitutionally
vague or that the injunction must necessarily be tested
by the constitutionality of such ordinance, or that such
injunction or the ordinance is over broad and vague as
a censorial regulation of free speech as stated in (1) and
(2) its several subsections and (3), we think too narrowly
defines the issues, which must take into account the full
nature and extent of the unlawful conduct imminently
threatening the safety of lives and property of citizens
of Birmingham complained of in the bill of complaint
and enjoined and charged in the contempt petition rather
than to confine them solely to the mere question of
whether a peaceful, lawful parade or procession is con
verted into an illegal act simply by the fact that no per
mit was ever obtained to stage such assumedly peaceful,
lawful parade.
The approach taken by petitioners with respect to the
above, and also as to (4), which attempts to isolate the
defiant statements and news release of petitioners, M. L.
King, Jr., Abernathy, Walker and Shuttlesworth from its
place in the chain of events in consummation of the con
spiracy which brought about and culminated in the com
mandeering of the public streets of Birmingham by a
throng of some fifteen hundred to two thousand Negroes,
occupying the entire width of the pavement and extend
ing over both sidewalks for a destination which its lead
ers wilfully refused to disclose to law enforcement officers
and which formed a howling, violent, rock throwing mob,
inflicting personal injury and damage to property over
looks the conviction of all eight petitioners for conspiracy
to violate the injunction.
As to (5) the issue presented by petitioners leaves out
of account relevant matters.
— 2 —
It is also to be noted that 2 (c) does not appear to be
included in the Questions Presented in the Petition for
Writ of Certiorari.1
We, therefore, respectfully restate the questions per-
sented as we conceive them to be.
QUESTIONS PRESENTED.
I.
Whether the State Supreme Court properly invoked the
doctrine that a court of general jurisdiction having full
jurisdiction over the parties and with equity jurisdiction
to grant injunctions, and having done so in a controversy
over which it had jurisdiction to examine into and make
a final determination, may punish one in criminal con
tempt who wilfully, flagrantly, intentionally flouted and
defiantly violated such injunction without making any
effort to dissolve or discharge such injunction in orderly
process of law.
II.
Whether in a collateral certiorari proceeding one who,
without resorting to the lawful means available to test
the authority of such court, has arrogated unto himself
the right to contemptuously defy its order, and in the
same defiance has openly avowed his intent to violate it
and all other laws which he may decide are unjust, may
nevertheless be entitled by petition for certiorari to re
verse his conviction for criminal contempt rendered in a
proceeding in which he has been granted a full hearing,
with no failure to comply with procedural requirements:
on the alleged invalidity of the injunction for vagueness;
on the alleged invalidity of Sec. 1159 of the City Code of
— 3 —
1 This is in conflict with Supreme Court Rule 40 l.d (2).
— 4 —
Birmingham; on account of alleged exclusion of evidence;
and on account of the alleged failure of evidence to show
a violation of a particular one of the many prohibitions
of the injunction, such particular prohibition which he
denies having violated having been selected from the
many by petitioner himself?
m .
Whether one, referred to in II above, and IV below,
who has been convicted for criminal contempt for par
ticipating in a conspiracy to violate an injunction where
the conspiracy has been successful and the injunction
violated in at least one of its prohibitions, especially in
commandeering and unlawfully taking over the streets
and sidewalks of the City by a horde which formed a
violent mob, and where the sentence is the same for each
of the convicted conspirators, may attack the conviction
by isolating the act or acts done by such conspirator from
its or their place in furtherance of the consummation of
the conspiracy and apply constitutional claims of viola
tion of freedom of speech and assembly, equal protection
of the laws and lack of due process to the separate acts
so as to reverse his conviction if any of such acts in the
chain so separately treated is vulnerable to such consti
tutional attack?
IV.
Whether one who is a member of, or a member and also
an officer in and leader of an organization, Southern
Christian Leadership Conference (S. C. L. C.), or of its
affiliate organization, Alabama Christian Movement for
Human Rights (A. C. M. H. R.), against both of whom,
their members and leaders, an injunction has been issued,
and who is charged in the petition for rule nisi with
conspiring with other members or leaders to defy and
— 5 —
violate the injunction by a series of declarations and acts,
may, after conviction for a single offense, isolate such
declarations from such acts in consummation of the con
spiracy, and claim for such declarations the constitutional
immunity of free speech with effect of reversing the con
tempt conviction on certiorari proceedings?
V.
Whether or not two particular members of such organi
zation (A. C. M. H. B.), J. W. Hayes and T. L. Fisher,
both of whom attended, and one of whom (Hayes) ap
peared on its program on Saturday night, April 13th,
when solicitation for and plans were made to congregate
such unruly violent mob on Easter Sunday, April 14th,
and both of whom having admitted knowing about the
injunction and were aware that those participating in
such event on April 14th would likely be arrested, and as
to one of them (Hayes) an admission that he did so in
the face of the injunction, are entitled to reversal of their
convictions for want of proof of intent to violate the in
junction with notice or knowledge of its terms?
6
ALABAMA CONSTITUTION, STATUTES, AND
BIRMINGHAM ORDINANCES INVOLVED.
Appendix
Pages
Alabama Constitution of 1901, Section 144 and Code
of Alabama of 1940, Title 7, Sections 1038, 1039
(Quoted in Alabama Supreme Court Opinion, R.
439) (Relating to Circuit Court Jurisdiction) ----- 75
Alabama Supreme Court Rule 47, Code of Alabama,
Recompiled 1958, Title 7 (Relating to Review of
Decrees Involving Injunctions) ................................ 76-77
Code of Alabama of 1940, Title 36, Section 58, Para
graphs 14 (a) and (b); 15 (a) and ( b ) ; 16 (a), (b)
and (c); 18; 19 (a) and (b) (Relating to Use of
Streets and Highways) ...............................................77-79
Code of Alabama of 1940, Title 37, Sections 505 and
506 (Authorizing Cities and Towns to Restrain Pub
lic Nuisances) ..............................................................79-80
General City Code of Birmingham of 1944, Sections
1142, 1231 and 1357, and Traffic Code of the City of
Birmingham, Article III, Sections 3-1 (a) and (b);
3-2; 3-3; and Article X, Sections 10-3; 10-4; 10-5 (a ) ;
10-6 (a), (b) and (c) ; 10-8 (a) (Relating to Use of
Streets and Sidewalks) ...............................................80-81
General City Code of Birmingham of 1944, Section 804
(Relating to Public Nuisances), and Section 311
(Relating to Breach of Peace) ................................. 82-83
— 7 —
STATEMENT.
We feel some important parts of the Record have been
omitted from petitioners’ statement.
A. The Verified Injunction Bill.
The verified bill of complaint for injunction, temporary
and permanent, was filed April 10, 1963. In paragraph 3,
it alleges that on numerous dates in April, 1963, re
spondents
“ sponsored and/or participated in and/or conspired
to commit and/or to encourage and/or to participate
in certain movements, plans or projects commonly
called ‘ sit-in’ demonstrations, ‘ kneel-in’ demonstra
tions, mass street parades, trespasses on private
property after being warned to leave the premises
by the owners of said property, congregating in mobs
upon the public streets and other public places, un
lawfully picketing private places of business in the
City of Birmingham, Alabama; violation of numerous
ordinances and statutes of the City of Birmingham
and State of Alabama; that the said conduct, actions
and conspiracies of the said respondents in the City
of Birmingham is such conduct as is calculated to
provoke breaches of the peace in the City of Birming
ham; that such conduct, conspiracies and actions of
said respondents as aforesaid threatens the safety
(fol. 71), peace and tranquility of the City of Bir
mingham” (R. 31, 32).
Such paragraph 3 continues with allegations that such
conspiracies and actions have already caused or resulted
in serious breaches of the peace and respondents threaten
to continue such unlawful conduct unless respondents are
enjoined2 (R. 31, 32).
2 “Such conduct, conspiracies and actions aforesaid have al
ready caused or resulted in serious breaches of the peace and
Paragraph 4 and its subsections outline specific in
stances of unlawful conduct. Some of these incidents
relate to trespass upon private property,3 parading with
out a permit on April 6th, 8th and 10th (R. 33). Sub
section (c) does not charge parading without a permit
but alleges that on April 7th, 1963, respondents organized
a parade or procession to march upon the City Hall and
incident thereto,
“ did further foster, encourage and cause a mob con
sisting of approximately 700 to 1,000 Negroes to con
gregate upon the public streets of the City of Bir
mingham, blocking and interfering with traffic, such
mob having been gathered to encourage the said
intended march on City Hall of the City of Birming
ham from a point several blocks from said City Hall,
which said mob became unruly, a number of such
mob blocked the sidewalks of the City of Birmingham
and a large number refused to obey the lawful orders
of officers of the Police Department of the City of
Birmingham in their efforts to disperse said unruly
mob” (R. 33, 34).
It is also alleged that the great throng caused to be con
gregated around the City Hall in connection with such
— 8 —
violations of and disregard and contempt for the law in nu
merous specific instances hereinafter set forth and complainant
avers that said respondents, separately and severally, threaten
to continue to sponsor, foment, encourage, incite, to he com
mitted or to commit further breaches of the peace and acts and
conduct which are in violation of and disregard for the law
unless respondents are enjoined therefrom” (R. p. 32).
3 This bill of complaint was filed and the injunction issued
and contempt charges heard and the petitioners convicted on
April 26, 1963. Gober v. Birmingham, 373 U. S. 374, 83 Sup. Ct.
1311 (May 20, 1963) and similar cases from other states were
decided after the contempt conviction. Peterson v. City of
Greenville, 373 U. S. 244, 83 Sup. Ct. 1119 (May 20, 1963) ;
Avent v. North Carolina, 373 U. S. 375, 83 S. Ct. 1311 (May 20,
1963); Lombard v. Louisiana, 373 U. S. 267, 83 Sup. Ct. 1122.
— 9 —
proposed march required “ the blocking off of several
streets in the City of Birmingham to prevent breaches
of the peace and violence, including mob violence” (R.
34).
It is alleged in paragraph 5 that the acts alleged in the
two preceding paragraphs have placed an undue strain
upon the manpower of the Police Department of the City
of Birmingham in the effort to provide for the safety of
the respondents in said conduct and activities upon the
public streets and public places in said City and to pro
vide for the safety and tranquility of the entire citizen
ship and will cause damage to city property and injury
or loss of life to police officers (R. 34).
In paragraphs six and seven, a conspiracy of respond
ents and others to continue such actions and conduct to
the imminent danger to lives, safety, peace and tranquility
of the people of Birmingham unless enjoined is alleged4
(R. 34, 35). A threat to conduct “ Kneel-Ins” is alleged
in paragraph 8 (R. 35). In said paragraph 8, it is alleged
upon information and belief that the acts and conduct
4 Said paragraphs read as follows:
“ 6. Your complainant is informed and believes and upon such
information and belief avers that respondents, separately and
severally, and others acting in concert with respondents, whose
exact names and entities are otherwise unknown to your com
plainant at this time will continue to enter into the City of
Birmingham conducting themselves as above described, which
will lead to further imminent danger to the lives, safety, peace,
tranquility and general welfare of the people of the City of
Birmingham, Jefferson County, and the State of Alabama, and
that tension will continue to mount as such activities are con
tinued.
7. Your complainant is informed and believes and upon such
information and belief avers that there is strong and convinc
ing reason to believe that respondents and others acting in con
cert with respondents, whose names are otherwise unknown to
your complainant, have and will continue to conspire to engage
in unlawful acts and conduct as aforesaid unless enjoined from
so doing” (R. 34, 35).
— 10 —
of respondents “ is a part of a massive effort by respond
ents and those allied or in sympathy with them to forcibly
integrate all business establishments, churches, and other
institutions of the City of Birmingham” (JR. 35).
Allegations of irreparable injury are contained in para
graph 95 (R. 35).
The prayer for injunction is to restrain the parties,
their agents and servants, followers and those in active
concert with them and persons having notice of said
order from continuing any acts hereinabove designated,
particularly: I, engaging in, sponsoring, inciting or en
couraging (1) mass street parades, processions or like
demonstrations without a permit; (2) trespasses after
warning upon private property; (3) congregating upon
the streets or public places into mobs, and (4) unlawfully
picketing business establishments or public buildings or
performing acts calculated to cause breaches of the peace;
or II, conspiring to engage in: (1) unlawful street parades;
(2) unlawful processions; (3) unlawful demonstrations;
(4) unlawful boycotts; (5) unlawful trespasses and un
lawful picketing or other like unlawful act or from vio
lating the ordinances of Birmingham and statutes of
Alabama; or III, from doing any acts designed to con
summate conspiracies to engage in said unlawful acts
of (1) parading, (2) demonstrating, (3) boycotting, (4)
trespassing, and (5) picketing, (6) or other unlawful acts;
or IV, from engaging in acts and conduct customarily
known as “ Kneel-Ins” in churches in violation of the
5 Said paragraph reads: “9. Complainant avers that its rem
edy by law is inadequate, that the continued and repeated acts
of respondents, as herein alleged, will cause incidents of vio
lence and blood- (fol. 74) shed; that complainant has no other
adequate remedy to prevent irreparable injury to persons and
property in the City of Birmingham, Jefferson County, and
verily believes that such will occur if such respondents con
tinue to so conduct themselves which they will do if not re
strained by this Court.”
— 11 —
wishes and desires of the members of said churches6
(R. 40).
The temporary injunction writ issued in language identi
cal with the prayer of the bill (R. 43-45).
B. The Petition, for Rule Nisi.
The criminal contempt action was initiated by a peti
tion for rule nisi duly served upon all the respondents.
Such petition contained allegations charging the defiance
of the injunction and intention to disobey issued by the
Circuit Court of Alabama both in and prior to the press
conference held during the day of April 11th and in other
statements at meetings of the respondent, Alabama
Christian Movement for Human Rights on April 11th,
12th and 13th by petitioners, Martin Luther King, Jr.,
Abernathy, Shuttlesworth, Walker, A. D. King (Para
graphs 6, 7, 8 and 9—R. 85-86).
It is alleged in paragraph 7 that respondents, Aber
nathy, Shuttlesworth and A. D. King announced at the
meeting on April 11th they would participate in an un
lawful march or procession on April 12th and would go
to jail and solicited volunteers to engage in it. One or
more of said respondents openly boasted the injunction
had been violated that day (R. 85-86).
It is averred that at the April 12th meeting volunteers
were solicited to engage in unlawful processions, parades
and other unlawful activities; that respondent, Wyatt Tee
Walker, solicited volunteers to go to jail and also about
a dozen or two volunteers to die for the cause (Par. 8—
R. 36).
At the meeting on Saturday night, April 13th, respond
ent Walker called for volunteers to engage in an unlawful
6 Division of the prayer for injunction into numbered parts
is supplied in this brief for purpose of convenience and did not
appear in the original bill.
procession, in violation of the injunction and to go to jail.
A call was also made for children, ages from the first
grade np. Also a call was made for volunteers to call all
other Negroes to assemble as many Negroes as possible
at the time of the procession or march on Easter Sunday,
April 14th (Par. 9, R. 86, 89).
Specific overt acts in consummation of the conspiracy
and in violation of the injunction are alleged in paragraph
10 and its subparts (R. 87, 88). Paragraph 10 (B) relates
to the April 12th march or procession in which Peti
tioners Martin Luther King, Jr., Abernathy and Shuttles-
worth were direct participants (R. 87).
Allegations setting forth the gathering of the violent
mob on Sunday, April 14th, as a part of said conspiracy
are contained in paragraph 10-D.7 Direct participants
were respondents, A. D. King, Jr., J. W. Hayes, John
Thomas Porter and T. L. Fisher. All but said Fisher
7 “D. On Easter Sunday afternoon, in response to the said
solicitations made at said meeting on Saturday night, April
13th, as hereinabove alleged and as a part of said conspiracy
and concert of action, an unruly mob of chanting, dancing, hop
ping Negroes consisting of several thousand assembled in and
around Thurgood C. M. E. Church at 11th Street and 7th Ave
nue, North. An unlawful procession consisting of several hun
dred Negroes formed at said church and proceeded to parade
or march upon the public sidewalks and streets of the City of
Birmingham without a permit, unlawfully and in violation of
City Ordinance and in violation of said injunction. Said un
ruly mob followed along side, behind and in front of said pro
cession and persons forming a part of said mob threw rocks,
brickbats or other dangerous objects at members of the Police
Department of the City of Birmingham engaged in arresting
said members of said procession. A motor vehicle of the Police
Department was struck by a rock or brickbat or other hard ob
ject and was seriously damaged. Mr. James Ware, a newspa
per photographer employed by Birmingham Post-Herald, was
struck and injured by a rock or other dangerous object. Other
persons, including police officers, were narrowly missed by said
rocks or other dangerous objects which were thrown on said
occasion. One (fol. 125) officer of the said Police Department
was injured by one of said paraders or marchers resisting ar
rest in the tense atmosphere created by said mob” (R. 88).
— 12 —
— 13
were parties respondent and had been served with said
injunction prior thereto. The latter is alleged to have
participated with knowledge (Par. 11, R. 89).
C. Evidence.
Recruitment to Die and to Go to Jail.
At every meeting on April 12th, 13th and 14th, people
willing to go to jail were recruited, but at the meeting on
April 11th, petitioner Wyatt Tee Walker said “ he was
looking for two dozen Negroes who are willing to die
for me!” This testimony was given by Mr. J. Walter
Johnson, Jr., a reporter for the Associated Press, who
attended all of the meetings, April 12th through April
14th (Pet. Br. 7) and was testifying from his notes made
at the meetings (R. 202, 203, cross. 204).
On the question of recruitment to go to jail, Petitioner
Abernathy was upset because A1 Hibler, the Negro blind
singer who led a march on Wednesday and Thursday and
was not arrested (R. 189). He said, “ That is discrimina
tion and we don’t like it.” In other words that Hibler
was discriminated against because he was not arrested
(R. 190).
Dr. King said Ralph Abernathy and he were to follow
Hibler on Thursday but because he was not arrested on
Wednesday “ they gave him another opportunity on
Thursday and they would wait until Good Friday” (R.
189, 190).
Also at this meeting note was taken of some who had
just gotten out of jail. They were introduced to the
meeting by Rev. Young (R. 201, 202).
Recruitment of Participants in Marches.
Volunteers were enlisted to participate in the marches
(J. Walter Johnson, Jr., R. 193; Elvin Stanton, R. 245;
14 —
Petitioner T. L. Fisher, R. 301; Petitioner J. W. Hayes,
R. 333, 334). Petitioner Wyatt Tee Walker made a call
at the meeting on April 12th for students of Birmingham,
Grade 1 through graduate school, to meet Saturday morn
ing, April 13th. He said: “ There is something we want
to do with the student population of Birmingham. They
can get a better education in five days in this jail than
five months in school” (R. 202). At the meeting on Sat
urday night, April 13th, a call was made for volunteers
who would call all the Negroes in the community and get
them out the next day, Sunday, April 14th (Rev. T. L.
Fisher, R. 301, 302).
Secrecy as to Destination of Marches.
No evidence was offered of any effort to get a permit
relating to any march, procession or demonstration
charged in the rule nisi petition. The Court made it clear
that evidence of any effort made to get a permit for any
incident charged in such petition as a violation would be
relevant (R. 286, top of page). No such evidence was
ever offered, although it does appear that the head of the
Alabama Christian Movement, Rev. F. L. Shuttlesworth,
had been informed as early as April 5th of the proper
way to make an application for such a permit (R. 285,
Statement of Counsel for City).
Not only was there a failure to apply for a permit but
there was a failure or refusal to furnish accurate informa
tion as to the time, route and destination. The information
picked up by the Police Department on these mat
ters was imprecise and inaccurate. Word had been re
ceived from some source, possibly the press (R. 165) that
the demonstrations on April 12th and April 14th would
either be on City Hall or City Jail (Inspector Haley, R.
146 as to the 12th; Lieutenant Painter as to the 14th, R.
215). Rev. N. H. Smith and Rev. J. W. Hayes, both of
whom were robed participants in the April 14th march,
— 15 —
testified they did not know where the march was scheduled
to go (R. 315, 316, 338). On the afternoon of April 14th,
Lieutenant Painter questioned petitioner Wyatt Tee
Walker as to whether the destination was City Hall or
City Jail or neither (R. 215). Some information appears
to have come from petitioner Walker relating to April
12th, but this related to a march which was supposed to
come at 12:00 Noon or 12:15 (R. 180).
No Distinction Between Marchers and
Accompanying Crowds.
A large crowd gathered at a church on 6th Avenue,
North, at 16th Street. The march led by petitioners,
Martin Luther King, Jr., Abernathy and Shuttlesworth,
came out of the church but the crowd outside joined with
them. Lieutenant Painter testified, “ As the group came
out of the church then the whole group of people who
had assembled along the sidewalk followed along behind
them and I think you could describe it as one procession”
(R. 207). This related to the march held on April 12th
after 2:45 P. M. (R. 149, 206, 207).
Concerning the April 14th incident, the same witness
testified that as the marchers came out of the church and
started walking at a rapid pace, “ almost simultaneously
as if with the same movement, or I will say simultane
ously, this large crowd that had gathered outside began
moving along with them . . . covering, basically all the
area of the street and sidewalk” (R. 215). When Nelson
Henry Smith, Jr., one of the defendants on trial, was
asked on cross-examination whether anyone on the out
side of the church joined the some five or six hundred as
they came out of the church, he testified: “ Well, every
body was just going walking in the same direction” (R.
315). Inspector Haley said that after the Easter Sunday
march started: “ They did block the street. That is be
tween 11th Street and 7th Avenue up to 5th Alley and
— 16 —
11th Street. The street was solid, and the sidewalks were
solid with marchers” (R. 155). He described it as a
solid mass, filling the streets and sidewalks (R. 156, 157).
Complainants Exhibits 3, 4, 5 and 6, referred to by the
Alabama Supreme Court in its opinion (R. 436, bottom
of page) graphically depict the scene as photographed
by Mr. James Ware, Newspaper Photographer. These
exhibits appear on pages 411-414 of the record. They
were identified, described and introduced (R. 359, 360).
Exhibit 3 was taken within a block and a half of the
church from whence it started, the church appearing in
the picture on the right is not the church of origin (R.
360). Exhibit 4 shows police officers in the foreground
and the marchers in the background.
Marchers and Crowd Were One and Under
a Single Command.
Lieutenant Painter testified that on April 12th peti
tioner Wyatt Tee Walker, speaking and signalling to the
crowd, told them to circle the block one time. This was
after the police officers encountered difficulty in getting
the crowd to scatter (R. 208, 209). As to the April 14th
incident, Rev. Wyatt Tee Walker, upon being told that
by Painter the concern of law enforcement officers in be
ing informed of the time and destination of the march
“ was in the interest of controlling the crowds and law
enforcement” , to which “ he replied . . . ‘ If you control
yourself and the police as well as I control this crowd,
there won’t be any problem. I guarantee you I can con
trol these people’ ” (R. 215).
Police Succeeded in Avoiding a
Serious Racial Conflict.
On both instances the police officers blocked the imme
diate area where the crowds were congregating both to
white pedestrians and vehicular traffic as a necessary pre
17 —
caution to prevent a conflict with white racial agitators
and because of the traffic hazard created (R. 154, 170,
174). Prom the experience of the “ Freedom Rider” in
cident when outside agitators assaulted and beat the
demonstrators, Inspector Haley was of the opinion that
the demonstrations then in progress were likely to attract
these trouble makers from out of Jefferson County with
a serious racial conflict resulting (R. 174). Inspector
Haley testified that these precautions succeeded in keep
ing down an undue amount of violence and strife and
trouble away from the City, and prevented racial con
flict between Negroes and whites (R. 185). To this ex
tent by hard effort, the Police Department had maintained
law and order (R. 182, 184) and had succeeded in their
purpose to protect the demonstrators (R. 161). This was
made more difficult by the refusal of the leaders to furnish
accurate information to the Police Department (R. 170).
Movement Psychology of Violence.
On cross-examination, Lieutenant Willie B. Painter tes
tified as to the nonviolent methods of the two organiza
tions involved. “ The teachings have been nonviolent.
The psychology and methods used have been to incite
others to create violence upon the participants in demon
strations” . He also said, “ There has been a complete
program within the last year or eighteen months of teach
ing hatred of the white people, that they are your ene
mies. They were teaching nonviolence on the one hand,
but on the other hand they were saying that the Negroes
in Birmingham, Alabama, are buying fire arms to pro
tect themselves. They were supposedly teaching non
violence but yet psychologically they were advocating
violence” (R. 220).
At the time of the defiant news release on the morning
of April 11th, Petitioner Shuttlesworth also used a sep
arate paper and made some comments in which he said:
— 18
“ If the police couldn’t handle it, the mob would” (R.
250).
Also in talking to Lieutenant Painter, Petitioner Walker
said if the Movement “ did not obtain the things that we
are seeking, then we will follow the course of revolution
to obtain these things” 8 (R. 213).
The Crowds Assembled Became Unruly,
Belligerent and Violent.
Inspector Haley was asked whether the crowds on both
occasions became unruly, to which he replied: “ Yes, and
belligerent. We did not make as many arrests as we
could have if we had just faced the crowd, hut we had
other work to perform” (R. 172). Inspector Haley also
testified: “ There was violence in that one or more officers
and a newspaper man had been injured and City property
destroyed, during these incidents” (R. 182). Other evi
dence of violence, especially on the occasion of April 14th
is detailed by the Supreme Court of Alabama (R. 436).
That court made specific reference to the testimony of
■witnesses Painter (R. 216) and Ware (R. 231-233). Its
opinion also referred to the testimony of Painter that
petitioner Wyatt Tee Walker had formed the crowd out
side into a group that joined the April 14th march (R.
214, 215).
D. Treatment by Lower Courts.
The Circuit Court made clear at the outset before the
hearing began the issue he considered presented by the
contempt citation on the question of jurisdiction was
whether the court was an equity court and issued the
injunction in a case in which the Court had jurisdiction
over the parties. There remained only the question of
' This statement was in a contest of a discussion to the ef
fect that 2cc of the people in Russia succeeded in overthrow
ing the government R. 212. 213).
— 19 —
their having violated the injunction knowingly; that some
motion should have been filed so that the court could de
termine whether or not it had properly issued the in
junction before it was violated (E. 140).
In its opinion this court clearly limited the convictions
to criminal contempt for past conduct (E. 420). The
Court also commented on the absence of any evidence that
any effort had been made to comply with the require
ments of the permit ordinance. In its opinion the court
said:
“ The legal and orderly processes of the court
would require the defendants to attack the unreason
able denial of such permit by the Commission of the
City of Birmingham through means of a motion to
dissolve the injunction at which time this Court
would have the opportunity to pass upon the question
of whether or not a compliance with the ordinance
was attempted and whether or not an arbitrary and
capricious denial of such request was made by the
Commission of the City of Birmingham. Since this
course of conduct was not sought by the defendants,
the Court is of the opinion that the validity of its in
junction order stands upon its prima facie authority
to execute the same” (E. 422).
This court also concluded these petitioners were guilty
of a conspiracy, that is concerted efforts to personally
violate the injunction and encourage and incite others
to do so.0 9
9 The pertinent language of the court concerning all defend
ants except defendants Gardner, C. Woods, A. Woods, Jr. and
Palmer, as to whom motion to exclude the evidence was granted
is as follows: “Under all the evidence in the case, the Court is
convinced beyond a reasonable doubt that the remaining defend
ants had actual notice of the existence of the prohibitions, as
contained in the injunction, and of the existence of the order
itself; and that the actions of all the remaining defendants
were, in the opinion of this Court, obvious acts of contempt,
constituting deliberate and blatant denials of the authority of
— 20 —
This Court also relied upon and cited United States v.
United Mine Workers of America, 330 U. S. 308 (concur
ring opinion of Mr. Justice Frankfurter).
The Alabama Supreme Court, in reliance upon the same
Mine Workers case (330 U. S. 258, 290-295), and Howat v.
Kansas, 258 U. S. 181, and citing the concurring opinion
of Mr. Justice Harlan in In Re Green, 369 U. S. 689, 693
(R. 440-442) decided the case as one in criminal contempt
only and upon the proposition that it is the duty of one to
obey an injunction, even if it should be based upon en
forcement of an invalid ordinance, until he takes appro
priate legal steps to accomplish its discharge or dis
solution.
The Alabama Supreme Court determined the jurisdic
tional right of the Circuit Court to issue injunctions un
der Sec. 144, Constitution of Alabama, and Secs. 1038 and
1039, Code of Alabama, 1940 (R. 439), but did not explore
the constitutionality of Sec. 1159. It found there were no
procedural defects in the proceeding, except as to three
respondents, as to whom the Court felt there was insuf
ficient evidence to show a violation of the injunction with
notice of its terms” 10 (R. 446, 447).
this Court and its order and were concerted efforts to both
personally violate the said injunctive order and to use the per
suasive efforts of their positions as ministers to encourage and
incite others to do likewise” (R. 422).
10 The three as to whom convictions were quashed were
Andrew Young, James Bevil, and N. H. Smith, Jr.
— 21 —
SUMMARY OF ARGUMENT.
I.
The Supreme Court of Alabama, in the opinion under
review, had on certiorari reviewed the decision of the
Circuit Court from the criminal contempt convictions on a
record which that Court concluded shows wilful contempt
on the part of petitioners after service upon them of the
bill of complaint and writ of injunction, with the excep
tion of petitioners Hayes and Fisher, both of whom were
parties but had not been served but as to whom the Court
concluded they violated the injunction with notice. It is
submitted that court properly held the issue of the con
stitutionality of Ordinance 1159, Parading Without a
Permit, was not presented for review on certiorari from
the Circuit Court which had jurisdiction to issue the in
junction because it was a court of equity, had jurisdiction
of the parties and no effort was made to modify or dis
solve such injunction prior to its violation, there
being no question of procedural defects in the contempt
proceedings, no contention appearing in the record that
after the injunction was issued any effort was made to
request a permit or otherwise attempt to comply with the
injunction insofar as it banned parading without a per
mit as required by such ordinance. Such conclusion of
the Alabama Supreme Court rested on an adequate state
ground, that is, that on certiorari from a criminal con
tempt conviction in such case the Court will not consider
the merits of the injunction, even if it rested upon an
ordinance or statute found to be unconstitutional, a doc
trine accepted by state and federal courts alike. Howat
v. Kansas, 258 U. S. 181, 42 S. Ct. 277; United States v.
United Mine Workers, 330 U. S. 258; In Re Green, con
curring opinion of Mr. Justice Harlan, 369' U. S. 689, 693;
Ex Parte Hacker, 250 Ala. 64, 33 So. 2d 324; Hotel and
Restaurant Employees, etc. v. Greenwood, 249 Ala. 265,
30 So. 2d 696, Cert. Den. 322 U. S. 847, 68 S. Ct. 349.
22 —
A. The Alabama Circuit Court at least had jurisdiction
to determine its own jurisdiction and wilful violation of
its injunctive decree is punishable as criminal contempt
even if the court ultimately is determined to have no
jurisdiction. Shipp v. United States, 1906, 203 U. S. 563,
27 S. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265; Howat v.
Kansas, 1922, 258 U. S. 181, 42 S. Ct. 277, 66 L. Ed. 550;
Carter v. United States, 1943, 5th Cir., 135 Fed. 2d 858;
In re Williams, 26 Pa. 9, 67 Am. Dec. 374; Sima Piano
Company v. Fairfield, 103 Wash. 206, 174 Pac. 457.
Reid v. Independent Union A. W., 200 Minn. 599, 271
N. W. 300, 120 APR. 297; Main Cleaners & Dyers v. Colum
bia Super Cleaners, 332 Pa. 71, 2 A. 2d 700; See also Stoll
v. Gottlieb, 305 U. S. 165, 171, 172, 59 Sup. Ct. 134, 83
L. Ed. 104, 108, 109; 38 Am. Banks, U. S. 79; cf.—Jones
v. Securities and Exchange Comm., 298 U. S. 1, 56 Sup. Ct.
654, 80 L. Ed. 1015, 1021, 1022.
The orderly and legal way to have tested the Alabama
Circuit Court temporary injunction was to file a motion
to dissolve which could have raised the question of the
court’s authority and all constitutional or other questions
relating to the temporary injunction as petitioners knew
and mentioned in their news release, an appeal from a
ruling on which motion lies to the Supreme Court as a
preferred case. Alabama Supreme Court Rule 47 (Appen
dix, pages 76-77). The principal petitioners knew and
mentioned on the day they received service of the injunc
tion the proper way to attack it was to move its dissolu
tion. They also said they would violate the injunction
regardless and made no effort to comply and stated they
would do so and risk the possible consequences involved.
B. The rule applies even if constitutional freedoms are
involved in complying with the injunction, since the Court
will not consider the merits of the main case in the col
lateral matter of contempt, as the motion to dissolve the
injunction in a direct proceeding is the only remedy un
less the issuing court is totally without jurisdiction to
issue the injunction. Howat v. Kansas, 258 U. S>. 181, 42
Sup. Ct. 277; Schwartz v. United States, 1914 (C. C. A. 4),
217 Fed. Rep. 866; Allen v. United States, 1922 (C. C. A.
7), 278 Fed. 429; Clarke v. Fed. Trades Comm., 128 Fed.
2d 542; United States v. United Mine Workers, 330 U. S.
258, supra; Ex parte Hacker, 250 Ala. 64, 33 So. 2d 324;
Hotel and Restaurant Employees, etc. v. Greenwood, 249
Ala. 265, 30 So. 2d 696, cert. den. 322 U. S. 847, 68 S. Ct.
349; cf. United States v. Debs, C. C. 111., 64 Fed. 724, error
denied, In Re Debs, 159 U. S. 251, 15 S. Ct. 1039; cf. In
Re; Debs, 158 II. S, 564, 15 S. Ct. 900.
C. Any argument, regardless of how plausible and al
luring it may sound, which has at its underlying roots the
doctrine that any citizen is entitled to wilfully violate an
injunction issued against him without making any effort
to comply with it, or as to that matter wilfully violate
any law applicable to him simply because he does not feel
it is just as to him, without having recourse to remedies
duly provided by the law is untenable because the ultimate
and inexorable end result is chaos and anarchy. Gompers
v. Bucks Stove & Range Co., 1911, 221 U. S. 418, 450, 31
Sup. Ct. 492, 501, 55 L. Ed. 797, 34 L. R. A. (U. S.) 874;
United States v. United Mine Workers of America, 1947
(Mr. Justice Frankfurter concurring), 330 U. S. 258, 307,
308, 309, 67 Sup. Ct. 677, 703; Cox v. State of Louisiana,
1965, 379 U. S. 536, 554, 85 S. Ct. 453, 464, dissenting
opinion of Mr. Justice Black, 379 U. S. at pages 583, 584.
The record in this case compels the conclusion that peti
tioners in this case, and especially those who openly de
clared their intentions to violate the injunction had the
uttermost contempt for the court and the injunction and
made no effort whatever to comply with it but to the
contrary exploited its intentional violation as a vehicle
to obtain nationwide publicity in press, radio and TV.
— 23 —
— 24
In Re: Debs, 1895, 158 U. S. 564, 15 S, Ct. 900; United
States v. Barnett, 1964, 376 U. S, 681, 697, 84 S. Ct. 984,
993.
Submission under this Section I is that the contempt
convictions of petitioners should be sustained as against
the several constitutional grounds asserted in opposing
briefs, treating the convictions as having been solely based
upon a violation of ordinance 1159, without considering
the constitutionality thereof because of the failure of peti
tioners to present such constitutional contentions by mo
tion to dissolve prior to wilfully violating the injunction.
It is assumed arguendo that no enjoinable conduct other
than simply failure to obtain a parade permit is involved.
The primary basis is the rule of Mine Workers and
Howat v. Kansas, which we urge be left unchanged.
II.
The criminal contempt convictions of petitioners are
not erroneous and subject to reversal on account of the
contentions made in briefs for petitioners and the United
States, as amicus curiae that there was lack of due process
or failure to afford equal protection of the laws or a
violation of the freedom of speech or assembly provisions
of the First and Fourteenth Amendments.
A. Aside from any consideration of ordinance 1159, as
a support for the injunction, the conduct of petitioners
shown by the record discloses a conspiracy to violate the
injunction in the news conference, repeated meetings of
the “movement” resulting in the march on April 12th and
culminating in the assembly of the mob and the march or
procession of April 14th, when correct information as to
time, route and destination were not only not furnished
police authorities, but such information wilfully with
held, and where the entire street and both sidewalks were
preempted and commandeered by the procession or march-
— 25
ers and whose destination whether to City Hall, Northeast
or City Jail, Southwest of the starting place, was
shrouded in secrecy and which formed an unruly, bellig
erent, howling, cursing mob, gathered by and controlled
by petitioners and those in concert of action with them,
is conduct which cannot under any circumstances qualify
as constitutionally protected.
B. The First and Fourteenth Amendments do not con
fer absolute right to patrol, march, picket or otherwise
use the streets as means of communicating ideas. Such
rights are subject to the concommitant right and duty of
the City to control the use of the streets for the common
use and welfare of the public. Cox v. Louisiana, 1965, 379
U. S. 536, 554, 558, 85 S. Ct. 453, 464, 468. The existence
of the injunction in part rested upon ordinance 1159,
which assuming arguendo to be unconstitutional and that
such part of said injunction is therefore void, do not con
fer any rights upon petitioners to engage in nonconstitu
tionality protected acts described in A, above, and which
are otherwise validly prohibited by the injunction. Liquor
Control Commisison v. McGillis, 1937, 91 Utah 586, 65
Pan. 2d 1136; Kaner v. Clark, 108 111. A. 287; Ex P. Tins
ley, 37 Tex. Cr. 517, 40 S. W. 306; In Re Landau, 243
N. Y. S. 732, 230 App. Div. 308, app. dismissed 255 N. Y.
567, 175 N. E. 316.
C. The clear scope and central purpose of the verified
bill for the injunction was to preserve law and order in a
situation alleged to involve imminent danger of lawless
ness, violence, bloodshed and serious loss and damage to
property of the city and others and mass violations of
city and state laws, especially alleging interference in the
use of the streets by the congregating of a large unruly
mob with threatened breaches of the peace and mob vio
lence in consummation of a conspiracy and threatened con
tinuation of such conduct unless enjoined. All of which
constituted an enjoinable public nuisance without regard
— 26 —
to Ordinance 1159. In Re Debs, 158 U. S. 564, 15 S. Ct.
900; 39 L. Ed. 1092; City of New Orleans v. Liberty Shop,
1924, 157 La. . . . , 101 So. 797; General City Code of Bir
mingham, 1944, Sec, 311; Code of Alabama 1940 (1958
Rec. Ed.), Sections 505, 506; cf. United States v. U. S.
Klans, Knights of Ku Klux Klan, Inc., 1961, 194 Fed.
Supp. 897; U. S. v. Parton, 1943 (C. C. A. 4), 132 Fed.
2d 886, 887; Cox v. Louisiana (Mr. Justice Black, dissent
ing), 1965, 379 U. S. 578, 85 S. Ct. 453, 468, 471.
The contempt convictions may be properly rested upon
violation of those parts of the injunction writ prohibiting
the congregation of mobs upon public streets and public
places, and in connection therewith conduct calculated to
cause a breach of the peace and violation of city and
state laws, especially those related to the use of streets
and sidewalks and such injunction writ is not void for
vagueness or overbreadth. In Re Debs, 1895, 158 U. S.
564, 15 S. Ct. 900; Congress of Racial Equality v. Clem
mons, 1963 (C. C. A. 5), 323 Fed. 2d 54, 58, 64 (Gewin,
Circuit Judge, concurring); Griffin v. Congress of Racial
Equality, 1963, 221 Fed. Supp. 899; cf. United States v.
United Klans, Knights of the Ku Klux Klan, Inc., 1961,
194 Fed. Supp. 897; cf. Kelly v. Page, 1964 (C. C. A. 5),
335 Fed. 2d 114.
D. No lack of due process is involved for lack of evi
dence to show the violation of such parts of such injunc
tion. Poliafico v. United States, 237 Fed. 2d 97, 104 (C. A.
6, 1956); cert. den. 352 U. S. 1025, 77 S. Ct. 590, 1 L. Ed.
2d 597; Blumenthal v. United States, 332 U. S., pages 539,
559, 68 Sup. Ct. 248, 257; United States v. Rosenberg
(C. C. A. 2, 1952), 195 Fed. 2d 583, 600, 601, cert, denied,
344 U. S. 838, 73 S. Ct. 20, 21, 97 L. Ed. 652, reh. denied,
344 U. S. 889, 73 S. Ct. 134, 180, 97 L. Ed. 687, reh. denied
347 U. S. 1021, 74 S. Ct. 860, 98 L. Ed. 1142, motion de
nied 355 U. S. 860, 78 S. Ct. 91, L. Ed. 2d 67; In Re Debs,
1895, 158 U. S. 564, 15 S. Ct. 900.
— 27 —
III.
Considering matters presented in I and II, we submit
the constitutionality of Ordinance 1159 is not an issue
which is appropriately required to be determined in this
case, especially in view of the fact that its constitutional
ity has not been passed upon by the Supreme Court of
Alabama which granted certiorari and has under review
the decision of the Alabama Court of Appeals rendered
on such ordinance in Shiuttlesworth. v. City, 43 Ala. App.
68, 180 So. 2d 114 (Petitioners brief, page 10, Footnote 7).
IV.
The trial court and the Alabama Supreme Court con
sidered the defiant news releases and statements in their
relationship to the conspiracy to violate the injunction,
and as evidence of intent to wilfully violate without first
moving to dissolve it. In its context of apparent intent to
intimidate and exert pressure on the trial court, it was the
feeling of counsel for the City that such acts constituted
a basis to support the conviction of those involved but the
Alabama Courts refused to so deal with the news release
and related statements.
The convictions of petitioners were for a conspiracy to
violate the injunction, it is therefore not necessary to the
validity of such convictions that each petitioner is proven
to have participated in each stage or every overt act in
its consummation where the evidence discloses he was a
participant in and a part of the over-all conspiracy.
Each conspirator is guilty in equal degree for “all that
may be or has been done” whether he entered the con
spiracy at the beginning or later. Poliafico v. United
States, 237 Fed. 2d 97, 104 (C. C. A. 6, 1956); cert. den.
352 IT. S. 1025, 77 S. Ct. 590, 1 L. Ed. 2d 597; Blumenthal
v. United States, 332 U. S., pages 539, 559, 68 Sup. Ct.
248, 257; United States v. Rosenberg (C. C. A. 2, 1952),
195 Fed. 2d 583, 600, 601, cert, denied 344 U. S. 838, 73
S. Ct. 20, 21, 97 L. Ed. 652, reh. denied, 344 U. S. 889, 73
S. Ct. 134, 180, 97 L. Ed. 687, reh. denied 347 U. S. 1021,
74 S. Ct. 860, 98 L. Ed. 1142, motion denied 355 U. S. 860,
78 S. Ct. 91, L. Ed. 2d 67; In Re Debs, 1895, 158 U. S. 564,
15 S. Ct. 900.
The penalty assessed showed no distinction between
the principals who made the defiant statements and gave
out the defiant news releases and those who had lesser
facts in the conspiracy to violate the injunction.
Certainly these petitioners were deprived of no con
stitutional rights to influence the reversal of the Alabama
Supreme Court in connection with such verbal acts in
consummation of the conspiracy.
y.
The evidence in the record is adequate to sustain the
convictions of petitioners Fisher and Hayes, both of whom
are members of A. C. M. H. R., a party to the injunction
suit, and although they had not been served with the writ
knew of it prior to its violation. The evidence and infer
ences to be drawn therefrom leads to a conclusion they
had notice or knowledge of what acts it prohibited, as the
Alabama Supreme Court found. The doctrines of Thomp
son v. Louisville, 362 U. S. 199, 80 S. Ct. 624, 4 L. Ed. 2d
654; Fields v. City of Fairfield, 375 U. S. 248, only apply
when there is complete lack of evidence from which an
inference could be drawn to support the convictions. On
certiorari the ordinary practice of this Honorable Court
is not to review the weight or sufficiency of the evidence.
Whitney v. California, 274 TJ. S. 397, 47 S. Ct. 641, 71 L.
Ed. 594; Milk Wagon Drivers Union v. Meadowmoor
Dairies, 312 H. S. 287, 61 S, Ct. 552, 85 L. Ed. 836; Port
land R. L. and P. Co. v. Railroad Commission, 229 U. S.
397, 33 S. Ct. 829, 57 L. Ed. 1248.
— 28 —
— 29 —
ARGUMENT.
I.
The Convictions Should Be Affirmed on the Rule of
HOWAT v. KANSAS and MINE WORKERS With
out Reaching Constitutional Issues Concerning Ordi
nance 1159.
The Supreme Court of Alabama did not enter into con
sideration of the alleged invalidity of Sec. 1159 of the
City Code of Birmingham. The case was decided on what
we believe is an adequate state ground. The injunction
order, issued by a circuit judge in equity, who was
clothed with constitutional and statutory jurisdiction11
to issue an injunction in a case arising with respect to
matters and parties physically within its jurisdiction.
In Howat v. Kansas, 258 U. S. 181, 42 S. Ct. 277, relied
upon by the Alabama Supreme Court, the United States
Supreme Court in a unanimous opinion written by Mr.
Chief Justice Taft in Case No. 491, one of the two cases
11 Both are quoted in the Alabama Supreme Court Opinion
(R. 439) and are as follows: “See. 144. A circuit court, or a
court having the jurisdiction of the circuit court, shall be held
in each county in the state at least twice in every year, and
judges of the several courts mentioned in this section may hold
court for each other when they deem it expedient, and shall do
so when directed by law. The judges of the several courts men
tioned in this section shall have power to issue writs of injunc
tion, returnable to the courts of chancery, or courts having the
jurisdiction of courts of chancery.”
“ §. 1038. Injunctions may be granted, returnable into any of
the circuit courts in this state, by the judges of the supreme
court, court of appeals, and circuit courts, and judges of courts
of like jurisdiction.”
“ § 1039. Registers in circuit court may issue an injunction,
when it has been granted by any of the judges of the appellate
or circuit courts when authorized to grant injunctions, upon the
fiat or direction of the judge granting the same indorsed upon
the bill of complaint and signed by such judge.”
— 30
decided, review of a contempt conviction in the courts of
Kansas was sought. The injunction issued to enjoin a
strike in the mining industry. Petitioners alleged the
Industrial Court Act of Kansas “ was void because in
violation of the federal constitution and the rights of de
fendants thereunder, and so the court was without power
to issue an injunction as prayed.” 258 U. S. at pages 187-
188. The position of the Kansas Supreme Court was that
the defendants were precluded from such attack in a col
lateral contempt proceeding.
The U. S. Supreme Court agreed (258 U. S., at pages
189-190):
“ An injunction duly issuing out of a court of gen
eral jurisdiction with equity powers, upon pleading
properly invoking its action, and served upon persons
made parties therein, and within the jurisdiction,
must be obeyed by them, however erroneous the ac
tion of the Court may be, even if the error be in the
assumption of the validity of a seeming but void law
going to the merits of the case. It is for the court of
first instance to determine the question of the va
lidity of the law, and until its decision is reversed
for errors by orderly review, either by itself or by a
higher court, its orders based on its decision
are to be respected, and disobedience of its law
ful authority to be punished. Gompers v. Bucks
Stove & Range Co., 221 U. S. 418, 450, 31 Sup. Ct.
416, 55 L. Ed. 797, 34 L. R. A. (U. S.) 874; Toy Toy
v. Hopkins, 212 U. S. 542, 541, 29 Sup. Ct. 416, 53
L. Ed. 644. See also United States v. Shipp, 203 U. S.
563, 27 Sup. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265
As the matter was disposed of in the State Courts
on principles of general, and not federal law, we have
no choice but to dismiss the writ of error as in No.
154.”
— 31 —
Mr. Chief Justice Vinson, in United States v. United
Mine Workers, 330 U. S. 258, 67 8. Ct. 677, quotes with
favor the first paragraph above quoted from Howat v.
Kansas, concerning the duty to obey an injunction though
it may be based upon an unconstitutional or void law,
and concludes:
“ Violations of an order are punishable as criminal
contempt even though the order is set aside on ap
peal, Warden v. Searls, 121 U. S. 14, (1887), or
though the basic action has become moot, Gtompers v.
Buck Stove & Range Co., 221 U. 8. 418 (1911).” (330
U. 8. 258, 293, 294.)
The Alabama Supreme Court also relied upon the
United Mine Workers case and quoted at length from it
(R. 440-444). It also cited the concurring opinion of Mr.
Justice Harlan in In Re Green, 369 U. S. 689, 693 (R. 444).
In Re Green is cited and relied upon by petitioners un
der Sections I and II of their brief in substantial effect
that this case in some way weakens the application of
Howat v. Kansas, 258 U. S. 181, and United Mine Work
ers. We do not feel Re Green in any way conflicts with
the result reached by the Alabama Supreme Court in ap
plying the doctrine of Howat v. Kansas and United Mine
Workers to the instant case.
In Green, a member of the bar was sentenced to jail
and fined for contempt. When advised by the clerk an
injunction had been requested, he expressed his desire for
a hearing for which he was ready at any time. The in
junction was nevertheless issued ex parte. He then im
mediately asked for a hearing; but none was granted. At
the time the ex parte injunction was granted, the union
had on file with the National Labor Relations Board a
charge of an unfair labor practice concerning the same
controversy, but no hearing had been held on it.
32 —
Petitioner believed under Ohio law the injunction was
invalid because issued without a hearing and also because
the controversy was one for the National Labor Relations
Board and not for the state court. He therefore advised
the union officials the injunction was invalid and the best
way to contest it was to continue the picketing and to ap
peal or test any order of commitment for contempt by
habeas corpus. Gfreen was held in contempt for giving this
advice and although he was not allowed to testify in his
defense at the contempt hearing he offered to testify that,
“ I was convinced that both the judge and Mr. Ragan (op
posing counsel) were aware that I had consented to bring
these men before the court and stipulate the essential mat
ters for the express purpose of testing the validity of the
court’s order and its jurisdiction over the subject matter.’ ’
The majority opinion of this Honorable Court com
mented upon the conviction without a hearing and the
evils thereof, but also did refer to Mine Workers, and dis
tinguish it on the authority of Amalgamated Association
of St. Elec. Ry. & Motor Coach, etc. v. Wisconsin Employ
ment Relations Board, 340 U. S. 383, 71 S. Ct. 359, 95 L.
Ed. 364, as holding that a state court is without power to
hold one in contempt for violating an injunction that the
state court had no power to issue by reason of federal stat
utory pre-emption.
We respectfully contend that cases such as In Re Green1-2
and Amalgamated Association, etc. v. Wis. Emp. Rel. Bd., 12
12 Footnote 1 on page 693 of 369 U. S. mentions the fact that
Mr. Chief Justice Vinson wrote the opinion in Mine Workers
and also Amalgamated Association, etc. This is to emphasize
the point that the doctrine of the first case does not conflict
with the second. However, there is another distinction between
the two eases other than that the former dealt with a federal
court order, and the latter, a state order, in a controversy as to
whieh Congress had pre-empted the field, where if the federal
policy is to prevail, federal power must be complete. In Mine
Workers criminal contempt was involved in the pertinent ques
— 33 —
supra, dealing with the doctrine of federal pre-emption and
where no intent to flout the authority of the court was in
volved, do not in any way resemble and have no applica
tion to cases circumstanced as the instant one, where no
federal pre-emption statute is involved and where the in
junction order issued to protect lives and property, a mat
ter of state concern and state court jurisdiction,13 was
openly defied and violated, and its authority flouted, with
out seeking its dissolution or discharge, and circumstances
of mob violence, resulting in personal injury and property
damage.
Petitioners suggest the Mine Workers decision should be
distinguished, limited, or overruled. Howat v. Kansas also
relied upon by the Alabama Supreme Court is obviously
directly in point to require the denial of their petition for
writ of certiorari.
The principal significance of Mine Workers is the stamp
of approval it places on Howat v. Kansas. We have here
inabove discussed our position that neither the Wisconsin
case, nor In Re Green, supra, decided since Mine Workers,
conflict with the state ground doctrine of Howat v. Kansas,
limiting certiorari review of convictions for criminal con
tion, 330 U. S. at 293, 294. In Amalgamated Association the
order was to recall the strikers to their jobs. The Wisconsin
Supreme Court expressly held the contempt conviction was for
the benefit of the Wisconsin Board and was referred to as
“wilful and contumacious civil contempt,” 258 Wis. 1, 44 N. W.
2d 547, at page 550.
13 Matters related to the preservation of law and order in a
local community are under our federal system matters for local
authorities and of local court jurisdiction. City of Greenwood
v. Peacock, 86 S. Ct. 1800, 384 U. S. 808, 1966, dealing with re-
mandment of a removal of state court criminal prosecutions in
which the Court said: “First, no federal law confers an abso
lute right on private citizens, on civil rights advocates, on Ne
groes, or on anybody else, to obstruct a public street, to con
tribute to the delinquency of a minor, to drive an automobile
without a license, or to bite a policeman. Second, no federal
law confers immunity from state prosecution on such charges.”
tempt in the absence of any orderly attempt to dissolve or
discharge a temporary injunction before committing wilful
and defiant contempt, to the bare question of the general
authority of the court to issue an injunction without con
sidering the constitutional validity of an ordinance upon
which the injunction is based.
The thrust of petitioners argument I is denial of due
process of law and equal protection of the laws by the
failure of the trial court to admit evidence that Ordinance
1159 was discriminatorily applied before the injunction
was issued. Of course, this simply means a contention
that the ordinance as applied by the City is unconstitu
tional. This could only be shown by evidence going to the
merits of the injunction suit.
In the absence of any appropriate measures to dissolve
or modify the temporary injunction, the trial court prop
erly concluded the only issues before it were its jurisdic
tion over the subject matter invoked by a bill of com
plaint properly making parties within the jurisdiction
respondents14 and whether the injunction was wilfully vio
lated by the respondents, with knowledge or notice of the
injunction.
The Alabama Supreme Court also agreed with this posi
tion in its opinion and expressly held the question of the
— 34 —
14 The trial court made two statements on this subject. The
first, from page 140 of the Record reads: “ The Court: The only
question I can see about the jurisdiction of the Court is
whether the Court is an equity court and whether or not these
parties who are present were served and were notified of this
injunction, whether they were in the jurisdictional territory
that this court embodies; the only question is whether they got
notice and then whether or not the injunction that was issued
was issued by a judge who had the equity authority to issue
an injunction, and then whether or not they knowingly vio
lated this injunction. Your motion will be overruled.” In its
opinion and decree the trial court made a statement of similar
import (R. 422). Please also see ante, page 19.
— 35 —
constitutionality vel non of the ordinance was not an issue
for its consideration, following the principle stated in
Howat v. Kansas., 258 U. 8. 181, and United Mine Workers
(B, 440-444). This principle has received almost universal
adherence, both in Federal and State Courts.15
Adequate state ground supporting these convictions
without reaching the question of whether the ordinance
was or was not constitutional is fully established by these
and other authorities, both in Alabama and elsewhere as
we noted above. But it is argued the Alabama Court in
junction was void for failure to allow assertion of an al
leged federal constitutional defense in that such evidence
was excluded as it related to matters occurring prior to
the injunction.
A.
The Alabama court had jurisdiction to determine its ju
risdiction.
The temporary injunction was not void.
The argument of petitioners last above mentioned is in
conflict with the rule of Shipp v. United States, 1906, 203
U. 8. 563, 27 S. Ct. 165, supra; United Mine Workers;
Howat v. Kansas, 1922, 258 U. S. 181, supra, and many oth
ers which hold that where a temporary injunction or re
straining order is issued, criminal contempt conviction
will be upheld where intentionally violated without seek
ing its dissolution or dismissal. The reason is that a court
of equity has jurisdiction on a bill filed seeking an injune-
15 In Corpus Juris, Yol. 32, at page 482, note 13, starting
with Howat v. Kansas, 258 U. S. 181, cases from some 30 states
and other Federal cases are cited in support of this proposi
tion. These authorities are supplemented in 43 C. J. S., at page
1007, note 65. Note 65 is cited to support the statement:
“Where the court had jurisdiction, the fact that the injunction
or restraining order, or the order for the same is merely er
roneous, or was improvidently granted as irregularly obtained,
is no excuse for violating it.”
tion to determine its jurisdiction, even though it may ulti
mately determine it has no such jurisdiction, and such
injunction must be obeyed. Mr. Chief Justice Vinson, speak
ing for the majority in United Mine Workers, cited with
approval Carter v. United States, 1943 (C. A. 5), 135 Fed.
2d 858. There a criminal contempt conviction was upheld
although the issuing court was determined to have no
jurisdiction to issue the injunction which enjoined a labor
leader from certain activities such as picketing and inter
fering with deliveries to a restaurant in New Orleans, Lou
isiana where a labor dispute was in progress. The Court
of Appeals held the District Court was without jurisdic
tion to issue the injunction but, relying upon Shipp v.
United States, 203 U. S. 563, 27 S. Ct. 165, supra, said:
“ The order was, while it lasted, a lawful one, such
as a District Court of the United States in the exer
cise of its equity powers could make, pending a hear
ing of a doubtful question of jurisdiction. The question
of jurisdiction was not frivolous. It had never before
been decided. . . . The District Court concluded it had
jurisdiction, and if appeal had not been taken, Carter
would have been bound by the judgment. We have
reversed that conclusion, but we think the restraining
order made to preserve the subject of litigation, to-
wit: Coumanis’ business, pending a hearing was not
by the reversal rendered unlawful or void. The United
States may punish wilful disobedience of it. We have
sustained a similar temporary order as a basis for
punitive contempt proceedings, though the law under
which the suit was alleged to arise proved to be un
constitutional, in Locke v. United States, 5 Cir., 75
Fed. 2d 157. See also Howat v. Kansas, 258 U. S. 181,
42 S. Ct, 277, 66 L. Ed. 550.”
In Blake v. Nesbet, 1905. 144 Fed. 279. 2S3. 2S4. also
cited with favor by Mr. Chief Justice Vinson in Mine
— 36 —
— 37
Workers, a similar question arose. The definition of the
word “ jurisdiction” was stated. “ Jurisdiction is the power
to hear and determine a cause. The authority by which
judicial officers take cognizance and decide cases” . The
Court, at page 284, went on to quote State ex rel. Carroll
v. Campbell et al., 25 Mo. App., loc. cit. 639, Lewis, P. J.,
as follows:
“ The return avers that, on the face of the record, it
appears that the case is not one in which an injunction
should ever have issued, and that the relator was never
entitled to an injunction on the facts stated. If this
proposition were true, it would be wholly irrelevant
and immaterial to the matter in hand. That an injunc
tion was, in fact, granted by a competent authority,
held to be such under the laws of this state, is sufficient
to render the defendants liable as for a contempt, if
they have willfully disobeyed it, as the information
charges.”
The court also referred to the many authorities sustain
ing this principle of law. On the same page appears a
quotation from 10 American & Eng. Enc. of Pleading &
Practice:
“ It is well settled, and the books are full of cases
holding, that a defendant who has disobeyed an in
junction cannot justify his disobedience by showing
that the injunction was improvidently or erroneously
granted or irregularly served; and that if the injunc
tion has been improperly allowed the only remedy is
by a motion to vacate or dissolve it.”
Further on the question of jurisdiction, the court said:
“ In Clark v. Burke, 163 111. 334, 45 N. E. 235, it
was held that in an attachment for contempt in fail
ing to obey an order of the court the respondent may
question the order which he is charged with refusing
38 —
to obey only in so far as he can show it to be abso
lutely void for want of jurisdiction either of the
party, the subject-matter, or the authority to pro
nounce the particular judgment. See, also, Kerfoot
v. People, 51 111. App. 410; Tolman v. Jones, 114 111.
147, 28 N. E. 464; Billard v. Erhart, 35 Kan. 616, 12
Pac. 42; William Rogers Mfg. Co. v. Rogers, 38 Conn.
121; Woodward v. Lincoln, 3 Swanst. 626; Nether-
wood v. Wilkinson, 33 Eng. L. & Eq. 297; People v.
Bergen, 53 N. Y. 405; Kaehler v. Halpin, 59 Wis. 40,
17 N. W. 868; Moat v. Holbein, 2 Edw. Ch. (N. Y.)
188.” 144 Fed. at page 283.
The Alabama Supreme Court has without exception ad
hered to the principle established by Mine Workers and
the cases cited with approval therein, since it was decided
March 6, 1947. In fact, it was followed in Ex Parte
Hacker, June 12, 1947, 250 Ala. 64, 33 So. 2d 324, 337,
a case pending in the Alabama Supreme Court when the
decision in Mine Worders was rendered. This case and
the companion case, Hotel and Restaurant Employees v.
Greenwood, 249 Ala. 265, 30 So. 2d 696, Cert. Den. 322
U. S. 847, 68 S. Ct. 349, will be more fully discussed in
Section B, following.
That petitioners, or at least the principal persons, Dr.
King, Rev. Walker, Rev. Shuttlesworth, Rev. Abernathy,
and Rev. A. D. King, who was also present, knew the
proper way to test the validity of the injunction was to
move to dissolve it. This was discussed at the news con
ference on the morning of April 11th (R. 252). But they
deliberately chose to violate it without filing such motion.
Further under Alabama Supreme Court Rule 47 (App.
pages 76-77. appeal from any decree rendered by the trial
court on such motion is preferred and the ordinary rules
may be suspended to expedite review by the Alabama
Supreme Court.
— 39 —
B.
The principle above stated in I has been applied in cases
involving First and Fourteenth Amendment freedoms.
In Howat v. Kansas (1922), 258 U. S. 181, supra, the
injunction was issued against Howat and 150 members
of the United Mine Workers of America, District 14, on
a bill of complaint charging them with a conspiracy to
call a strike in violation of the laws of Kansas and par
ticularly the Court of Industrial Relation Act of that
state. The injunction was to enjoin respondents “ from di
recting, ordering or in any manner bringing about the hin
dering, delaying, interference with or a suspension of the
operation of any coal mines . . .” . 258 F. S. at page 188.
While the permanent injunction was attacked as void
for violation of the Federal Constitution and rights of
respondents thereunder, no specific parts of the Consti
tution are named. However, it is obvious that the sweep
ing ambit of the injunction included a violation of the
Thirteenth Amendment, as well as the First and Four
teenth, restraining peaceful picketing, peaceful assembly
and peaceful persuasion, in connection with a labor con
troversy. These are protected under many decisions of
this Honorable Court, including Thornhill v. Alabama,
310 U. S. 88, 60 S. Ct. 736.
Another case of similar import is Local 333 B, United
Marine Division of Int. Longshoremen Assn. v. Common
wealth of Virginia, 1952, 193 Va. 773, 71 S. E. 2d 159,
cert, denied, 344 U. S. 893, 73 S. Ct. 212. In this case
also the temporary injunction restrained respondents from
engaging in strike or work stoppage until it had com
plied with certain provisions of the Virginia Public Utili
ties Labor Act, which respondents claimed was not ap
plicable to them and also in contempt proceedings for
violation of the injunction without moving to dissolve it,
claimed the act was unconstitutional. The trial court
— 40
refused to allow this defense to be raised in the contempt
proceeding because it constituted a collateral attack upon
a judgment of a court of competent jurisdiction.16
It is also worthy of note that Schwartz v. United States,
1914 (CCA-4), 217 Fed. 866, cited with approval by Mr.
16 The Yirginia Supreme Court of Appeals, relying upon and
quoting from Howat v. Kansas and United States v. Mine Work
ers further stated at pages 165 and 166:
“The general rule is that where a court has jurisdiction of
the parties and the subject matter to pronounce a judgment,
such judgment cannot be attacked collaterally even if the stat
ute upon which it is based is later declared to be unconstitu
tional. In Howat v. Kansas, 258 U. S. 181, 189, 42 S. Ct. 277 ,
280, 66 L. Ed. 550, Chief Justice Taft said: ‘An injunction duly
issuing out of a court of general jurisdiction with equity pow
ers, upon pleadings properly invoking its action, and served
upon persons made parties therein and within the jurisdiction,
mnst be obeyed by them however erroneous the action of the
court may he. even if the error be in the assumption of the
validity of a seeming, bnt void law going to the merits of the
ease. It is for the court of first instance to determine the
question of the validity of the law. and until its decision is re
versed for error by orderly review, either by itself or by a
higher court, its orders based on its decision are to be re
spected. and iisooedienc-e o f them is contempt of its lawful
authority. he punished. Gempers v. Bucks Stove g Eanre
O: - a : r S. 415 450. ai S. Ct 5.5 L Ed. I f - : Toy l e v y .
>' ■ • . 5 54.5 . s
iisc Vu rid Star is v. Shipp. iOS U. S. 5SS. 57?. i " S. Ct. 155,
i- X- i i 31if. . . .
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-Am o m . S I 1 8 : ;S. Ef SL Cl, Sift, n j*. m s s t
said * 4 * vs und mpeesstve authority for the pcjcosttAm
mac ssz irder tssied ay a court with ;irrsd c::aa r*«r the suh-
>-*=•■; matter uni person most he toeyed ay the rruedes -rrn* fo
hy :nervy imi prefer pc.veedfors. Th.s true
mrtaour reused s'-stt. Sic “he ptasc-uttanjathpy t f the ir e umfisr
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41
Chief Justice Vinson in Mine Workers involved convic
tion for aiding and abetting striking miners who had
been enjoined from striking in the violation of the in
junction by furnishing them with a place of meeting
near the mines. The miners were obviously enjoined from
peaceful persuasion or free speech and from assembly,
both well recognized First and Fourteenth Amendment
Freedoms. On the defense offered to the contempt pro
ceeding by respondent that the court exceeded its power
in issuing the injunction, the court said (217 Fed. at page
869):
“ There is no force in the position that the judg
ment should be reversed because the court exceeded
its power in adjudging the defendant guilty of con
tempt for furnishing a meeting place for organizers
of the United Mine Workers of America and others,
and thus aided them in inducing by force, threats,
intimidation, and persuasion the employees of West
Virginia-Pittsburg Coal Company to quit work. It
is true that the judgment for contempt, as well as
the order of injunction, will be set aside on writ of
error, when the trial court had no jurisdiction to
make the order of injunction. In re Rowland, 104
U. S. 604, 26 L. Ed. 861; In re Fisk, 113 U. S. 713,
5 Sup. St. 724, 28 L. Ed. 1117; In re Sawyer, 124
U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402; United States
v. Shipp, 203 U. S. 563, 27 Sup. Ct. 165, 51 L. Ed.
319, 8 Ann. Cas. 265. But that condition is not pre
sented here. The court had jurisdiction of the subject-
matter—the protection of the West Virginia-Pitts
burg Coal Company in its property rights—and of
the defendant, who had appeared in the cause to
answer the charge that he had unlawfully interfered
with those rights” (Emphasis added).
However, the court cited its earlier case, John Mitchell
et al. v. Hitchman Coal & Coke Company, 214 Fed. 685,
— 42 —
131 CCA 425, recognizing that the injunction violated
their rights (constitutional rights under Thornhill v. Ala
bama, 310 U. S. 88, we interpolate) in enjoining the pro
motion of a labor union by persuasion and other peaceful
means. The Court of Appeals stated that had the order
issuing the injunction been properly attacked in the in
junction suit on appeal from an adverse decree of the
District Court, it would have been modified in his behalf.
In Hotel and Restaurant Employees, etc. v. Greenwood,
249 Ala. 265, 30 So. 2d 696, cert. den. 322 U. S. 847, 68
S. Ct. 349, the Supreme Court of Alabama in a case on
appeal from a decree enjoining a strike and peaceful
picketing incident thereto, when the strike was for a
lawful purpose, at 30 So. 2d, page 700, said:
“ The limit of judicial authority to restrain a strike
without impairment of the freedoms guaranteed by
the several amendments to the federal constitution
is to be determined by the lawfulness of the object
aimed at and the manner in which the strike is con
ducted. If the object is within the scope of union
activity, that is, reasonably related to wages, hours
or other conditions of immediate employment and
is lawfully and peaceably carried out and not attended
with violence or other unlawful acts, it should not
be subjected to judicial restraint. This principle, as
we view it, is implicit in the guarantee of the Four
teenth Amendment to onr federal constitution as an
incident of freedom of speech, as lately declared by
decisions of the United States Supreme Court. Thorn
hill v. State of Alabama. 310 U. S. 88, 6*) S. Ct. 736.
S4 L. Ed. 1093: American Federation of Labor v.
Swing. 312 U. S. 321. 61 S. Ct. 568. S5 L. Ed. '55:
Steiner v. Long Beach Local, supra."
The Supreme Court of Alabama reversed the Injunction
.horse because tt -".:1a:sc. :h: lhns:;:n::onal goo - '
of freedom or srteeen mo. see mo-y or to; resrvrc.e: >
— 43 —
However, in the companion case, Ex Parte Hacker
(June, 1947), 250 Ala. 64, 33 So. 2d 324, 337, that court
in reliance upon United Mine Workers, reversed convic
tion of civil contempt for violating the Greenwood injunc
tion, which was held to be unconstitutional and invalid.
However, the Alabama Court also held that the required
reversal of the civil contempt conviction “ did not stand
in the way of any proceeding for criminal contempt and
is without prejudice in regard thereto” (33 So. 2d at
page 337).
The same result was reached in Fields v. City of
Fairfield, 273 Ala. 588, 143 So. 2d 177, reversed on other
grounds in 375 U. S. 248, where the Alabama Supreme
Court relied upon Howat v. Kansas, 258 U. S. 181, and
United States v. United Mine Workers, 330 U. S. 258.
In that case the Alabama Supreme Court held Fields
could not attack in collateral proceedings the unconstitu
tionality of a Fairfield ordinance which provided “ It
shall be unlawful for any person or persons to hold a
meeting in the City of Fairfield without first having ob
tained a permit from the Mayor to do so.”
It is obvious that freedom of assembly and freedom
of speech were involved. But the Alabama Court held
the constitutionality of the ordinance could not be raised
in the collateral certiorari review from the criminal con
tempt conviction for violating the temporary injunction.
The Court did say the jurisdictional requirements were
sufficient to sustain the jurisdiction of the court to issue
the injunction and such order was not void on its face.
However, it is obvious that the Alabama Court did not
mean by the latter statement to entrench upon the funda
mental rule applicable to temporary injunctions as stated
in Howat v. Kansas and United Mine Workers.17
17 We think it is more logical to conclude the Alabama Court
only meant by the expression “not void on its face” that the
— 44
Submission is that insofar as the injunction decree could
be said to be based upon the alleged unconstitutionality of
Ordinance 1159, whether or not the ordinance is uncon
stitutional or has been unconstitutionally applied prior to
the issuance of the temporary injunction are not issues
before this Honorable Court to sustain reversal of the
contempt convictions of petitioners. Mine Workers and
Howat v. Kansas, and multitude of cases, state and fed
eral, following them rest upon principles that form a bed
rock upon which our civilization must stand.
C.
Respect for the law and the courts of the land is funda
mental to the protection of minorities and majorities alike,
without it no constitutional rights can endure.
Much has been written of the high place respect for the
laws and courts of the land must have if our free demo
cratic society is to be preserved for the common welfare
of minority groups and majority groups alike. Mr. Justice
Frankfurter, concurring in United States v. United Mine
Workers, 330 U. S. at page 312, stated:
“ There can be no free society without law admin
istered through an independent judiciary. If one man
injunctive decree was not based on a frivolous assumption of
jurisdiction. Please note the language of Mr. Justice Frank
furter in Ms concurring opinion in Mine Workers, 330 U. S. at
pages 309, 310: “Only when a court is so obviously traveling
outside its orbit as to be merely usurping judicial forms and fa
cilities, may an order issued by a court be disobeyed and treated
as though it were a letter to a newspaper. Short of an in
disputable 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. Whether a defendant
may be brought to the bar of justice is not for the defendant
himself to decide.
To be sure, an obvious limitation upon a court cannot be cir
cumvented by a frivolous inquiry into the existence of a power
that has unquestionably been withheld."
— 45 —
can be allowed to determine for himself what is law,
every man can. That means first chaos, then tyranny.
Legal process is an essential part of the democratic
process. For legal process is subject to democratic
control by defined, orderly ways which themselves are
part of law. In a democracy, power implies responsi
bility. The greater the power that defies law the less
tolerant can this Court be of defiance. As the Nation’s
ultimate judicial tribunal, this Court, beyond any other
organ of society, is the trustee of law and charged
with the duty of securing obedience to it.”
In Gompers v. Bucks Stove and Range Company, 221
U. S. 418, 31 S. Ct. 492, at page 501, we find:
“ If a party can make himself a judge of the valid
ity of orders which have been issued, and by his own
act of disobedience set them aside, then are the courts
impotent, and what the Constitution now fittingly calls
the ‘ judicial power’ of the United States would be
a mere mockery.”
In a context of the use of the streets by minority groups,
Mr. Justice Black in his dissent in Cox v. Louisiana, 379
U. S. 536, 559, 583, 584, 85 S. Ct. 453, 471, uses this lan
guage:
“ The streets are not now and never have been the
proper place to administer justice. Use of the streets
for such purposes has always proved disastrous to
individual liberty in the long run, whatever fleeting
benefits may have appeared to have been achieved.
And minority groups, I venture to suggest, are the
ones who always have suffered and always will suffer
most when street multitudes are allowed to substitute
their pressures for the less glamorous but more de
pendable and temperate processes of the law. Ex
perience demonstrates that it is not a far step from
what to many seems the earnest, honest, patriotic,
kind-spirited multitude of today, to the fanatical,
— 46 —
threatening, lawless mob of tomorrow. And the
crowds that press in the streets for noble goals today-
can be supplanted tomorrow by street mobs pressuring
the courts for precisely opposite ends.
Minority groups in particular need always to bear
in mind that the Constitution, while it requires States
to treat all citizens equally and protect them in the
exercise of rights granted by the Federal Constitution
and laws, does not take away the State’s power, in
deed its duty, to keep order and to do justice accord
ing to law. Those who encourage minority groups to
believe that the United States Constitution and fed
eral laws give them a right to patrol and picket in
the streets whenever they choose, in order to advance
what they think to be a just and noble end, do no
service to those minority groups, their cause, or their
country. ’ ’
Former Justice Whitaker, resigned, in discussing the
evils of so-called “ civil disobedience” and disrespect for
law in the civil rights “ movement” in a recent speech
calls attention to the fact that in his opinion sympathy
for a minority group because of conditions in some sec
tions of our country has caused many to mistakenly con
done and possibly encourage such “ civil disobedience”
with its concomitant attitude of disobedience to court
orders as well as lack of respect for the law.
The underlying thought of the speech was that the
harvest reaped in a large measure was street violence,
disregard for law. rioting, bloodshed, arson and destruc
tion of property. The prevalence of such disorder during
the last year or so has readied such propoaticms that it is
judicially noticeable. The President o f our great country
was moved to take cognisance of such widespread violence
and disorder. Speaking of rids in Xew York, Oevela&d.
ChieagOk aud other cities, mostly sel in the South, he &
— 47 —
quoted in the press as having said in a speech in July,
1966, in Indianapolis:18
“ Riots in the streets do not bring about lasting
reforms. They tear at the very fabric of the com
munity. They set neighbor against neighbor and
create walls of mistrust and fear between them. They
make reform more difficult by turning away the very
people who can and must support them.”
The M'ayor of Chicago, commenting on the presence of
petitioner, Martin Luther King, in Chicago charged King’s
staff was fomenting the disorder in Chicago and trained
youngsters in the making of fire bombs and “ were in
Chicago for no other purpose than to bring disorder to
the streets of Chicago.” 19
Section I of our argument is to the point that, treating
this case as simply one where the only charge made in the
bill of complaint was the violation of Ordinance 1159 by
failure to obtain a parading permit the conviction of peti
tioners for criminal contempt should not be reversed on
any ground urged in opposing briefs, whether due process,
equal protection of the laws or freedom of speech and
assembly because of the failure to take proper steps to
oppose the injunction before wilfully violating it. Argu
endo we assume no illegal conduct other than the failure
to obtain parade permits for the marches of April 12th
and 14th.
Opposing briefs have urged the overruling or modifica
tion of Howat v. Kansas and Mine Workers. We urge
retention without eroding or whittling away these funda
mentally sound holdings.20
18 Birmingham News, July 24, 1966, from press reports.
19 Birmingham News, July 16, 1966, release from Chicago.
20 “ There is an added reason why we must turn to the de
cisions. ‘Great cases,’ it is appropriate to remember, ‘like hard
— 48
Section II of onr brief will consider other aspects, the
injunction and the illegal acts and conduct which we feel
also justify affirmance of the contempt convictions.
n.
Aside From Violation of Ordinance 1159 the Contempt
Conviction Should Be Affirmed on the Basis of Other
Unlawful Conduct in Violation of the Injunction.
In Section I, we have considered only Ordinance 1159
as a basis for the injunction, assuming no other violations
and assuming such conduct free of any other elements of
unlawfulness. Submission is that the contempt convic
tions of petitioners are not vulnerable on account of the
contentions made in briefs filed on behalf of petitioners
and by the United States as amicus curiae on constitu
tional grounds asserted, including lack of due process,
equal protection of the laws, freedom of speech and as
sembly for the additional reason that the conduct of
which they were convicted was otherwise unlawful and
contumacious.
A.
The conduct of petitioners was otherwise unlawful.
The events of April 12th and April 14th, and especially
the latter, when a huge throng was gathered by the efforts
of and under the command of the leaders of this “ move
ment” and which took complete control of the public
cases make bad law. For great cases are called great, not by
reason of their real importance in shaping the law of the future,
but because of some accident of immediate overwhelming inter
est which appeals to the feelings and distorts the judgment.
These immediate interests exercise a kind of hydraulic pressure
which makes what previously was clear seem doubtful, and be
fore which even well settled principles of law will bend.’ Mr.
Justice Holmes, dissenting in Northern Securities Co. v. United
States, 193 U. S. 197, 400-401, 24 S. Ct. 436, 468, 48 L. Ed. 679.”
Dennis v. United States (1951), 341 U. S. 494, 528, 71 S. Ct.
857, 877, Mr. Justice Frankfurter, concurring.
— 49 —
streets of the City of Birmingham, from sidewalk to side
walk on route to the City Hall or City Jail and formed
a howling, cursing, violent mob, inflicting injury to per
sons and damage to property are entirely beyond the
scope of lawful constitutionally protected conduct.
The destination of the latter march was shrouded in
secrecy, but whether to City Hall or City Jail would
traverse some of the main thoroughfares in the City of
Birmingham heavily travelled by pedestrians and motor
vehicles. While the police kept vehicular traffic and
whites out of the immediate area where the crowd was
gathering, the path of this horde, when it commandeered
the streets and started the march was calculated to
sweep aside other pedestrians both black and white
lawfully using the sidewalks. It was on collision course
with the white population which had been excluded from
this area. It was also incompatible with the use of the
streets by ambulances and fire trucks and motorists en
titled to use them.
State laws and City ordinances governing the use of
streets and sidewalks which were being violated or their
violation imminently threatened are listed in the appendix
hereto, pages 77-79. Both state laws and city ordinances
being violated require pedestrians to walk upon side
walks, and to use the right half thereof. Title 36, Code
of Alabama, 1940 (Rec. 1958), Section 58, subsections
(16), (18) and (T9), app. 79-80; Traffic Code of Birming
ham, Sec. 10-3 and 10-8, app. 81-82.
The gathering of the violent mob was in conflict with
the ordinance making it unlawful to commit any act or
diversion “ causing or tending to a breach of the peace.”
General City Code of Birmingham, Alabama 1944, Sec.
311, App. 83. Also this conduct was an enjoinable public
nuisance. Title 37, Code of Alabama 1940, Secs. 505, 506,
App. 79-80; General City Code of Birmingham, Sec. 804,
App. 82-83.
— 50
B.
Such unlawful conduct is not constitutionally protected
nor immunized from punishment for contempt by the fact
that 1159 in part supported the injunction.
The First and Fourteenth Amendments do not confer
absolute right on minority groups to patrol, march, picket,
or otherwise use the streets as means of communicating
ideas whenever they choose, in order to advance what
they think to be a just and noble cause. Cox v. Louisiana,
379 U. S. 536, at pages 554-556, majority opinion; at pages
583, 584, Mr. Justice Black, dissenting. Municipal au
thorities have a duty to protect and preserve the use of
the streets and sidewalks for the purposes for which they
are designed for the benefit and welfare of the public.
Cox v. State of New Hampshire, 312 U. S. 569, 61 S. Ct.
762, 85 L. Ed. 1049.
Picketing, marching and patrolling the streets are not
afforded the same kind of freedom of speech by the First
and Fourteenth Amendments as those amendments afford
those who communicate ideas by pure speech. It is only
peaceful parades or processions, conducted with due re
gard for the concomitant right of the use of the streets
for the welfare of the public and with obedience to laws
enacted to govern the conduct of all in their use, that can
claim the protection of these amendments. Cox v. Loui
siana, 379 U. S. 536, 554-557. Mr. Justice Goldberg struck
down the statute involved because unbridled discretion
was vested in a public officer to prohibit peaceful parades,
379 IT. S. 557.
At page 554 of 379 IT. S., it is said:
“The constitutional guarantee of liberty implies
the existence of an organized society maintaining pub
lic order, without which liberty itself would be lost
in the excesses of anarchy. The control of travel upon
the streets is a clear example of governmental re
51 —
sponsibility to insure this necessary order . . . One
would not be justified in ignoring the familiar red
light because this was thought to be a means of social
protest. Nor could one, contrary to traffic regulations,
insist upon a street meeting in the middle of Times
Square at the rush hour as a form of freedom of
speech or assembly. Governmental authorities have
the duty and responsibility to keep their streets open
and available for movement.”
The horde commandeering the street and both side
walks in one great avalanche of humanity was not en
gaged in a lawful activity for which it could claim any
constitutional protection. Casting aside any question of
failure to obtain a parade permit, this conduct in com
plete disregard of relevant traffic laws governing the use
of the streets for the benefit of the public as a whole was
not protected by the Constitutional Amendments.
The formation of the violent mob with injury to persons
and damage to property makes the entire incident even
more certainly unprotected conduct.
Assuming arguendo: 1, that 1159 is unconstitutional; 2,
that it was unconstitutionally applied prior to the issuance
of injunction and that said fact renders the injunction
void; and 3, that the rule of Mine Workers and Howat v.
Kansas, did not apply, the convictions should nevertheless
be affirmed.
The injunction is broader in scope than the issue relat
ing to 1159. That was only a part. Other provisions of
the injunction violated adequately support the contempt
convictions. This point we shall attempt to develop in
later subdivisions of II.
The petitioners acquired no added rights because of the
inclusion of violation of 1159 as a part of the injunction
suit and as one of the grounds supporting the contempt
convictions.
— 52 —
The invalidity of a part of the injunction order would
not affect the valid part, regardless of the reason for its
invalidity. Liquor Control Commission v. McGillis, 291
Utah 586, 65 P. 2d 1136; Kaner v. Clark, 108 111. A. 287;
Ex Parte Tinsley, 37 Texas Cr. 507, 40 S. W. 306; In Re
Landau, 243 N. Y. S. 732, 230 App. Div. 308, appeal dis
missed, 255 N. Y. 567, 175 N. E. 316.
C.
The scope and purpose of the injunction was to pre
serve law and order. They adequately support the con
tempt convictions.
As alleged in the injunction bill of complaint, the re
spondents named therein conspired to encourage, to com
mit or participate in mass street parades, . . . congre
gating in mobs upon the public streets, and other public
places . . . violation of numerous ordinances and statutes
of the City of Birmingham and the State of Alabama;
that said conduct, actions and conspiracies of the said
respondents is such conduct as is calculated to provoke
breaches of the peace in the City of Birmingham; that
such conduct, conspiracies and actions of said respond
ents as aforesaid threatens the safety, peace and tran
quility of the City of Birmingham (R. 31, 32).
Allegations of specific past instances of unlawful con
duct included fostering, encouraging, and causing the
formation of a mob of some 700 to 1000 Negroes to en
courage a march upon the City Hall, which said mob
became unruly, blocked the sidewalks and refused to obey
lawful orders of officers of the Police Department in their
efforts to disperse said unruly mob (R. 33, 34).
It is also alleged that the continued and repeated acts
of respondents as alleged will cause incidents of violence
and bloodshed (R. 35).
The prayer of the hill specifically sets forth the acts
sought to be enjoined by relating them to the acts here
inabove, that is the acts and conduct alleged in the body
of the bill of complaint. These allegations of the bill
serve to clarify its prayer for an injunction prohibiting
engaging in, sponsoring, inciting or encouraging “ con
gregating upon public streets or public places into mobs
. . . performing acts calculated to cause breaches of the
peace . . . or from violating the ordinances of Birming
ham and the Statutes of Alabama.” In other words, the
prohibitions of the prayer, if not clear within themselves,
are appropriately considered in the light of the acts al
leged to have been committed or those threatened.
Opposition briefs urge the prohibitions of the above
mentioned sections of the injunction are vague. We do
not concede this to be true. Mobs, which respondents
were prohibited from inciting, sponsoring, encouraging or
engaging in clearly include unruly mobs such as those of
April 12th and April 14th, the forerunner of them having
occurred on April 7th and described in paragraph 4 (c)
of the bill of complaint. The ordinances and statutes
which they were prohibited from violating included traf
fic violations and the acts tending to cause breaches of
the peace which were enjoined obviously included those
which were the result of or reasonably to be expected
from the formation of a mob such as that described in
4 (e) (R. 33, 34).
The amicus brief also suggests the possible lack of
jurisdiction of a court of equity to issue an injunction
of this kind and overbreadth of the injunction as well.
In re Debs, 1895, 158 U. S. 564, 15 S. Ct. 900, is an answer
to both suggestions.
The authority of a court of equity to protect property
and preserve order by an injunction which may restrain
acts also criminal in nature is sustained in In re Debs,
— 53 —
— 54 —
supra, on the ground that equity may restrain a public
nuisance. 15 S. Ct. at page 909.
It is worthy of note that the State of Alabama specifi
cally authorizes municipalities to enjoin commission or
continuance of public nuisances and they are made un
lawful by city ordinance.21 However, as indicated in
Debs, the general jurisdiction of equity is sufficient with
out specific statutory authority. To the same effect is
United States v. Parton, 1947 (CCA-4), 132 Fed. 2d 886,
887. In that case the fact that the defendants were en
gaged in conduct detrimental to but not subject to penal
provisions of the laws enacted by Congress to protect
Indian Wards of the government was held to be not a
reason for denying, but as stated by the court is “ an
additional reason for granting injunctive relief. Coosaw
Mining Co. v. South Carolina, 144 IT. S. 550, 567, 12 S. Ct.
689, 36 L. Ed. 537” . 132 Fed. 2d at page 887.
That the state is under duty to keep order cannot be
questioned. Cox v. State of Louisiana, 379 U. S. at page
584, Mr. Justice Black dissenting. It must, of course, en
force its laws with even handed justice. Otherwise, equal
protection of the laws would not be afforded. It should
be noted that in a concurring opinion in one of the cases
involved in Cox v. State of Louisiana, 379 IT. S. at page
468, Mr. Justice Black expresses the view that picketing,
patrolling or marching upon a public street is not a right
granted by the First and Fourteenth Amendments of free
dom of speech, press or assembly because they communi
cate ideas but are not constitutionally protected speech,
certainly unless the people involved are where they have
a right to he.22
21 Statutes and ordinance are cited in II-A, ante page 49.
22 We quote from the pertinent part of Mr. Justice Black’s
Statement: “The First and Fourteenth Amendments, I think,
take away from government, state and federal, all power to re
55 —
Surely it cannot be rationally argued that the horde
which took over one of the streets of Birmingham with
both abutting sidewalks enroute to the City Jail some
two miles away or to City Hall nearly a mile away over
busy city thoroughfares were where they had a right to
be. Such conduct was clearly unlawful and enjoin-
able.
On any question of failure to afford equal protection
of the laws, we emphatically state that justice was even
handed. Nothing like this had ever occurred in the City
of Birmingham, so far as we are aware and have been
able to ascertain.
Turning to the overbreadth contention, we note that we
have at the beginning of II-C considered petitioners re
lated argument of alleged vagueness of the injunction in
this respect. We think it applicable here.
Before continuing with the overbreadth question, we
digress to comment on the vagueness argument of peti
tioners concerning the part of the injunction violation
as it relates to 1159, parading without a permit, and
which we have discussed in Section I of our argument.
strict freedom of speech, press, and assembly where people have
a right to be for such purposes. This does not mean however,
that these amendments also grant a constitutional right to en
gage in the conduct of picketing or patrolling, whether on pub
licly owned streets or on privately owned property. See
National Labor Board v. Fruit and Vegetable Packers and Ware
housemen, Local 760, 377 U. S. 58, 76, 84 S. Ct. 1063, 1073, 12
L. Ed. 2d 129 (concurring opinion). Were the law otherwise,
people on the streets, in their homes and anywhere else could
be compelled to listen against their will to speakers they did
not want to hear. Picketing, though it may be utilized to com
municate ideas, is not speech, and therefore is not of itself pro
tected by the First Amendment. Hughes v. Superior Court, 339
IJ. S. 460, 464-466, 70 S. Ct. 718, 720-722, 94 L. Ed. 985; Giboney
v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684, 93
L. Ed. 834; Bakery and Pastry Drivers and Helpers Local 802,
etc. v. Wohl, 315 U. S. 769, 775-777, 62 S. Ct. 816, 819-820, 86
L. Ed. 1178 (Douglas, J., concurring).” (85 S. Ct. at page 468.)
— 56 —
There is no question but that subdivision I (1) of the
prayer is directly and without equivocation for an injunc
tion to restrain a parade or procession without a permit
(R. 36, this brief, ante page 10).
To continue on the question of overbreadth, in the first
place, such question is not governed, as appears to be
assumed in opposition briefs, by the same strict rules of
construction relating to criminal statutes. This is true
for the reason that the bill of complaint furnished addi
tional information concerning the nature of the prohib
ited conduct. In addition, the door of equity is always
open to construe any decree it may have rendered, if con
sidered ambiguous, a protective device not available to
one who may violate a criminal statute. The person who
may ultimately be punished for contempt for violating an
injunction need not run the risk of punishment because
he may obtain a judicial determination in advance of any
act in violation of such injunction.
But we do not believe the injunction in this case was
vague or overbroad. For comparison, we turn to some
of the federal cases for the scope of injunctions issued.
For example, in In Re Debs, 158 U. S. 564, 15 S. Ct. 900,
912, the injunction was both sweeping and long in its
prohibition. On verified bill of complaint presented to
the court a temporary injunction was issued without a
hearing commanding the defendant,
“and all persons combining and conspiring with
them, and all other persons whomsoever, absolutely
to desist and refrain from in any way or manner in
terfering with, hindering, obstructing, or stopping
any of the business of any of the following named
railroads (specifically naming the various roads
named in the bill) as common carriers of passengers
and freight between or among any states of the
United States, . . . ” . (15 S. Ct. at page 902.)
— 57 —
We quote the remainder in Footnote below.23
Debs was convicted of contempt, for violating this in
junction. Before leaving In Re Debs, we note in the lan
guage of Mr. Justice Brewer, which is particularly perti
23 “ . . . and from in any way or manner interfering with,
hindering, obstructing, or stopping any mail trains, express
trains, or other trains, whether freight or passenger, engaged
in interstate commerce, or carrying passengers or freight be
tween or among the states; and from in any manner interfering
with, hindering, or stopping any trains carrying the mail; and
from in any manner interfering with, hindering, obstructing, or
stopping any engines, cars, or rolling stock of any of said com
panies engaged in interstate commerce, or in connection with
the carriage of passengers or freight between or among the
states; and from in any manner interfering with, injuring, or
destroying any of the property of any of said railroads engaged
in, or for the purpose of, or in connection with interstate com
merce, or the carriage of the mails of the United States, or the
transportation of passengers or freight between or among the
states; and from entering upon the grounds or premises of any
of said railroads for the purpose of interfering with, hindering,
obstructing, or stopping any of said mail trains, passenger or
freight trains engaged in interstate commerce, or in the trans
portation of passengers or freight between or among the states,
or for the purpose of interfering with, injuring, or destroying
any of said property so engaged in or used in connection with
interstate commerce, or the transportation of passengers or
property between or among the states; and from injuring or
destroying any part of the tracks, roadbed, or road or perma
nent structures of said railroads; and from injuring, destroying,
or in any way interfering with any of the signals or switches
of any of said railroads; and from displacing or extinguishing
any of the signals of any of said railroads; and from spiking,
locking, or in any manner fastening any of the switches of any
of said railroads; and from uncoupling or in any way hamper
ing or obstructing the control by any of said railroads of any
of the cars, engines, or parts of trains of any of said railroads
engaged in interstate commerce or in the transportation of pas
sengers or freight between or among the states, or engaged in
carrying any of the mails of the United States; and from com
pelling or inducing, or attempting to compel or induce, by
threats, intimidation, persuasion, force, or violence, any of the
employes of any of said railroads to refuse or fail to perform
any of their duties as employees of any of said railroads in
connection with the interstate business or commerce of such
railroads or the carriage of the United States mail by such rail
roads, or the transportation of passengers or property between
nent to the part of the injunction issued in this case to
prohibit the inciting, fostering and encouraging the
formation of mobs in carrying out the objectives of the
“ movement” , the following at page 912 of 15 S. Ct.:
“ A most earnest and eloquent appeal was made to
us in eulogy of the heroic spirit of those who threw up
their employment, and gave up their means of
earning a livelihood, not in defense of their own
rights, but in sympathy for and to assist others
— 58 —
or among the states; and from compelling or inducing, or at
tempting to compel or induce, by threats, intimidation, force,
or violence any of the employees of any of said railroads who
are employed by such railroads, and engaged in its service in
the conduct of interstate business or in the operation of any of
its trains carrying the mail of the United States, or doing in
terstate business, or the transportation of passengers and freight
between and among the states, to leave the service of such rail
roads ; and from preventing any person whatever, by threats,
intimidation, force, or violence from entering the service of any
of said railroads, and doing the work thereof, in the carrying
of the mails of the United States or the transportation of pas
sengers and freight between or among the states; and from
doing any act whatever in furtherance of any conspiracy or
combination to restrain either of said railroad companies or
receivers in the free and unhindered control and handling of
interstate commerce over the lines of said railroads, and of
transportation of persons and freight between and among the
states; and from ordering, directing, aiding, assisting, or abet
ting in any manner whatever any person or persons to commit
any or either of the acts aforesaid.
‘And it is further ordered that the aforesaid injunction and
writ of injunction shall be in force and binding upon such of
said defendants as are named in said bill from and after the
service upon them severally of said writ, by delivering to them
severally a copy of said writ, or by reading the same to them,
and the service upon them respectively of the writ of subpoena
herein, and shall be binding upon said defendants, whose names
are alleged to be unknown, from and after the service of such
writ upon them respectively, by the reading of the same to
them, or by the publication thereof by posting or printing, and,
after service of subpoena upon any of said defendants named
herein, shall be binding upon said defendants and upon all other
persons whatsoever who are not named herein from and after
the time when they shall severally have knowledge of the entry
of such order and the existence of said injunction’ ” (15 S Ct
902, 903).
— 59 —
whom they believed to be wronged. We yield
to none in our admiration of any act of heroism
or self-sacrifice, but we may be permitted to
add that it is a lesson which cannot be learned too
soon or too thoroughly that under this government of
and by the people the means of redress of all wrongs
are through the courts and at the ballot box, and that
no wrong, real or fancied, carries with it legal war
rant to invite as a means of redress the co-operation
of a mob, with its accompanying acts of violence.”
In a situation involving racial demonstrations similar
to those involved in this case, the District Court of Baton
Rouge, Louisiana, issued a temporary restraining order to
prevent irreparable injury, loss and damage and to pre
serve law and order. The court denied motion to dissolve
the temporary restraining order, but stayed further pro
ceedings in such case under the doctrine of abstention
to permit the state courts of Louisiana to determine the
issues, since the responsibility for preserving public order
is essentially that of the State. Griffon v. Congress of
Racial Equality, 1963, 221 Fed. Supp. 899. Please also
see Congress of Racial Equality v. Clemmons, 1963 (CA-5),
323 Fed. 2d 54.
The injunction or restraining order in Griffon which the
trial court refused to dissolve is also very broad.24
24 Its provisions are that CORE and persons acting in con
cert with them are: “hereby enjoining from financing, spon
soring, encouraging, or engaging in meetings or any other ac
tivities whereby violations of existing state, municipal or
federal laws are suggested, advocated or encouraged. ._ . .
. . . ‘financing, sponsoring, encouraging or engaging in meet
ings, demonstrations or other activities whereby the public
ways, streets, sidewalks or highways of the City of Plaquemine,
or of the Parish of Iberville, Louisiana, are blocked, or the un
impaired use thereof denied to other traffic lawfully attempting
to use the same.’
. . . ‘financing, sponsoring, encouraging or engaging in meet
ings or other activities wherein or whereby disobedience of the
In Kelly v. Page, 1964 (CA-5), 335 Fed. 2d 114, the
restraining order was obtained by the City of Albany,
Georgia, bnt the denial of temporary injunction because
of changed conditions was appealed to the Fifth Circuit
Court of Appeals and remanded by it to the District Court
for a full findings of fact and conclusions of law. The
restraining order of the District Court issued July 20,
1962, was directed to Rev. Martin Luther King, Reverend
Ralph Abernathy, Reverend Wyatt Tee Walker, Southern
Christian Leadership Conference and others, including
The Albany Movement. It restrained them and those
acting in concert or participation with them who receive
actual notice of the order by personal service or otherwise,
. . . “ from continuing to sponsor, finance or encour
age unlawful picketing in the City of Albany, from
engaging or participating in any unlawful congre
gating or marching in the streets, on the sidewalks,
or other public ways of the City of Albany, Georgia,
from conspiring, encouraging or participating in any
boycott in restraint of trade, or from doing any other
act designed to provoke breaches of the peace or from
doing any act in violation of the provisions herein
referred to.’ ’ Asa D. Kelley, Jr., et al. v. M. S. Page,
et al., in the U. S. District Court Middle Dist. of Ga.,
Albany Div., No. 727, issued July, 1962 (unreported).
In United States v. U. S. Klaus, Knights of Ku Ivlux
Klan, 1961, 194 Fed. Supp. 897, District Judge Johnson
lawful orders of properly constituted law enforcing agencies
and their personnel is advocated, suggested or encouraged.’
. . . ‘financing, sponsoring, encouraging or engaging in meet
ings or any other activities designed or held for the purpose of
impeding or obstructing the administration of justice or the
orderly functions of government.’
. . . ‘engaging in any activity designed to or which does im
pede, hinder or obstruct officers of the law or officials of the
Parish of Iberville, Louisiana, or the Town of Plaquemine,
Louisiana, from performing and discharging the duties of their
respective offices’ ” (221 Fed. Supp. 901).
— 60 —
— 61 —
issued a sweeping injunction against the Ivlan, but also
issued a restraining order against the Southern Christian
Leadership Conference, Ralph D. Abernathy, Martin Luther
King, Jr., F. L. Shuttlesworth, Wyatt Tee Walker, and all
others acting as their agents, officers or members in or
employees of or acting in concert with them enjoining the
sponsoring, financing and encouraging of publicized trips
of “ Freedom Riders” which will foment violence in and
around bus terminals and bus facilities.
D.
The evidence is sufficient.
We do not repeat evidence noted in our Statement, ante
pages 13-18, and also that contained in petitioners’ brief
that shows beyond all doubt that the “ Movement” was
highly organized and all its moves carefully planned and
carried out. The chief strategist was petitioner, Wyatt
Tee Walker (R. 211), who was in direct charge of the
April 12th and April 14th incidents.
Of course, each of the conspirators is responsible for
any unlawful act that may result pursuant to the carry
ing out of the conspiracy. It is not necessary that each
be a participant in everything that is done. “ A conspirator
may join at any point in the progress of the conspiracy
and be held responsible for all that may be and all that
has been done” . Poliafico v. United States, 1956 (C. A.-
6), 237 Fed. 2d 97, 104, cert. den. 352 U. S. 1025, 77 S. Ct.
590, 1 L. Ed. 2d 597.
E.
Convictions sustainable on conspiracy charge.
It is not necessary to a conviction for a conspiracy that
each of the conspirators shall directly participate in every
act in furtherance of its consummation. Blumenthal v.
United States, 332 U. S. 539, 557, 558, 68 S. Ct. 248, 257.
— 62 —
Conviction for a conspiracy may be sustained whether the
purpose is lawful but is consummated by unlawful means
or when the purpose is unlawful by any means whether
lawful or unlawful. Duplex Printing Press Co. v. Deer-
ing, 254 U. S. 443, 465, 41 S. Ct. 172, 176, 65 L. Ed. 349,
16 A. L. E. 196.
It matters not how many otherwise unlawful acts may
be encompassed within the furtherance of the over-all
conspiracy, the criminal offense is one and one punishment
alone is properly imposed. Skelly v. U. S., C. C. A., Okl.,
76 F. 2d 483, certiorari denied, 55 S. Ct. 914, 295 U. S.
757, 79 L. Ed. 1699; Berman v. U. S., C. C. A. Okl., 76
F. 2d 483, certiorari denied, 55 S. Ct. 914, 295 U. S. 757,
79 L. Ed. 1699.
In this case, the gravamen of the criminal contempt
offense charged is violation of the injunction by concerted
action of the petitioners in the violation of the injunction.
It is immaterial whether some acts committed in further
ance and consummation of the conspiracy to violate the
injunction may be lawful, and standing alone, legally pro
tected by Constitutional provisions relating to freedom of
speech, assembly or that equal protection of the laws or
due process were not afforded with respect to them as so
isolated. The point is that the injunction was knowingly
violated in at least one of its prohibitions in concert of
other and so charged in the petition for rule nisi and
that is sufficient to sustain the contempt convictions.
Short v. United States, 1937 (CCA-4), 91 Fed. 2d 614;
People v. Tavormina, 1931, 257 N. Y. 184, 177 N. E. 317.
Although this subsection E is made a part of our
Argument, Section II, we respectfully request its inclusion
with authorities herein cited in consideration of Sections
III, IV, and V, as well.
— 63 —
III.
The Constitutionality of 1159.
We have heretofore argued in Section I that the ques
tion of constitutionality of 1159 was never reached be
cause the application of the rule of Mine Workers and
Howat v. Kansas does not permit that issue to be reached.
We have urged and continue to urge adherence to this
rule which places respect for the law as a fundamental
foundation stone of our democratic society. An editorial
written by an editorial writer for The Dallas Morning
Star on October 14, 1966, comments on this case, after
saying that the questions are numerous and perplexing:
“ But there is only one issue: Does the individual
have the right to haunt a court order, regardless of
whether the order is right or wrong?
There is only one obvious answer. And, church-
state relationship aside, God help our system of rule
by law if the Court arrives at any other answer.”
Please see Appendix hereto, page 85.
In II, we have urged affirmance of the contempt convic
tions because of the presence of other features of the in
junction prohibiting other unlawful conduct engaged in
that sustains the contempt convictions aside from such
mere violation of ordinance 1159.
We do not recede from the above positions but we now
emphasize an additional reason the unlawful conduct of
petitioners precludes a consideration of the constitution
ality of 1159, even though the convictions should be held
to rest upon its violation.
First, the attack is by those who unquestionably vio
lated the ordinance without making any application for
a permit required by it. But their standing to make such
an attack in such a case is dependent upon their conduct
being otherwise lawful. As stated in Staub v. City of
Baxley, 1958, 355 U. S. 313, 78 S. Ct, 277, 2 L. Ed. 2d
— 64 —
319, where a licensing ordinance was stricken down for
failure to contain appropriate standards for issuance
thereof, when no attempt was made to obtain such license:
“ It will be noted that appellant was not accused
of any act against the peace, good order or dignity
of the community, nor for any particular thing she
said in soliciting employees of the manufacturing
company to join the union. She was simply charged
and convicted for ‘ soliciting members for an organi
zation without a permit.’ ” 355 U. S. at page 321.
The same case limits the right of attack by one not
making application for such a license or permit to an
ordinance void on its face.
We respectfully urge that on this point too the peti
tioners have failed to qualify in their right to urge its
unconstitutionality assuming arguendo that all other rea
sons urged herein precluding such attack are held to be
without merit.
Ordinance 1159 does contain standards for the issuance
of a parade permit. We recognize that the Court of Ap
peals of Alabama has said these standards are overbroad.
However, it should be noted that question was raised be
fore the Alabama Court of Appeals by one directly
charged with its violation simply and no other unlawful
acts or conduct were involved in the issues before the
Court. Certainly the rule of Mine Workers and Howat v.
Kansas was not involved.
We think the Court of Appeals was wrong in its opin
ion. Certainly, we do not see any significant distinction
between the Birmingham Ordinance standard and those
of the NIMLO Model Ordinance approved by the Alabama
Court of Appeals. 180 So. 2d pages 129-131.
But it also need be remembered that as petitioners say
on page 10 of their brief, this decision is now being re
— 65 —
viewed on certiorari granted by the Supreme Court of
Alabama. That court has not as yet construed the ordi
nance, but no doubt will do so.
In a 1961 case, the Supreme Court of South Carolina
has dealt with the question and we think brought to focus
a distinction which the Alabama Court of Appeals ap
parently overlooked. In City of Darlington v. Stanley,
1961, 239 S. C. 139, 122 S. E. 2d 207, that court upheld a
parade permit ordinance when the permit was required to
be issued by the Mayor or Council, subject to their dis
cretion and, “ subject to the public convenience and pub
lic welfare” .
There is little, if any, actual difference between the
standards of the Darlington ordinance and those of 1159,
although more words are used in the latter. The Darling
ton ordinance was upheld on the authority of Poulos v.
State of New Hampshire, 345 U. S. 395, 73 S. Ct. 760,
768, 97 L. Ed. 1105, 30 ALR 2d 987, and Cox v. New
Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049, 133
ALR 1396. Please see 122 SE at pages 211, 212.
The point of the Darlington case is that the discretion
was not unbridled, but convenience and public welfare
necessarily meant such things as safety, proper policing,
preventing confusion and minimizing the risk of disorder
in the use of the streets. With this construction, the Dar
lington ordinance was upheld by the South Carolina Su
preme Court, just as a similar New Hampshire Statute
was upheld after being so construed by that state’s high
est court. As so construed the statute was held to be con
stitutional by the Supreme Court of the United States in
Poulos and Cox.
In the light of these cases, it seems logical that 1159
should be properly construed, as in Darlington, Poulos and
in Cox to restrict any unbridled discretion and its use to
matters concerning the proper use of the streets in safety,
— 66 —
without confusion, risk of disorder, and with proper re
gard for policing necessities. We think the Supreme Court
of Alabama may well so construe 1159. In Darlington, the
court applied the rule of law favoring construction of a
statute in such a way as to uphold its constitutionality.
Obviously, it cannot be construed to be invalid as applied
to petitioners. Conduct otherwise unlawful and failure to
apply for a permit, and other reasons we have argued
herein preclude this.
IV.
Statements and News Release Made by Petitioners Walker,
King, Abernathy and Shuttlesworth Cannot Be Iso
lated From Their Direct Part in the Violation of the
Injunction to Stand as Protected Free Speech.
Under their Proposition III (Pet. Br. 71-76), petitioners
attempt to isolate evidence of derogatory statements,
criticizing the courts of the South and the injunction in
this case in particular, from the direct pronouncement
of definance and intent to violate the injunction contained
therein. The point is made that the petition for show
cause order charged these written and oral declarations
as a separate offense as to the four petitioners above
named, and since the conviction was single their convic
tions should be reversed; if standing alone, such charges
could not be sustained because they conflict with con
stitutionally protected free speech.
Our answer is two fold. First, the statements and
declarations are verbal acts, but when taken into account
with other acts constitute evidence of the guilt of not
only these four petitioners, but the others as well, of a
conspiracy to defy and violate the injunction, which is
criminal contempt. The thrust of the charge against all
respondents made a party to the show cause petition is
that they conspired to defy and violate the injunctive
- 67-
order in the consummation of which conspiracy certain
meeting were held, statements, verbal and written, were
made, and other overt acts committed as recited in the
petition. The charges were so considered by the trial
court. Only one sentence of conviction was imposed. Each
respondent found guilty was treated alike; the four who
played major roles in the conspiracy were given the s a m e
punishment as those who were found guilty of having-
played minor parts. To say that the trial court must be
presumed to have meted out added punishment to the
four because of the statements and declarations of which
they alone were guilty is to ignore the plain facts dis
closed by the trial court’s decree. As shown by the
Record,25 the prayer of the petition to show cause was
that the four be required to perform in the future an
affirmative act of recanting and retracting these declara
tions, civil contempt. But the trial court refused to do
this and restricted the convictions to past conduct only,
criminal contempt.
This treatment of the contempt petition by the trial
court, considering all respondents equally guilty of the
overall conspiracy consisting of a series of acts to flout
and violate the injunction in carrying on the “ Move
ment” ,26 which respondent King said had reached the
25 Please see prayer for relief wherein the petitioners who
played major roles in the conspiracy were distinguished from
those playing minor roles (R. 89, 90). Petitioners prayer for
relief (R. 90) is in pertinent part as follows: “ . . . and further
why each of said respondents, Wyatt Tee Walker, Ralph Aber
nathy, F. L. Shuttlesworth and Martin Luther King, Jr., shall
not continue to be adjudged in contempt of this court and from
time to time punish therefor unless they shall publicly retract
or recant the statements made publicly at press conferences and
mass meetings on April 11, 1963, of their intention to violate
the injunction described in the foregoing petition.”
20 What the “movement” was has never been defined, but the
Alabama organization enjoined was the Alabama Christian
Movement for Human Rights. That it was an organized,
— 68 —
point of no return (R. 243, 244), is sustained by a number
of decisions of this Court and other courts. Included
among these are: Blumenthal v. United States, 332 U. S.,
pages 539, 559, 68 Sup. Ct. 248, 257; United States v.
Rosenberg (C. C. A.-2, 1952), 195 Fed. 2d 583, 600, 601,
cert, denied 344 U. S. 838, 73 S. Ct. 20, 21, 97 L. Ed. 652,
reh. denied 344 IT. S. 889, 73 S. Ct. 134, 180, 97 L. Ed. 687,
reh. denied 347 IT. S. 1021, 74 S. Ct. 860, 98 L. Ed. 1142,
motion denied 355 U. S. 860, 78 S. Ct. 91 L. Ed. 2d 67;
People v. McCrea, 6 N. W. 2d 489, 303 Mich. 213, cert,
denied 318 U. S. 783, 63 S, Ct. 851, 87 L. Ed. 1150.
Each of the conspirators is guilty in equal degree for
“ all that may be or has been done” , whether he entered
the conspiracy at the beginning or later. Poliafico v.
United States, 237 Fed. 2d 97, 104 (C. C. A.-6, 1956); cert,
den. 352 U. S. 1025, 77 S. Ct. 590, 1 L. Ed. 2d 597.
It is of no moment that the unlawful conspiracy was
in part consummated by the spoken and written word.
An unlawful act, including as a component element thereof
the use of written or oral words, gains no constitutional
protection as to freedom of speech or press. This was
made clear in Giboney v. Empire Ice and Storage Com
pany, 336 U. S. 490, 502, 69 S. Ct. 684, 691, 93 L. Ed. 834,
where the court said:
“ It has never been deemed an abridgment of free
dom of speech or press to make a course of conduct
illegal merely because the conduct was in part initi
ated, evidenced or carried out by means of language
either spoken, written or printed.”
planned, sustained program in which publicity of all kinds for
money raising and other purposes was an integral part is
clear. Without doubt, the defiant news release and other like
declarations were intended, along with other overt acts exploit
ing defiance and violation in furtherance of these purposes in
the area of nation-wide publicity of the “Movement” , for such
money raising and possibly other purposes.
-— 69 —
Second, the declarations, written or verbal, even if
standing alone, are more than mere speech. They do more
than merely criticize the court for issuance of the in
junction. Even aside from any further involvement of
these men in the chain of events that followed, and even
if the conspiracy charge had not been made against them,
it is clear that their joint declarations encouraging and
inciting the violation of the injunction by the other mem
bers of S. C. L. C. and A. C. M. H. B. were more than
free speech. They partake more of the nature of “ verbal
acts” .27
As has been held in Fox v. Washington, 326 U. S. 273,
35 S. Ct. 383, 59 L. Ed. 573, a man may be punished for
encouraging the commission of a crime.
We have read the decisions of this Court cited by
petitioners. None of them involved a direct threat to defy
and violate, encouraging and inciting the violation of an
injunction or restraining order by the leaders of an en
joined organization, resulting in its violation. Conse
quently, they are distinguishable from the instant case.
In re Sawyer, 360 U. S. 622, 629, 79 S. Ct. 1376, 1379,
presented the question, “ Did post trial speech of lawyer
impugn the integrity of the U. S. District Court Judge
or reflect upon his impartiality!” This Court in con
sidering the notes of the news reporter made on the
speech held it did not. A majority of the court, composed
of Mr. Justice Frankfurter, Mr. Justice Clark, Mr. Justice
Harlan and Mr. Justice Whittaker, dissenting, together
with Mr. Justice Stewart, concurring, held that criticism
of a trial judge by a lawyer while engaged in a pending
case, if made with the intent to obstruct justice, is not
protected free speech. It is logical that such conduct by
27 Gompers v. Buck’s Stove and Range Co., 221 U. S. 418,
31 S. Ct. 492, 497, uses this expression in speaking of words
used, “unfair” or “we don’t patronize” , in relation to a boycott.
— 70
a party to pending litigation would likewise be unpro
tected.
In Wood v. Georgia, 375 U. S. 375, 386, 82 S. Ct. 1364,
1372, the contempt citation was for criticizing a grand
jury charge to investigate possible evils resulting from
a bloc vote. The sheriff, who expected to soon be up for
election, was the defendant. Mr. Chief Justice Warren
noted the fact that no individual was on trial and no jury
involved. He made this pertinent distinction:
4‘And, of course, the limitations of free speech as
sume a different proportion when expression is di
rected toward a trial as compared to a grand jury
investigation.” 375 U. S., at pages 389, 390.
Bridges v. California, 314 U. S. 252, concerns contempt
convictions for newspaper editorials and a telegram sent
by Bridges to the Secretary of Labor. Mr. Justice Black,
writing for the majority of five justices, made it clear
that Bridges’ telegram, which stated a strike would re
sult if the California court decree should be enforced,
was not a threat to violate the court order:
“ It is not claimed that such a strike would have
been in violation of the terms of the decree, nor that
in any other way it would run afoul of the law of
California. On no construction, therefore, can the
telegram be taken as a threat either by Bridges or
the union to follow an illegal course of action.
“ Moreover, this statement was made to the Secre
tary of Labor, who is charged with duties in con
nection with prevention of strikes.” 314 U. S., at page
277.
Please contrast the defiant declarations of intention to
violate the court order in the instant case, made and
repeated at meetings clearly designed to encourage and
incite the organizations, S. C. L. C. and A. C. M. H. R.,
and their members, to violate the court order.
— 71
Pennekamp v. Florida, 328 U. S. 331, 66 S. Ct. 1029, had
to do with editorials in a Miami newspaper. This involved
no threat by a party to violate a court order, or as it was
expressed, to interrupt the orderly processes of the court.
Such interruption is stated to be a proper test in balanc
ing freedom of expression against improper interference
with the orderly administration of justice. 328 U. S., at
page 336. Please note the extreme contrast in this re
spect between Pennekamp and the instant case.
Craig v. Harney, 331 U. S. 367, 67 S. Ot. 1249, concerned
criticism of the action of a state trial judge in newspaper
stories and an editorial. No threat nor overt act to dis
obey a court order resulted. The case is entirely dissimilar.
Two other cases cited by petitioners, Garrison v. Louisi
ana, 379 U. S. 64, 85 S. Ct. 209, and New York Times v.
Sullivan, 376 U. S. 254, 84 S. Ct. 710, are not pertinent.
They deal with libel, criminal and civil.
“ When a case is finished, courts are subject to the same
criticism as other people; but the propriety and necessity
of preventing interference with the course of justice by
premature statement, argument or intimidation hardly can
be denied (emphasis ours).” Patterson v. Colorado, 205
U. S. 454, 27 a Ct. 556, 558.
Thomas v. Collins, 323 U. S. 516, 529; Stromberg v. Cali
fornia, 283 U. S. 359, 367-368; Williams v. North Carolina,
317 U. S. 287, 291, 293; and Terminiello v. Chicago, 337
U. S. 1, do not enunciate any principle which is applicable
to this case. Here, the conviction was for having con
summated a conspiracy to violate the injunction and the
written and spoken words used were not constitutionally
protected because they were specific calls to action of an
unlawful nature. The case of Holt v. Virginia, 381 U. S.
131, 85 S. Ct. 1375, is certainly not remotely applicable.
There the lawyer was adjudged in direct contempt of
— 72
court because of having filed a motion for change of
venue.
The declarations in defiance and threats of violation,
accompanied by open encouragement and incitement to
violation of the injunction, of which the four petitioners
were guilty, cannot be justified as protected free speech
by any decision mentioned by petitioners or, for that
matter, by any other decision or authority that we have
been able to find.
V.
The Conviction of Petitioners Hayes and Fisher
Is Sustained by the Evidence.
These petitioners urge that their convictions should be
overturned because of lack of evidence that they had
knowledge or notice of the injunction terms. Both were
active members of A. C. M. H. It., Hayes for six years
(R. 333) and Fisher for four years (R. 300).
Both of them were attendants at the meetings held prior
to the Sunday, April 14th, parade or procession, in which
they both took part. Both attended the meeting of Satur
day, April 13th. At this meeting volunteers were re
cruited for the parade or procession to be held the next
afternoon, and for volunteers to go to jail. Also, volun
teers were solicited to call all the Negroes in the com
munity to get them out the next day for this “ demon
stration ’ ’ .2S
Petitioner Hayes admitted to Detective Jones that he
was with the leaders in the Sunday, April 14th march, and
28 In Hayes’ testimony it was referred to as a “ demonstra
tion” . This witness said he had heard earlier that demonstra
tors had been enjoined. He said he had made up his mind that
he would take part in it and he went for that purpose (R. 336,
337).
— 73 —
that he knew of the injunction and was just marching in
the face of it anyway (R. 256, 257).
Respondent Fisher admitted he attended both the meet
ings held on Saturday night and “ that held on Friday
night as well” (R. 300, 301).
It was the Friday meeting when petitioner Walker made
his call for Negroes willing “ to die for me” . He also
made a call for students, grades one through graduate
school. At this and all meetings volunteers to go to jail
were called for. Fisher stated volunteers “ to walk” were
called for at the Saturday, April 13th meeting. They were
to walk the next day, April 14th (R. 301).
He admitted he knew about the injunction (R. 354);
that it was interpreted to him that if he participated in
the April 14th demonstration he would have to go to jail
(R. 304, 305).
As the Supreme Court of Alabama stated in affirming
the judgment against them:
“ We think it would require of the trial court an
unduly naive credulity to declare that the court erred
in concluding that Hayes and Fisher had knowledge
that marching on the streets was enjoined and that
they knowingly and deliberately violated the injunc
tion by marching or parading on Sunday” (R. 446).
The doctrine of Thompson v. Louisville, 362 U. S. 199,
and Fields v. City of Fairfield, 375 U. S. 248, is not appli
cable.
Of course, it is only in the event of a complete lack of
evidence that this Honorable Court will invoke the right
to examine the record and make its independent deter
mination on any question of fact. Whitney v. California,
274 U. S. 357, 47 S. Ct. 641, 71 L. Ed. 594; Milk Wagon
— 74
Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 61
S. Ct. 552, 85 L, Ed. 836; Portland E. L. & P. Co. v. Rail
road Commission, 229 U. S. 414, 33 S. Ct. 827, 57 L. Ed.
1248. We submit that the evidence and inferences to be
drawn therefrom are adequately sufficient, especially in
view of the fact that it comes to this Honorable Court
with a favorable presumption on the facts determined by
the Alabama Supreme Court.
CONCLUSION.
It is respectfully submitted that judgments of convic
tion should be affirmed.
Respectfully submitted,
J. M. BRECKENRIDGE,
EARL McBEE,
WILLIAM C. WALKER,
600 City Hall,
Birmingham, Alabama 35203,
Attorneys for Respondent.
APPENDIX.
— 75 —
APPENDIX.
Alabama Constitution of 1901.
“ Sec. 144. A circuit court, or a court having the juris
diction of the circuit court, shall be held in each county
in the state at least twice in every year, and judges of
the several courts mentioned in this section may hold court
for each other when they deem it expedient, and shall do
so when directed by law. The judges of the several courts
mentioned in this section shall have power to issue writs
of injunction, returnable to the courts of chancery, or
courts having the jurisdiction of courts of chancery.”
Code of Alabama of 1940.
Title 7.
“ §1038. Injunctions may be granted, returnable into
any of the circuit courts in this state, by the judges of
the supreme court, court of appeals, and circuit courts,
and judges of courts of like jurisdiction.”
“ § 1039. Registers in circuit court may issue an in
junction, when it has been granted by any of the judges
of the appellate or circuit courts when authorized to grant
injunctions, upon the fiat or direction of the judge grant
ing the same indorsed upon the bill of complaint and
signed by such judge.”
Code of Alabama—Recompiled 1958.
Title 7.
(APPENDIX)
Supreme Court Rule 47.
“ Appeals Involving Extraordinary or Remedial Writs.
In all appeals involving extraordinary or remedial writs,
these rules shall apply unless the court orders otherwise.
In appeals from judgments or decrees rendered in habeas
corpus, injunction, certiorari, supersedeas, quo warranto,
mandamus, prohibition, and appointing or refusing to
appoint a receiver proceeding, the appellant within five
days after the appeal has been taken, or the appellee
within five days after service of the notice of appeal, may
petition this court to reduce the time for the filing of
briefs in the cause and to specify an earlier date for sub
mission of the appeal. Adversary counsel shall be given
three days notice of the date and time of the proposed
presentation of the petition to the court. Upon presenta
tion of the petition, the court may prescribe time limita
tions for the filing of briefs and for submission which are
less than otherwise prescribed by the rules, if the court
is of the opinion that the normal time allowed by these
rules for filing of briefs and submission of the appeal
would work injustice, or the appeal involves a question
of great public interest affecting the public good and re
quires an earlier filing of briefs and submission of the
appeal. When the court is not in session, such petition
may be presented to and acted upon by the senior ac
cessible member of the court.
The provision of this rule providing for the earlier
filing of briefs and earlier submission of a cause shall not
apply in any case where the appellant, because of un
certainty as to his remedy, seeks relief by mandamus as
— 77 —
an. alternative to his appeal, nor to appeals in cases where
the injunctive relief involved was merely incidental to
other relief sought.”
Code of Alabama of 1940.
Title 36.
Section 58.
“ (14). Pedestrians subject to traffic regulations.
(a) Pedestrians shall be subject to traffic-control signals
at intersections as provided in section 58 (37) of this
title, but at all other places pedestrians shall be accorded
the privileges and shall be subject to the restrictions
stated in sections 58 (1) to 58 (52).
(b) Local authorities are hereby empowered by ordi
nance to require that pedestrians shall strictly comply
with the directions of any official traffic-control signal and
may by ordinance prohibit pedestrians from crossing any
roadway in a business district or any designated high
ways except in a crosswalk.”
“ (15). Pedestrians’ right of way in crosswalks.
(a) When traffic-control signals are not in place or not
in operation the driver of a vehicle shall yield the right
of way, slowing down or stopping if need be to so yield,
to a pedestrian crossing the roadway within a crosswalk
when the pedestrian is upon the half of the roadway upon
which the vehicle is traveling, or when the pedestrian is
approaching so closely from the opposite half of the road
way as to be in danger, but no pedestrian shall suddenly
leave a curb or other place of safety and walk or run into
the path of a vehicle which is so close that it is impos
sible for the driver to yield. This provision shall not ap
78 —
ply under the conditions stated in subdivision (b) of sec
tion 58 (16) of this title.
(b) Whenever any vehicle is stopped at a marked cross
walk or at any unmarked crosswalk at an intersection to
permit a pedestrian to cross the roadway, the driver of
any other vehicle approaching from the rear shall not
overtake and pass such stopped vehicle.”
“ (16). Crossing at other than crosswalks.
(a) Every pedestrian crossing a roadway at any point
other than within a marked crosswalk or within an un
marked crosswalk at an intersection shall yield the right
of way to all vehicles upon the roadway.
(b) Any pedestrian crossing a roadway at a point where
a pedestrian tunnel or overhead pedestrian crossing has
been provided shall yield the right of way to all vehicles
upon the roadway.
(c) Between adjacent intersections at which traffic-con
trol signals are in operation pedestrians shall not cross at
any place except in a marked crosswalk.”
“ (18). Pedestrians to use right half of crosswalks.
Pedestrians shall move, whenever practicable, upon the
right half of crosswalks.”
“ (19). Pedestrians on roadways.
(a) Where sidewalks are provided it shall be unlawful
for any pedestrian to walk along and upon an adjacent
roadway.
(b) Where sidewalks are not provided any pedestrian
walking along and upon a highway shall when practi
— 79 —
cable walk only on the left side of the roadway or its
shoulder facing traffic which may approach from the
opposite direction.”
Code of Alabama of 1940.
Title 37.
“ Sec. 505. Abating Nuisances.
All cities and towns of this state shall have the power
to prevent injury or annoyances from anything dangerous
or offensive, or unwholesome and to cause all nuisances
to be abated and assess the cost of abating the same
against the person creating or maintaining the same.”
“ Sec. 506. Enjoining public nuisance.
Municipalities may maintain a bill in equity to enjoin
and abate any public nuisance, injurious to the health,
morals, comfort or welfare of the community, or any por
tion thereof.”
General City Code of the City of
Birmingham of 1944.
“ Sec. 1142. Streets and sidewalks to be kept open for
free passage.
Any person who shall obstruct any street or sidewalk
with any animal or vehicle, or with boxes or barrels, glass,
trash, rubbish or other like things, so as to obstruct the
free passage of persons on such streets or sidewalks, or
who shall assemble a crowd or hold a public meeting in
any street without a permit, shall, on conviction, be pun
ished as provided in section 4.
It shall be unlawful for any person or any number of
persons to so stand, loiter or walk upon any street or
80 —
sidewalk in the city as to obstruct free passage over, on
or along said street or sidewalk. It shall also be unlawful
for any person to stand or loiter upon any street or side
walk of the city after having been requested by any police
officer to move on.”
“ Sec. 1231. Obedience to police.
It shall be unlawful for any person to refuse or fail to
comply with any lawful order, signal or direction of a
police officer.”
“ Sec. 1357. Use of zones by pedestrians.
Pedestrians shall enter marked safety zones only at
street intersections by passing over that part of the
street which is included within the sidewalk lines pro
jected at right angles to the curb line and at right angles
to said safety zones, and in leaving safety zones such
pedestrians shall cross the street only at street intersec
tions by passing over that part of the street which is in
cluded within the line of the sidewalk projected at right
angles to the curb.”
Traffic Code of the City of Birmingham.
Article III.
“ Section 3-1. Authority of Police and Fire Department
Officials.
(a) It shall be the duty of the officers of the police
department or such officers as are assigned by the chief
of police to enforce all street traffic laws of this city and
all of the State vehicle laws applicable to street traffic
in this city.
— 81 —
(b) Officers of the police department or such officers as
are assigned by the chief of police are hereby authorized
to direct all traffic by voice, hand, or signal in conform
ance with traffic laws, provided that, in the event of a
fire or other emergency or to expedite traffic or to safe
guard pedestrians, officers of the police department may
direct traffic as conditions may require notwithstanding
the provisions of the traffic laws.”
“ Section 3-2. Required Obedience to Traffic Code.
It is a misdemeanor for any person to do any act for
bidden or fail to perform any act required in this code.”
“ Section 3-3. Obedience to Police and Fire Department
Officials.
No person shall willfully fail or refuse to comply with
any lawful order or direction of a police officer or fire
department official. ’ ’
Traffic Code of the City of Birmingham.
Article X.
“ Section 10-3. Pedestrians to Use Right Half of Cross
Walks.
Pedestrians shall move, whenever practicable, upon the
right half of cross walks.”
“ Section 10-4. Crossing at Right Angles.
No pedestrian shall cross a roadway at any place other
than by a route at right angles to the curb or by the
— 82 —
shortest route to the opposite curb except in a cross
walk. ’ ’
“ Section 10-5. When Pedestrian Shall Yield.
(a) Every pedestrian crossing a roadway at any point
other than within a marked cross walk or within an un
marked cross walk at an intersection shall yield the right-
of-way to all vehicles upon the roadway.”
“ Section 10-6. Prohibited Crossing.
(a) Between adjacent intersections at which traffic-
control signals are in operation, pedestrians shall not
cross at any place except in a cross walk.
(b) No pedestrian shall cross a roadway other than in
a cross walk in any business district.
(c) No pedestrian shall cross a roadway other than in
a cross walk upon any through street.”
“ Section 10-8. Pedestrians Walking Along Roadways.
(a) Where sidewalks are provided it shall be unlawful
for any pedestrian to walk along and upon an adjacent
roadway. ’ ’
General City Code of Birmingham of 1944.
“ Sec. 804. Punishable as a misdemeanor.
Any person who creates or causes, or who, being the
owner or agent in control, permits any nuisance or the ex
istence of anything likely to be prejudicial to the health
or comfort, or offensive to the senses of, ordinary citizens
on or about any lot, place or premises is guilty of a mis
demeanor, and any person who creates or causes any nui
sance or anything likely to be prejudicial to the health or
— 83 —
comfort or offensive to the senses of ordinary citizens upon
any lot, street or other public way or place is guilty of a
misdemeanor.”
“ Sec. 311. Disorderly conduct defined.
Any person who disturbs the peace of others by violent
or offensive conduct, . . . or any person who shall commit
any act or diversion causing or tending to a breach of the
peace, . . . ”
Editorial.
THE DALLAS MORNING NEWS
FRIDAY, OCTOBER 14, 1966
This editorial, entitled “ .Court Agrees to Face a Di
lemma” , after discussing the Church-State issue involved
in the Maryland atheists suit seeking to abolish the State’s
tax exemptions for church buildings, in which certiorari
was denied by this Honorable Court, went on to discuss the
Wyatt Tee Walker case. That part of the editorial deal
ing with such case is quoted verbatim as follows:
“ Although the refusal is significant (and quite wel
come), it is far less important than an accompanying
announcement that the court will review the contempt-
of-court convictions of the Rev. Martin Luther King
and seven other leaders of the 1963 race demonstra
tions- in Birmingham.
In deciding this case, the justices will be confronted
with a dilemma that makes the church-state question
as simple as Batman comics.
The Rev. King’s group inquired about obtaining a
parade permit prior to the 1963 Birmingham demon
stration and was referred by city officials to Police
Commissioner Eugene (Bull) Conner. Conner refused
to issue a permit.
— 84 —
Later, a state court issued an injunction prohibiting
King’s Southern Christian Leadership Conference
from parading without a permit. King announced
that his group would defy the ban. On Good Friday
and Easter he and other SCLC leaders led massive
marches in Birmingham. They were convicted of con
tempt of court, fined $50 each and sentenced to five
days in jail.
Explaining his defiance of the injunction, King said
at the time: ‘ We cannot in all good conscience obey
such an injunction which is an unjust, undemocratic
and unconstitutional misuse of the legal process.’
King’s explanation, of course, was a summation of
his controversial ‘ civil disobedience’ doctrine that con
tends a man is not obliged to obey a law he believes
to be unjust if he is willing to accept the punishment
for his violation of the law.
And herein lies the high court’s dilemma. King’s
case is based on his civil disobedience doctrine. In
defense of defying the injunction, he makes three
claims:
The city law requiring a parade permit was
unconstitutionally vague and discriminatorily ap
plied and, therefore, the parades conducted with
out a permit were not unlawful.
The injunction against parading without a per
mit was void because it infringed on constitu
tional rights of free speech and assembly. ‘ In all
good conscience we cannot obey unjust laws . . .
neither can we obey unjust use of the courts,’
King’s position argues.
And, finally, had King paused to litigate the
injunction his protest movement in Birmingham
would have lost its momentum.
85 —
In response, Birmingham officials cite a long string
of Supreme Court cases that hold a person must obey
a court’s injunction—even if it is unjust or erroneous
—and challenge it upon appeal.
To permit each person to decide for himself which
injunctions should be obeyed would lead to chaos, they
contend.
So the issue is squarely drawn, perhaps for the first
time, for the high tribunal. Simply put (perhaps, too
simply), it asks if the individual has the right to defy
a court order and, instead of appealing to a higher
court for relief from the order, take his appeal to the
streets.
Should the Supreme Court uphold the vital role of
our judicial system by ruling that King should have
obeyed the state court’s injunction until its legality
was decided by higher courts, a process that might
have taken weeks!
What if the justices find Birmingham’s parade law
unconstitutional!
What if they find the injunction was unconstitu
tional?
What if they find the injunction was issued merely
as a device to rob King’s drive of its momentum!
The questions are as numerous as they are perplex
ing. But there is only one issue: Does the individual
have the right to flaunt a court order, regardless of
whether the order is right or wrong!
There is only one single and obvious answer. And,
church-state relationship aside, God help our system
of rule by law if the court arrives at any other.”
98