Group Exhibit (Exhibit A)

    Ihtpreme (Eourt of tffp BUUb
October Term, 1963 

No..................

E dward E. F ields and N ational  S tates E ights P arty , 
and E obert L yons,

Appellants,

Cit y  of F airfield , a Municipal Corporation,
Appellee.

s
ON APPEAL FRO M  T H E  SU PRE M E  COURT OF T H E  STATE OF ALABAM A

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE AND BRIEF AMICUS CURIAE

J ack  Greenberg 
J ames M. N abrit , III

Counsel for NAACP Legal Defense 
and Educational Fund 
10 Columbus Circle 
New York, New York

S h irley  F ingerhood 
Of Counsel



I N D E X

PAGE

Motion for Leave to File Brief Amicus Curiae............. 1

Brief Amicus Curiae .......................................................... 5

Conclusion  ..................................... ...............................................  12

Table of Cases

Bantam Books v. Sullivan, 372 U. S. 5 8 ........................  6
Bates v. City of Little Bock, 361 U. S. 516..... ...............  6
Buchanan v. Warley, 245 U. S. 60 .......................... .......  6

Cantwell v. Connecticut, 310 U. S. 296 ..........................  6

Edwards v. South Carolina, 372 U. S. 229 ............... .....  3, 5
Ex Parte Fisk, 113 U. S. 713............................................  10
Ex Parte Rowland, 104 U. S. 604 ....................................  10
Ex Parte Sawyer, 124 U. S. 200 ......................................  10

Fields v. City of Fairfield, 273 Ala. 588, 143 So. 2d 177.. 4

Garner v. Louisiana, 368 U. S. 157..................................  2
George v. Clemmons, 373 U. S. 241 ................................  7, 8
In Be Green, 369 U. S. 689 ................................................  8

Johnson v. Virginia, 373 U. S. 6 1 ....................................  7, 8

Lovell v. Griffin, 303 U. S. 444 .............................. ...........  6

Marcus v. Property Search Warrant, 367 U. S. 717.....  5

NAACP v. Alabama, 357 U. S. 449 ..................................  6
NAACP v. Alabama, 360 U. S. 240 ........ .......................... 3



PAGE

NAACP v. Button, 371 U. S. 415....................................  6
Near v. Minnesota, 283 U. S. 697  .................................  6
Niemotko v. Maryland, 340 U. S. 268 ..............................  6

Peterson v. City of Greenville, 373 U. S. 244 .................  3

Rosenberg v. United States, 346 U. S. 273 ..................... 10

Schneider v. State, 308 U. S. 147 ............. .........................  6
Shelley v. Kraemer, 334 U. S. 1 _____ _________ ____  6
Staub v. Baxley, 355 U. S. 313..........................................  6

Talley v. California, 362 U. S. 6 0 ....................................  5
Taylor v. Louisiana, 370 U. S. 154  ................................  3
Terminiello v. Chicago, 337 U. S. 1 ................................  5
Thomas v. Collins, 323 U. S. 516.................................... 6, 7, 9

United Gas, Coke and Chemical Workers of America 
v. Wisconsin Employment Relations Board, 340
U. S. 383 ...........................................................................  8, 9

United States v. Shipp, 203 U. S. 563 .......................... 10,11
United States v. United Mine Workers of America, 330 

U. S. 258 ............................................................7, 8, 9,10,11

Worden v. Searls, 121 U. S. 1 4 ........................................  10

Other Authorities

Note, The Void for Vagueness Doctrine in the Supreme 
Court, 109 U. Pa. L. Rev. 6 7 ........................................  6

ii



I s  THE

Bnpvmz Court of the Imteh States
October Term, 1963 

No..................

E dward E. F ields and N ational S tates E ights P arty , 
and E obert L yons,

Appellants,

City  of F airfield , a Municipal Corporation,
Appellee.

ON APPEAL FROM  T H E  SU PRE M E  COURT OF T H E  STATE OF ALABAM A

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE

Petitioner, NAACP Legal Defense and Educational 
Fund, Inc., respectfully moves this Court for permission 
to file the attached brief amicus curiae and as reasons 
therefor sets forth the following:

1. Petitioner is a New York corporation organized for 
the purpose, among other things, of securing equality be­
fore the law, without regard to race, for all citizens. In 
this connection members of petitioner’s staff often have 
represented Negro citizens before various courts, including 
this Court, on claims that they have been denied equal 
protection of the laws, due process of law, and other rights 
secured by the constitution and laws of the United States. 
Moreover, members of petitioner’s staff have represented 
citizens who have been denied First Amendment rights 
while attempting to secure equal treatment within society 
and before the law without regard to race.



2

2. It goes without saying that petitioner abhors the 
anti-Negro, anti-Semitic views and political program of 
Edward R. Fields and the National States Rights Party. 
They have opposed petitioner’s program vigorously.1 They 
embrace a policy of racism diametrically opposed to the 
fundamental principles upon which our nation was founded. 
At the same time petitioner is compelled to recognize that 
if this particular conviction against Fields is upheld, a 
precedent in the Alabama courts will be affirmed, and sub­
stance will be given to similar proceedings in other courts 
directed against proponents of equality, which will deny 
rights secured by the Fourteenth Amendment and seriously 
impede the movement for equal rights now current in the 
nation. While petitioner believes that all lawful measures 
should be taken against illegal conduct by Fields and his 
party, it does not believe that the state may proceed against 
him in a way which denies First Amendment rights. Diffi­
cult as it may be to take this position in this case,1 2 3 peti­
tioner believes that First Amendment rights must be vig­
orously guarded if the proponents of equality are to tri­
umph. Injunctions cannot restrain political expression, and 
contempt penalties for the violation of such injunctions 
must not be sustained or the right to petition for equal 
protection of the laws will be violated.

3. Advocates of racial equality have been the victims 
of innumerable legal proceedings of various sorts through­
out the South. See, e.g. Garner v. Louisiana/  Peterson v.

1 See New York Times, September 24, 1963, p. 1, col. 1.
2 But see Gellhorn, American Bights 50 (1960): “ [Cjonstitu- 

tional issues have to be fought out on their own merits, rather 
than on the merits of the individual in connection with whom the 
issue may have arisen.”

3 368 U. S. 157.



3

City of Greenville,* Edwards v. South Carolina/  Taylor 
v. Louisiana/  NAACP  v. Alabama.4 5 6 7 8 All of these efforts 
to use the criminal law, the common law and various other 
powers of government to stifle free expression on behalf 
of racial equality have failed. Now it is claimed that by 
the device of imposing an injunction, First Amendment 
expression on behalf of racial equality can be stifled, at least 
until ultimate adjudication of the underlying issues in the 
case, which may be a matter of years. See NAACP v. 
Alabama. s Pursuant to this new tactic various govern­
mental bodies have obtained injunctions against demonstra­
tions on behalf of racial equality throughout the South.9

Indeed, within the State of Alabama, a conviction for 
contempt for having violated a temporary restraining order 
obtained without notice recently was entered against Wyatt 
T. Walker, Dr. Martin Luther King and others in the City

4 373 U. S. 244.
5 372 U. S. 229.
6 370 U. S. 154.
7 360 U. S. 240.
8 360 U. S. 240.
9 Alabama v. Robinson, Circuit Court of Etowah County, Ala­

bama, amended temporary injunction issued June 18, 1963; Ala­
bama ex rel. Flowers v. Zellner, Circuit Court of DeKalb County, 
Alabama, May 7, 1963; C.O.R.E. v. Douglas, 318 F. 2d 95, in­
junction vacated 5th Circuit, May 13, 1963; Kelley v. Page, M. D. 
Ga., July 19, 1963, injunction vacated, 5th Cir., July 24, 1963; 
City of Jackson v. Salter, Chancery Court of the First Judicial 
District of Hinds County, Mississippi, No. 63,429, June 6, 1963; 
Porzio v. Williams, Superior Court of Chatham County, Georgia, 
June 19, 1963; City of Clarksdale v. Aaron Henry et al., Coahoma 
County Court, Mississippi, July, 1963; City Council of Charles­
ton v. NAACP et al., Court of Common Pleas, Charleston, South 
Carolina, temporary restraining order entered July 26, 1963; Mes- 
selman Theatres v. McLean et al., Superior Court of Cumberland 
County, North Carolina, temporary restraining order entered May 
29, 1963; Knight v. NAACP et al., County Court, Pine Bluff, 
Arkansas, No. 34,703, temporary restraining order entered August 
13,1963.



4

of Birmingham, on the authority of Fields v. City of Fair- 
field, 273 Ala. 588, 143 So. 2d 177.10

4. Because of this dimension of the case, which may not 
adequately appear in argument on behalf of Dr. Fields and 
his party, and because of the involvement of the NAACP 
Legal Defense and Educational Fund in behalf of the de­
fendants in most of the cases cited above, we respectfully 
submit that the views of the Fund on this issue may be of 
interest to the Court.

5. Petitioner has requested permission of appellants and 
appellee to file this brief amicus curiae; these requests have 
been denied.

W hekefoee petition er p rays that the attached b rie f 
amicus curiae be perm itted  to be filed w ith this court.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit, III

Counsel for NAACP Legal Defense 
and Educational Fund 
10 Columbus Circle 
New York, New York

S h irley  F ingerhood 
Of Counsel

10p ity  of Birmingham v. Walker et al., Circuit Court, Tenth 
Judicial Circuit, Alabama, contempt conviction decreed April 26, 
1963; brief for respondent City of Birmingham, Supreme Court 
of Alabama, pp. 21-24.



I n  the

§>uprmr Court of %  Imtrft
October Term, 1963 

No..................

E dward E . F ields and N ational S tates E ights P arty , 
and R obert L yons ,

Appellants,

City  oe F a i r f i e l d , a Municipal Corporation,
Appellee.

ON APPEAL FROM  T H E  SU PRE M E  COURT OF T H E  STATE OF ALABAM A

BRIEF AMICUS CURIAE

The interest of this amicus is set forth in the above 
motion for leave to file brief amicus curiae.

Amicus adopts the statement of facts as set forth in 
appellants’ brief.

1. Upholding appellants’ conviction, the Alabama Su­
preme Court ruled in effect that punishment may be im­
posed for violation of a judicial order restraining the 
distribution of pamphlets and the holding of a political 
meeting. But punishment cannot be inflicted for the peace­
ful exercise of First Amendment rights. Edwards v. South 
Carolina, 372 U. S. 229; Talley v. California, 362 U. S. 60; 
Terminiello v. Chicago, 337 U. S. 1. It may, of course, be 
imposed for certain activities excluded from First Amend­
ment protection although they are closely connected with 
speech. But a state is not free to adopt procedures “with­
out regard to the possible consequences for constitutionally 
protected speech,” Marcus v. Property Search Warrant, 
367 U. S. 717, 731, and for that reason the power to impose



6

a prior restraint upon expression has unquestionably been 
denied. Near v. Minnesota, 283 U. S. 697; cf. Lovell v. 
Griffin, 303 IT. S. 444; Schneider v. State, 308 IT. S. 147; 
Cantwell v. Connecticut, 310 U. S. 296, 304-307; Niemot.ko 
v. Maryland, 340 U. S. 268; Staub v. Baxley, 355 U. S. 313. 
Indeed, the reason that vague statutes are unconstitutional 
when applied to First Amendment rights is that their very 
existence has an inhibitory effect upon expression and, 
therefore, in that sense they constitute a prior restraint. 
See NAACP v. Button, 371 IT. S. 415; cf. Bantam Books v. 
Sullivan, 372 U. S. 58. Note, The Void for Vagueness Doc­
trine in the Supreme Court, 109 IT. Pa. L. Rev. 67.

The question on this appeal is whether a state may impose 
a criminal penalty for the exercise of free speech by adopt­
ing a rule of procedure prohibiting collateral attacks on 
injunctions restraining First Amendment rights. If, as the 
court below ruled, Fields was required to obey the injunc­
tion of the Fairfield Circuit Court until its validity had been 
adjudicated or incur certain punishment, then by utilizing 
the proscribed device of enjoining expression, a state may 
achieve a result otherwise prohibited—criminal punishment 
of peaceful expression.

We believe that this Court has made clear its disapproval 
of rules so destructive of constitutional rights. Manifestly 
no court has the power to achieve by injunction a result 
which government may not constitutionally effect. Compare 
Shelley v. Kraemer, 334 IT. S. 1, with Buchanan v. Warley, 
245 IT. S. 60; and compare NAACP  v. Alabama, 357 IT. 8. 
449 with Bates v. City of Little Rock, 361 IT. S. 516. “ It is 
not of moment that the State has here acted solely through 
its judicial branch, for whether legislative or judicial, it is 
still the application of state power which we are asked to 
scrutinize.” NAACP v. Alabama, supra, at p. 462.

In Thomas v. Collins, 323 U. 8. 516, the Court stated at 
p .540:



7

If the exercise of the rights of free speech cannot 
be made a crime, we do not think this can be accom­
plished by the device of requiring previous registration 
as a condition of exercising them and making such a 
condition the foundation for restraining in advance 
their exercise and for imposing a penalty for violating 
such a restraining order. If one vrho solicits support 
for the cause of labor may be required to register as 
a condition to the exercise of his right to make a public 
speech, so may he who seeks to rally support for any 
social, business, religious or political cause. We think 
a requirement that one must register before he under­
takes to make a public speech to enlist support for a 
lawful movement is quite incompatible with the re­
quirements of the First Amendment.

2. As authority for its position that the question of con­
stitutionality of a judicial order may not be adjudicated on 
an appeal from a judgment of conviction for contempt, the 
court below relied on United States v. United Mine Workers 
of America, 330 U. S. 258. In that case a majority of the 
Court held that the injunction was! lawful/because they 
found that the Norris-LaGuardia Act did not apply. (In 
this case, amicus contends that the injunction is unlawful.) 
The opinion of the Court and that of Mr. Justice Frank­
furter concurring in the judgment also stated that the 
validity of a criminal conviction for contempt would not 
be reversed on the ground that the underlying order was 
invalid.

However, in Mine Workers the effect on constitutional 
rights of denying collateral attack was not in issue. Where 
constitutional rights are affected, the Supreme Court of 
the United States has consistently reversed criminal con­
tempt convictions for disobedience of judicial orders. 
Johnson v. Virginia, 373 U. S. 61; George v. Clemmons, 
373 U. S. 241; Thomas v. Collins, supra.
ft**



8

In Johnson v. Virginia, and George v. Clemmons, the 
orders underlying the contempt convictions were held to 
violate the equal protection clause of the Fourteenth 
Amendment. In George v. Clemmons, 373 U. S. 241, the 
State argued unsuccessfully that even if the state court’s 
order of segregated seating in the courtroom was illegal, 
Negroes had no right to violate the order, but instead were 
required to obey it pending a challenge of its legality in 
other proceedings. U. S. Law Week, April 30, 1963, 
p. 3355. In United Gas, Coke and Chemical Workers 
of America v. Wisconsin Employment Relations Board, 340 
U. S. 383, the injunction which the union disobeyed violated 
constitutional prohibition against state interference in a 
field pre-empted by federal legislation. Cf. In Re Green, 
369 U. S. 689.

Moreover, the opinion of the court in Mine Workers 
noted that “a different result would follow were the ques- 

LF tion of jurisdiction frivolous and not substantial.” 330 
U. S. at p. 293. That exception was described by Mr. Justice 

A \.fs -.Frankfurter as follows:

[A]n obvious limitation upon a court cannot be cir­
cumvented by a frivolous inquiry into the existence of 
a power that has unquestionably been withheld. . . .  In 
such a case, a judge would not be acting as a court. 
He would be a pretender to, not a wielder of, judicial 
power. 330 U. S. at p. 310.

As Fields had a clear First Amendment right here, the 
court’s inquiry into its power to issue a temporary restrain­
ing order was frivolous.1 And we do not believe that the

1 As the inquiry into the court’s power was ex parte, Fields had 
no opportunity to contest the jurisdiction of the court prior to 
his trial for contempt. If collateral attack on the order is not 
permitted at the trial for contempt, the conviction may violate 
due process requirements. In Re Green, supra, where the Supreme 
Court reversed a conviction for contempt of an ex parte temporary 
restraining order as a denial of due process.



9

difficulty inherent in determining the issue of the validity 
of the injunction is relevant to the existence of a duty to 
obey pending that determination, as was suggested in 'Mine 
Workers. (In Thomas v. Collins, supra and United Gas, 
Coke and Chemical Workers v. Wisconsin Employment 
Relations Board, supra, the issues were extremely com­
plicated.) Rather, the sole question is whether the order 
is required to be reversed because of constitutional in­
firmity.

Constitutional rights are “present rights. . . . The basic 
guarantees of our constitution are warrants for the here 
and now, and unless there is an overwhelmingly compelling 
reason they are to be promptly fulfilled.” Watson v. City 
of Memphis, 373 U. S. 526 at p. 533. There is no overwhelm­
ingly compelling reason which warrants delay of the exer­
cise of the First Amendment rights pending judicial con­
sideration and reversal of an unconstitutional order. The 
reason suggested in Mine Workers, respect for judicial 
process, has “ a seductive attractiveness,” Murphy, J. dis­
senting in U. 8. v. United Mine Workers of America, supra, 
at p. 340, but is not compelling in the sensitive area of 
First and Fourteenth Amendment rights on close examina­
tion.

If the injunction were valid and the judgment of contempt 
were properly imposed the judiciary would be vindicated 
and appellant would be required to serve his sentence. But, 
it is argued that even an invalid temporary restraining 
order must be obeyed to vindicate respect for the judiciary. 
If the prior restraint is. as we submit, unconstitutional, 
then the courts are not denied respect by reversing a con­
tempt conviction any more than when any other conviction 
is reversed, as for a. faulty indictment or charge to the jury 
or as when a statute or proceeding under the common law 
is held to violate similar rights. The fact is that the ulti-



10

mate and underlying respect for the law demands, under 
our system, that all men, including those sitting as judges, 
act within the limitations of the Constitution of the United 
States.

Prior to Mine Workers this Court apparently believed 
that respect for the courts would be maintained if it fol­
lowed the rule that when a court acted without power its 
orders were regarded as a nullity and no penalty could be 
imposed for disregard of them. In Ex Parte Sawyer, 124 
U. S. 200, a contempt conviction for disobeying a restrain­
ing order granted in direct contravention of a federal 
statute prohibiting injunctions of state court proceedings 
was reversed. The Court held that the statute’s restriction 
nullified the injunction.

In Ex Parte Fisk, 113 U. S. 713, a contempt conviction 
was reversed because the order which was disobeyed was 
in a category which the court could not issue. No penalty 
for disobedience was imposed in Ex Parte Rowland, 104 
U. S. 604, because the writ of mandamus exceeded the legal 
limitation permissible for such orders.

It was only where the court had the power to make the 
order that a contempt conviction was upheld. In United 
States v. Shipp, 203 U. S. 563, the case which was relied 
upon in the Mine Workers opinions,2 the Court had the 
power to issue the stay order which was violated. It so 
stated at p. 573. There was no doubt then that the Supreme 
Court has the power to issue a stay pending its determina­
tion of the merits of an appeal. There is no doubt today. 
“How could there be doubt about a power that has existed 
uninterruptedly ever since Congress gave it by the Act of 
September 24, 1789? Section 14 of the Judiciary Act, 1 
Stat. 73, 81-82.” Frankfurter, J., dissenting in Rosenberg 
v. United States, 346 U. S. 273, 302 fn. 1.

2 Worden v. S earls, 121 U. S. 14, also cited in Mine Workers, 
was not a criminal contempt case.



11

Iii Shipp, Mr. Justice Holmes held that the question of 
whether or not there was a Federal question raised on 
an appeal from a denial of habeas corpus was irrelevant to 
the question of the Court’s authority to stay execution pend­
ing its decision to hear the appeal. The Court’s authority 
to issue stays pending appeal might indeed have been used 
erroneously where the appeal was without merit. However, 
a decision dismissing the appeal would east no doubt upon 
the authority of the Court to issue the stay or vitiate the 
authority of the Court to issue stay orders in the future.

Unlike Shipp, in this appeal the constitutional question 
is directed to the authority of the Court to issue the in­
junction underlying the contempt conviction. If, as we con­
tend, the Fourteenth Amendment to the United States Con­
stitution prohibited the issuance of the injunction, the in­
junction was a nullity and of no effect and the State may 
not impose punishment for its violation.

Those pressing for Fourteenth Amendment rights may 
well risk punishment if they mistake the area of consti­
tutional protection; they should not incur punishment when 
their rights are vindicated.

If the decision of the lower courts in this case is not 
reversed, we will see the serious consequences of which 
Mr. Justice Rutledge warned in his dissent in Mine 
W orkers:

Thus, the constitutional rights of free speech and free 
assembly could be brought to naught and censorship 
established widely over those areas merely by applying 
such a rule to every case presenting a substantial 
question concerning the exercise of those rights. This 
Court has refused to countenance a view so destruc­
tive of the most fundamental liberties. Thomas v. 
Collins, 323 U. S. 516, 89 L. ed. 430, 65 S. Ct. 315.



12

These and other constitutional rights would be nulli­
fied by the force of invalid orders issued in flat viola­
tion of the constitutional provisions securing them, and 
void for that reason. 330 U. S. at p. 352.

CONCLUSION

If all that were involved here were the merits of Fields’s 
obnoxious notions, the result would be simple. But prin­
ciples of constitutional law which bear upon his contempt 
conviction transcend the particulars of his case. As shown 
in the above Motion for leave to file this brief amicus curiae, 
far more common than an injunctive suit against a Fields 
are the proceedings being conducted throughout the South 
against proponents of equality. See cases cited supra, 
p. 3. The freedom of speech which petitioners invoke 
in those cases is the same which is at issue here. When 
Fields breaks the law he should be prosecuted promptly 
and vigorously. But the great protections of the Consti­
tution which redound to all should not be scrapped in the 
course of keeping his conduct within lawful bounds.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit, III

Counsel for NAACP Legal Defense 
and Educational Fund 
10 Columbus Circle 
New York, New’ York

S hirley  F ingerhood 
Of Counsel



38