Walker v. City of Birmingham Transcript of Proceedings

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TRANSCRIPT OF PROCEEDINGS
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WYATT TEE- WAHCSa, MAlfTIILLOTHER KING, J ,..,, ) 
RALPH ABERIffiTIfY, A, D . KING, J / ^ .  HAYES, ) 

L . FISHER, F . L . SHUTTLESWOS'IH AND )
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No. 249
)

CITY CF BIRMINGHAM, a Municipal Corporation) 
of the State of

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■ -Pages, -i ,thrip

Respondent. ):

'Washington, D. G. 
March 13 h 14, 1967

.MUM]

HOOVER REPORTING COMPANY, INC.
Official Reporters

1 ■ ^

Washington, D. C.
546-6666

Baltimore, Md. 
SAratoga 7-1331



IK THE SUPREME COURT OP THE UNITED STATES
WYATT 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 . )

)
v » j Mo. 249

)
CITY OF BIRMINGHAM, a Municipal Corporation } 
of the State of Alabama. )

)Respondent. )

Washington, D. C. 
Monday, March 13, 1967

The above-entitled matter came on for argument a

2 :10 o'clock, p.m.
BEFORE;

EARL WARREN, Chief Justice of the United States
HUGO L, BLACK, Associate Justice
WILLIAM 0. DOUGLAS, Associate Justice
TOM C. CLARK, Associate Justice
JOHN M. HARLAN, Associate Justice
WILLIAM J. BRENNAN, JR., Associate Justice
POTTER STEWART, Associate Justice
BYRON H. WHITE. Associate Justice
ABE FORTAS, Associate Justice

APPEARANCES:
JACK GREENBERG, ESQ., 10 Columbus Circle,

New York, New York, on behalf of Petitioners

■ LOUIS P. CLAIBORNE, ESQ., Assistant to the 
Solicitor General, Department of Justice, 
Washington, D. c„, on behalf of The United 
States as Amicus Curiae

EARL MeBEE, ESQ., and J. M. BRECKENRIDGE, ESQ., 
600 City Hall, Birmingham, Alabama, on behalf 
of Respondent



ORAL ARGUMENT OP:

Jack Greenberg, Esq«,
On behalf of Petitioners

March 14, 1967



Cf

3

MR. CHIEF JUSTICE WARREN: Number 249, Wyatt 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.

THE CLERK: Counsel are present,
MR; CHIEF JUSTICE WARREN: Mr. Greenberg,

ORAL ARGUMENT OF JACK GREENBERG, ESQ., ON BEHALF
OF PETITIONERS

MR. GREENBERG: Mr, Chief Justice and may it please the
Court, this case is here on petition for certiorari from the 
Supreme Court of Alabama. It involves a wide range of consti­
tutional issues which include the following questions: First, the
constitutional validity of*parade permit ordinance; second, the 
constitutionality of the administration of that ordinance; and 
thejjl question of the admissibility of evidence to establish the 
mode of this administration; the validity of an injunction which 
embodies that ordinance in toto and requires parties to refrain 
from a lengthy enumerated series of lawful acts; the applica­
bility of the so-called Mine Workers rule, that is the question 
of whether one may litigate first in the Alabama courts and second I 
in this Court; the validity of the permit ordinance and the 
validity of the Injunction and the action for contempt; the

constitutionality of a finding of contempt based upon statements



>4

by petitioners expressing outrage at the issuance of the injunc­
tion ; and the validity of the finding of contempt against certain 
of the petitioners on whom the paper had not been served,

MR, JUSTICE HARLAN*. Which one of those questions do 
you submit is the master question in this case?

MR, GREENBERG: We would submit the master question in
this case is the constitutionality of the permit ordinance, be­
cause I would say thereby the injunction falls, and because of 
the nature of the First Amendment question involved, the Mine 

Workers rule does not apply. There are reasons in the State lav; 
■why the Mine Workers rule does not apply also. But I was about 

to say, Mr. Justice Harlan, that while it would be impossible to 
discuss in 30 minutes all of these issues, all of which are rather 
serious, I plan to focus upon but one or two of them. And in view 
of the fact that the United States in an amicus brief has 
addressed its attention exclusively to the so-called Mine Workers 
problem and the position in their brief is the same as ours, I 
do not plan to discuss that question, although I would, of course, 
be happy to answer questions concerning it If the Court has any.

MR. JUSTICE FORTAS: May I ask you again, if you do not
mind, as I remember the government's brief, they said that —  I 
don't xvant to misrepresent their view, but I think, I have the 
Impression they 3ald that this case should be regarded as an 
exception to the Mine Workers doctrine. Would you phrase it that

way?



/
5

MR. GREENBERG: I might. I would say that the Mine
Workers doctrine ought not to be and was never intended to apply 
to a situation like this.

MR, JUSTICE FORTAS: Because of the First Amendment?

MR. GREENBERG: Not only because of the First Amendment,
but because of the circumstances in which it arose because of the 
nature of the prior restraint, of the injunction having been 
issued just within a very brief period of time before the march 
was supposed to commence.

MR. JUSTICE FORTAS: You mean it would be unfair?
You mean it would be unfair to invoke the Mine Workers doctrine 
here?

As I understand it, the governments brief -- and the 
reason I ask you about the government's brief is that it seems to 
indicate that there is an identity of views —  but as I under­

stand, the government's brief is to the effect that if you apply 
Mine Workers here, then the contempt order is valid and you have to 
work out some kind of an exception to the Mine Workers j and this 
is not the type of injunction or not the type of situation in 
which Mine Workers should apply.

MR, GREENBERG: Mr, Justice Fortas, I think that we
face -- we might just posit two types of situations, one in which 
there is merely a permit ordinance on the books and there is an 
interest in regularity of enforcement, and interest in perhaps 

applying and attempting to obtain a permit under that ordinance,*



6

yet this Court has recognized in numerous cases that that 
ordinance is unconstitutional on its face, or as applied when they 

: ̂ violated with impunity. On the other hand, we might posit the 
situation in which we might assume injunctions ought to be obeyed 
until they are litigated and disposed of on the injunctions, 

rather than on the contempt.
MR, JUSTICE FORTAS: That is what Mine Workers says.
MR, GREENBERG: Yes, I would say this is*hybrid 

situation in which the- injunction embodies in toto the ordinance 

and merely transfers for the most part its enforcement from 
ordinary criminal misdemeanor1 proceedings to contempt proceedings, 
and we would argue that it falls in the permit ordinance type of 
category of cases rather than the other. If you want to call it 
"exception, 11 that is possible,

MR, JUSTICE FORTAS: I don't want to call it anything,

MR. GREENBERG: Yes, If one would, yes.
We also have an argument which we would submit is 

correct, and that is that under Alabama law, this is the first
f)Oh/-&—time in the scope of .reviewing that review and contempt -tea been 

so narrowly interpreted, In the case of Fields v. The City.of 
Fairfield, which came to this Court and was reversed on no 
evidence grounds, there was a question of the validity of the 
permit ordinance involved. The Alabama court appraised the 
validity of the injunction order and applied the validity of the 

injunctive order, passing upon the merits as part of one of the



(

four grounds for assessing the validity of contempt, one of which 
was whether the injunction was on its face void. It held it was 
not void and assumed contempt.

We say this is exactly in this category and nonfederal 
ground confirmance was given, and I hope to come to that in a 

few moments,
MR, JUSTICE HARLAN: I am sorry, you are going to stand

on the government’s brief?
MR, GREENBERG: On our brief as well, Mr, Justice

Harlan. I will argue it if I get to it.
The only reason, I was trying to save the time of the 

Court. I do believe in a summary argument there are a number of 

important things I had to say.
MR. JUSTICE HARLAN: It seems to me this is a threshold

thing that you have got to get over, State grounds.
MR. GREENBERG: I don't believe this is an inadequate

s tatement.
MR, JUSTICE HARLAN: If it is an inadequate statement,

everything else you say Is irrelevant. Therefore, I would suppose 
you would address yourself to first things first,

MR. GREENBERG: Well, Mr. Justice Harlan, let me
address myself to it then,

I think in order to understand the so-called Mine 
Workers doctrine and the other issues involved in this case, It Is

important to see the context In which this case arose.



8
The First Amendment rights, prior restraint questions, 

all the questions involved in this case turn on the context of the 
situation, and enforcement of the ordinance, etc. These issues 
arose out of incidents that occurred four years ago, known as the 
Birmingham Demonstrations in 1963,.which are acknowledged to be 
impetus to passage of the Civil Rights Act of 1964. Birmingham 
at that time was virtually a totally segregated community. Wine 
years after this Court's decision in Brown v. Board of Education, 
there had been absolutely no school desegregation. Fifteen years 
after this Court's decision^ pursuant to State policy, the 
University of Alabama remained segregated.

This Court's decision in Gober v, Birmingham reflects 
the unconstitutionality of the racial segregation ordinance within 

the city of Birmingham. ■
The ordinary channel which democratic change might 

be effected, that :1s toy exercising the ballot, only 11 percent of 
Birmingham Negroes were ready to vote. And after passage of the 
1965 Civil Rights Act, the rather low degree of Negro registra­
tion was confirmed by the fact that Federal registrars were sent 

into Birmingham.
Vie submit that the First Amendment - dalir In th±'s,,“casw't— 

with regard to the First Amendment claim in this case, nothing is 
of greater testimonial to the wisdom and utility of the First 
Amendment to a mechanism for effecting change democratically than 

the facttthe exercise of speech, assembly, and other First



Q
.Amendment rights in Birmingham at this time informed the 
conscience of the nation and helped change this situation, not 
only in Birmingham, but indeed in other parts of the country.
Those First Amendment rights were not exercised without opposition. 
Numerous decisions of this Court indicate, and as a report of the 
United States Civil Rights Commission indicates, which is quoted 
at some length in our brief- stated: Street demonstrations were

regularly suppressed and the police followed that policy and they 
were usually supported by local prosecutors and courts.

The particular facts under which this case arose were 
as follows: These demonstrations were part of a series that began
in early April, Birmingham had a parade permit ordinance, set 
forth on page 4 of our brief, which ordinance, was embodied in 

toto in the injunction in this case, and it stated: "The
Commission shall grant a written permit for such parade, proces­
sion or other public demonstration ... unless in its judgement the 
public welfare, peace, safety, health, decency, good order, morals, 
or convenience require that it be refused,”

One part of our argument, we submit, is*"this parade 
permit ordinance is unconstitutional, and indeed the Alabama.
Court of Appeals, in a case arising out of this very march that 
is involved in this case and involving one of the very petition­
ers here, held that ordinance unconstitutional.

MR, JUSTICE FORTA.S: I don't get this. All you are

asking us to do, if I correctly understand your brief -- and I



10

call your attention to page 31 —  is you are complaining that you 
were denied an opportunity to offer proof in support of a Federal 

constitutional defense. Is that right?
MR. GREENBERG; That is not all we are doing.
MR. JUSTICE FORTAS: What we would do, if I understand

your presentation, is to remand this case.
MR, GREENBERG; No, we make a series of arguments.
MR. JUSTICE FORTAS; I would take it we would remand 

the case, but send it back so there will be a hearing and evidence 
would be received, which you claim was improperly rejected.

MR. GREENBERG; That is merely one of a series of 
arguments. We also argue that the ordinance is unconstitutional 
on its face, that the injunction is unconstitutional on its face.

MR. JUSTICE FORTAS: What do you want us to do?
MR, GREENBERG: We would like you to reverse the con­

victions of contempt on the ground that they are based on the 
enforcement of an unconstitutional ordinance embodied in an un­

constitutional injunction.
MR. JUSTICE FORTAS: You say regardless of any

evidentiary basis. But you have just been discussing the 

evidentiary basis.
MR. GREENBERG: This is an alternative argument, this

argument on page 31 you are referring to, Mr, Justice Fortas.
Now, on April 3rd, a representative of the petitioners 

went to City Hall to inquire about getting a permit, and she said



11
she went to Mr. Connor's office --- this is "Bull" Connor, who is 
the Commissioner of Public Safety -- to inquire about getting a 
permit or to inquire about how a permit might be obtained. She 
said, "We came to apply, to see about getting a permit for picket­
ing, parading and demonstrating," And he replied, "No, you will 
not get a permit in Birmingham to picket. I will 'picket* you 
over to the City Jail." And she said he repeated that twice. He 
did not inquire about the names, dates, places, numbers, or any­
thing else which might be.pertinent to a valid enforcement of a 
permit ordinance.

Several days later, some of the petitioners sent a 

telegram to the Commissioner and asked him whether they could have 
a permit, and he replied back and said, "1 can't give you one.
You must refer this to the entire Commission,"

MR, JUSTICE STEWART: That, of course, is what the
ordinance says, does it not?

MR. GREENBERG: Yes, the ordinance says that. But at
the trial, there was evidence to the fact that the permits were 
issued by the City Clerk on the recommendation of the Traffic 
Commission, which was under the Police Commissioner, and all those 
proffers were refused.

MR. JUSTICE STEWART: Well, the ordinance does say the
license must be secured from the Commission.

MR, GREENBERG: That is right.

MR. JUSTICE STEWART: The telegram also informed you



12

MR. GREENBERG: That is correct,
MR, JUSTICE STEWART: So that whatever might be done in

the case, you were told by words of the ordinance and specific 
language of the telegram that your application for license had 
to be made to the Commission?

MR, GREENBERG: That is correct. But if the evidence
had been all owed, it would have developed, as the record shows,' 
in fact this ordinance was enforced in quite a different way] that 
the City Commission in fact had never granted a parade permit, 

that the parade permits were granted by the City Clerk on the 
recommendation of a subordinate, Commissioner Connor, and that 
would make quite another story if that were established In the 
record,

MR, JUSTICE STEWART: Except the telegram told you the 
entire Commission had to grant it, and that is what the ordinance 
says,

MR* GREENBERG: We are trying to prove that was not
true, and that was not permitted] that the Commissioner was send- 
ing these petitioners -torvâ  procedure which all other citizens of 
Birmingham did not have to follow, and that was discriminatory
enforcement.

In any event --

MR, JUSTICE WHITE: That doesn't make the statutory

Injunction bad on its face?

that the license had to be secured from the Commission,



13
MR, GREENBERG: -Well, we would submit that it makes it

bad on the record* though* Mr, Justice White* because the in­
junction remitted •«£©■ to a man who kicked one of the representa­
tives or petitioners out of the door and sent her on a run 
around to follow a procedure that no one else had followed or 
had to follow.

MR. JUSTICE FORTAS: That doesnH make it bad on the
record* because the record is not here. You said you had a 
proffer.

MR. GREENBERG: That is correct.
MR. JUSTICE FORTAS: That is a very different matter.
MR, GREENBERG: As to the-aspect of the case that

relates to the proffer* there would have to be a hearing on that. 
As to the aspect of the case that relates to the constitutional­
ity of the ordinance* we submit if the Court finds the. ordinance 
is unconstitutional* conviction should be reversed,

MR. JUSTICE WHITE: Unconstitutional on its face?
MR. GREENBERG: On its face. The ordinance* we sub­

mit* is very much like* almost literally like ordinances estab­
lished in the past.

MR. JUSTICE WHITE: What If the injunction hearing*

though* or the contempt hearing -- by that time you know that your 
conduct is:the kind of conduct that the ordinance and the In­
junction was intended to prescribe, I mean* vagueness is out of

it. Maybe overbreadth isn't* but vagueness is out of it.



this, Mr. Justice White, because one of the things about this 
record that is rather clear is that there was an effort to conduct 
all of these walks on the sidewalk with the thought it would not 
come under the ordinance, and the Alabama Court of Appeals dealing 
with this incident, in a criminal case has held that certainly 

this doesn't apply to the sidewalk.
ME*JUSTICE WHITE: This seems to me to go to Mr.

Justice Fortas1 question about maybe evidentiary records are 

needed.
MR. GREENBERG: Well, if the Court were not to agree

with us on the question of the vagueness of the injunction and 
the ordinance, then certainly the convictions could not be 
affirmed without an evidentiary record. If we established the 
record of evidence we proffered, then we submit that the charges 

should be dismissed.
Demonstrations continued in Birmingham and the complaint 

filed against the petitioners alleged there sit-in demonstrations 
in privately owned businesses, and this Court subsequently held 

they could not be punished. In the Goldberg case, there were- 
alleged parades without permit. The petitioners filed affidavits 
in response to this saying they were walking on the sidewalk and 
this was something for which permits were not necessary. They 

contemplated -- apparently it never occurred —  so-called kneei- 

ins at churches, and then there were a great many arrests

MR. GREENBERG: I wouldn*t even say vagueness is out of



during this period of time.

I might inform the Court there are now pending approxi­
mately 1500 cases on appeal to the Circuit Court In Birmingham 
awaiting final disposition either of this case or of the 

Shuttlesworth case in the Alabama Court of Appealsj about 700 or. 
800 were dismissed on the basis of this Courtrs decisions In 
Gober and Ham, and about 1100 Juvenile cases were dismissed with 
no reason being given, and about 50 or 60 people paid fines and 
those cases were disposed of.

The city catalogued these occurrences and complaints 
filed at 9:00 p. m. on Wednesday, April 10,asking far a temporary 
restraining order against all so-called unlawful demonstrations 
for parading without permit, without notice, without hearing.
The Circuit Court entered a temporary restraining order forbidding

MR, JUSTICE STEWART: There is nothing wrong about that,
is there?

Are you implying that is shocking, that you have a 
temporary restraining order without a hearing?

MR, GREENBERG: Yes, not In the abstract, but I think
we are dealing here with First Amendment context and assessing 
the validity of the injunction, and assessing the validity of 
contempt convictions. I think that all adds up to the general 

oppressive atmosphere and the way this type of proceedings v-.-e 
being used in the City of Birmingham. Essentially it was granted



on the affidavit of "Bull" Connor, requesting the Court to remit 
the petitioners back to ''Bull" Connor if they wanted to march, 
after which they told them they would picket the City Jail, And 
we submit this is not a Mine Workers case, be it called an ex­

ception or otherwise.
MR. CHIEF JUSTICE WARREN: We will recess now, Mr.

Greenberg.
(Whereupon, at 2:30 o'clock, p. m., the argument was 

recessed, to reconvene at 10:00 o'clock, a. m., Tuesday, March 

14, 1967.}



17

IN THE SUPREME COURT OP5 THE UNITER STATES

WYATT TEE WALKER* MARTIN LUTHER KING* JR,, )
RALPH ABERNATHY* A. D, KING* J.'W. HAYES* )i
T » L s FISHER* P. L. SHUTTLESWORTH AND )
J. T, PORTER* 's/)

)
•Petitioners* )

)
v. )

)
CITY OF BIRMINGHAM, a Municipal Corporation } 
of the State of Alabama, )

)
Respondent * )

No* 249

Washington* D, C. 
Tuesday* March 14* 1967

The above-entitled matter came on for.further'argu- 

menfe at 10:12 o'■ clock* a.m»
BEFORE:

EARL WARREN* Chief Justice of the United States
HUGO L. BLACK* Associate Justice
WILLIAM 0, DOUGLAS* Associate Justice
TOM C. CLARK* Associate Justice
JOHN. M, HARLAN* Associate Justice
WILLIAM J„ BRENNAN* JR,* Associate- Justice
POTTER STEWART* Associate Justice '
BYRON H, WHITE* Associate Justice 
ABE FORTAS* Associate Justice

APPEARANCES:
(As heretofore noted, )



18
C O N T E N T S

O R L ARGUMENT: PAGE

JACK GREENBERG, ESQ, 19

LOUIS P,( CLAIBORNE, JSSQ, 25

J. M. BRECKENRIDGE, ESQ, 71

REBUTTAL.ARGUMENT:

JACK GREENBERG, ESQ., 82



19
p 5. '9 £ 1 . 1  5. I n Q s

• MR:. CHIEF JUSTICE WARREN: Mr, . Greenberg, you may

continue with your argument*
ORAL ARGUMENT OP JACK GREENBERG, ESQ.,

ON BEHALF OF PETITIONERS--resumed 
MR. GREENBERG: Mr. Chief Justice and may it please

The Court; In the ten minutes remaining to me I would like to 
respond to some of the questions asked yesterday by Mr. Justice 

Fortas and Mr. Justice Harlan principally where they go to the 
very -heart of the case. They relate to the Mine'Workers issue, 
to its significance to this case and to . Trie position we are 

asking The Court -to take with regard- to the issue.
Mr. Justice Harlan asked whether it was not the 

threshold I isu-e-j and it is in the sense that The Court faces 
the problem of whether it can reach the validity of die Injunc­

tion on review of the -Judgment of contempt, but it is nor 
issue in the sense that The Court must reach tne consent;/.i.-.-.u-.... 

question of whether a state can invoke the Mine Workers issue 
as a bar to entertaining First Amendment defenses. The C o m  

can reach the Mine Workers issue, but it does not hate to too-. u 
it did not for example in Thomas v. Collins in which under uses., 

law the state courts could have and did pass upon the vallo-iis 
of - the injunction in the action for contempt. That, Mr. Jus bio 

Fortas, is the difference between our position and the govern- 

raent's case. The government argues Mine Workers exclusively .



20
and we come here sensitive to-a. concern that The Court may think 
it inappropriate to decide a constitutional question of such 
great importance if that question is'not inescapable. Therefore 

the major thrust of our argument is to demonstrate that that 

may be done.
While The Court can reverse without reaching Mine 

Workers we submit, however* it can not affirm without reaching 
it* and I should like to mention several grounds on which The 
Court may reverse without reaching the Mine Workers issue.

The Alabama State Supreme Court gave what purported 

to be an adequate state ground for affirms©**, but we submit 
that heretofore state law did not embody Mine Workers, ihe 
Alabama State Court gave its reason for refusal to review the 
judgment o? contempt as two things. One* the court below is 

a court of equity and, two, they was service upon the parties.
In no ease heretofore has Alabama law embodied this as the 
sole grounds in reviewing a judgment of contempt. For example, 
in Fields against City of Fairfield, as I tried to point out- 
yesterday, there was at issue almost precisely the issues th«v 
are here in this case. There was the question of the validity 
of a permit ordinance which was alleged to give discretionai:y 
far too broad and vague to administrate. There was the validity 

of the injunction embodying that order. The petitioners in 
that case went to the State Supreme Court and the State Supreme 

Court examined the injunction on a number ox grounds.



21
Disjunctively it looked at jurisdiction and whether the order 

was void. In determining whether the order was void t e 
Court examined the permit ordinance and then the injunction, 
and then it said the permit ordinance and the injunction are 

valid and proceeded to affirm. This Court then, of course, 

reversed on other grounds. ■
In our case it did not examine whether the order was 

void in the same sensed they did examine whether It was void in 
the Fields case, and we submit that Alabama heretofore quite 
clearly e.Ibodied that type of review. We were entitled to 
that type of review in the State Supreme Court and consequently 

»re was not an adequate state ground for refusal to review.
The Fields' case is not a' mutation or sport In Alabama 

law. Alabama courts had consistently gone beyond the two narrow 

grounds they gave in our case. In a case involving indeed 
another party to this case, Commissioner Connor, in re Connor 
which is cited in our brief, the Alabama courts looked at 
whether or not the injunctive order was too vague, and they 
stated that would be an adequate ground for reviewing, the 
validity of the injunction in a contempt action. And in a very- 
early Alabama case, also set forth and discussed at some length 

In. our brief, Board of Revenue of Covington County v. Merrill-, 
tea .Alabama court looked at whether or not the court of equity 
Dad jurisdiction in the sense there were proper substantive 

allegations in the complaint of fraud, corruption, and bad



22

faith dealing with the Board of Review, and the?/ said there 
was no jurisdiction in the review of contempt action, no ju.rio-- 
diction to review the injunction and consequently it was reverses: 

This we submit is something the Alabama courts could have dona 
here under Alabama law and therefore this ground is available 
to thiaf group because this Court has done it in Thomas v. oo.Lil;tS 

and Donovan v. Dallas and other cases in which it has reviewed 
the validity of an injunction and contempt action. If that 
ground was available to state law that shoulo have oeen avail­

able to us here.
MR. JUSTICE WHITE: They did apply the Mine Workers 

rule in this case and said it was Alabama law in this case?
MR. GREENBERG: That is right. Significantly they

cited no Alabama case. They cited the line Workers for the 

first time.
MR. JUSTICE WHITE: I suppose the state is free to

change its policy and change its own law.
MR, GREENBERG: The question is whether or not the

federal question is properly here as a question for. this Court. 

In NAACP v, .Alabama one might have said that the state could
have changed Its laws at this point, but the petitioners wore 
untitled to rely upon the present existing law in raising a 
federal question, and indeed we did in the trial court and the 
trial court did pass upon the validity of die injunction.

MR. JUSTICE WHITE: They were entitled to raise a



23
federal question but here the State Supreme Court has already 

said this is the rule of Alabama.
MR. GREENBERG: But we would submit., I believe., Mr.

Justice White, in numerous cases in this Court when a procedural 
rule is changed for the first time as a bar to raising a federal 
question this Court does not consider a bar to review that 
question here. The petitioners had good reason to believe 
that they have raised that question and presented that issue 
in the Alabama courts and indeed the trial court to some extent 
gave its holding perhaps on alternative grounds. They cited 

Cox v, New Hampshire saying this ordinance was okay. The 
Alabama Supreme Court did nothing, said we have a court of 
equity and that was the end of it. Me submit we are not there­
fore barred from bringing this question here via that route*

MR. JUSTICE FORTAS: Do you not have to say a little
more, Mr. Greenberg? Perhaps you have to say that the petit­

ioners here cannot be held comparable for violation of the 
injunction on the basis of Mine Workers if there are actions 

viewed in light of the law prior to the law in this case was 

arguably justified because of Alabama law.
MR. GREENBERG: Yes, Mr. Justice Portas. I think

that we have said that. One of our problems is that there, are 
so many things to say in this case it is impossible to say 
them all at once. But clearly we would submit it does not 

take very much argument in this Court to establish*-we did have



24

here an unconstitutional ordinance embodied in an injunction 

perhaps more unconstitutional than the ordinance.
MR. JUSTICE HARLAN: When you say unconstitutional

you mean unconstitutional on its face?
MR. GREENBERG: Unquestionably. The ordinance em­

bodied some of these very same standards of general welfare 

and so forth which have been held unconstitutional.
Mi. JUSTICE HARLAN: Of course you are precluded on

other grounds of action. You are precluded to enjoin the 
ordinance if valid on its face or at least not unconstitutional 

on its face as discriminatory.
MR. GREENBERG: That is true. And that brings us

to another ground why The Court need not reach the Mine Workers 
in this case., though if the Court did reach the Mine Workers 

case we submit The Court ought there to go directly to the 
merits. We are awari of many decisions of this Court and this 
is something The Court does not do lightly and we are trying 

in argument to offer to The Court certain considerations where 
it does not have to go to Mine Workers * If it did we would say 

Court owed a reversal and we were precluded from making a 
score! which would demonstrate just what remitting us to Bulx 

Connor would mean. And we would say before The Court should 
make a decision on a question like that of rather far-raeching 
constitutional points, to what extent can a First Amendment 
right be frustrated by the issuance of an injunction? We would



23
say that The Court ought to understand the full Implications
of doing something like that. Constitutional decisions are

frequently avoided when the record is -not complete. There
a&are cases that say if a ease comes up on a Tlomurronc'e, ix wei

wanted to try to embody an ordinance which says go work it 
out with '’Bull" Connor and we were prevented from doing that, 
we would submit that Is an additional ground on which The 
Court may decide this case. The Court ought to have a full 
record, but if it does reach the Mine Workers we would submit 

it ought to go to the merits and reverse.
I have a minute left and I would like'fee the Court 

please reserve it for rebuttal.
ME. CHIEF JUSTICE WARREN: Mr. Claiborne.

ORAL ARGUMENT OF LOUIS F. CLAIBORNE, ESQ.,
ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE 
MR, CLAIBORNE: Mr. Chief Justice and may it please

The Court: Our argument begins with the premise that the Court

will reach the Mine Workers issue here. In saying that, I 
don't mean to disparage in any way the argument which has been 
raised that there is a threshold question whether Alabama 
courts have prior to this case applied the Mine Workers doctrine 
and, therefore, whether they may bar the petitioners from arguing 
the validity of the Injunction here because for the first time 

they did invoke that doctrine. There is, it seems to us, a 
strong argument to that effect. We have, not reached that point.



26
We leave that argument to petitioners, and we argue only the 
question most interesting to the united States, the most far- 

reaching, which is the application of the Mine Workers rule in 
this sort of context on the assumption that it is a question 

likely to be reached by The Court.
MR. JUSTICE STEWART; It is a question of what?
MR. CLAIBORNE: Likely to be reached by The Court

as we view it. Without meaning in the least to quarrel with 
the question of the Mine Workers doctrine properly applied in 
circumstances which clearly call for its application, we do 
think it important to point out at the outset what a remarkable 

extraordinary rule it is in some respects. It does allow the 
imposition of criminal penalties for the violation of a court 

order which by definition is contrary to law or contrary to 
the Constitution. Now that is a principle rather unique in our 

law. It does not apply to the commands of the legislature or 

to the commands of the executive officers. If a policeman 

tells someone.' to remain or to move on and that order - is im­
press r or unconstitutional, this Court has repeatedly held 
there can be no penalty for violating it. Likewise, there can 
be no penalty for violating a statutory law nor can there bn 
any penalty for violating the order of a legislative committee 
when it directs a witness to assert his constitutional privilege 

and he refuses to do so. In saying all that, we are not, as we 
say, trying to disparage the rule. We are trying to find the



27
reason which is special to court -.dacroea which justifies the 
somewhat harsh absolute principle that the Mina Workers coc~

t r i ns erabo d i a s .
Why should there be such a special rule applicable 

to.a court order? There seams to us only two reasons. It 

seems to us there could only be two reasons. The first Is 
that judicial orders are directed in particular cases and 
directed against a particular defendant, they are confined as 

to time and place, and in this respect they are different from 
general laws or general executive regulations. For the same 

reason they are less likely ta.be vulnerable to such defenses 
as equitabillty, The obedience to court orders is less likely 

to cause widespread'injury than blind obedience to more gen­

eralized laws.
Even that rationality does not carry all the way

because there is the same specificity in a policeman’s same
directive to a suspect to stop and there is the same specific may

din the order of a legislative Committee to a witness to answer 

a particular question. There must be another reason why court 
orders are especially immune. It seems to us that that reason 
is in our sys t em Acourts*are the final authority with respect 
to applicable issues to concrete controversy. The considered 
judgments of courts must be respected sine© they are the finea 

authority unless we altogether abandon the rule of law. w©cause 

of the way judicial processes work, because courts need time to



28

decide oases,their temporary stay orders to preserve fcho-̂ csag,
4,o ,i.)a W > the status quo must also be respected.

Now in applying those rationale to this case it seems 
to uo that in important respects they don’t fit, • This ?ofc 
a case like the Shipp case for Instance in which this Court 
had issued a stay order pending an appeal here from a capital

J
conviction from .a state court. This Court in order to give 
itself time to decide whether it had jurisdiction of the appeal 
stayed the execution of the defendant who had been convicted, 

and notwithstanding that, however, the prisoner was lynched 
allegedly or was found with the connivance of his custodian 
the local sheriff, that action wholly mooting the case arid 

'preventing the judicial process of the Court.
Here it seems to us we have rather the reverse of 

that situation. The issuance of the injunction if it must be 

obeyed mooted the legal controversy because for all practical 

purposes this parade, this parade or march or these marches 
could not be postponed indefinitely, Their timing was important; 

In the context of Birmingham in 1963. This protest could not 
serve its purpose several months or years later when this 
injunction was ultimately vacated on appeal perhaps even in 

this Court.
MR. JUSTICE STEWART: Mr. Claiborne, if I follow

your argument I want to perceive what ultimately is directed.
The Mine Workers rule is the rule of the federal courts basically,



89
is it not*?

VII. CLAIBORNE: Yes, sir.
MR. JUSTICE STEWART: There is nothing constitutional

about it I suppose. There is no requirement that every state 

follow the Mine Workers rule, is there?
MR. CLAIBORNE: No, sir.
MR. JUSTICE STEWART: And any state is free not to

follow it.
MR. CLAIBORNE: In Donovan v. Collins they did not

follow it.
MR. JUSTICE STEWART: Right, And here Alabama has

followed it in this case. Do you agree on that?
MR. CLAIBORNE: Correct.
MR. JUSTICE STEWART: And your claim now is that in

Alabama there is a constitutional compulsion upon Alabama not 
to follow it or is It your claim, all right, Alabama followed 

it and satisfied themselves but that is an inadequate state 
grounds. Which is your argument or neither?

MR. CLAIBORNE: Our argument first is that the due

process clause in the case of the state bars a state from 

applying the Mine Workers doctrine.
MR. JUSTICE STEWART: The Constitution prohibits

the state in this case from following the Mine Workers rule.

Is that your argument?

MR. CLAIBORNE: Yes, sir, especially in the light of



30
First Amendment rights which are affected on the other side.

MR. JUSTICE STEWART: Is'not your argument; simply

that this is an inadequate state ground? Or is that another 
way of putting the same thing?

MR. CLAIBORNE: 1 suppose the inadequacy of the
state ground would have to turn on Its unconstitutionality*

MR. JUSTICE STEWART: Often a state ground is Inade­
quate even though it may be perfectly constitutional.

MR* CLAIBORNE: Well it wouldn’t here. This is an

error of procedural rule that had no rationale and no basis 
so as to prevent the usual defense. I think we do rest on the 

rationale of the Green case, as I understand it, in re Green 
in this Court in which in its opinion The Court held the Four­

teenth Amendment prohibits a state from denying the defense of 
validity with respect to an injunction Issued by a court in an 
area which was pre-empted by federal legislation. Here we say 
in the one part of our argument that something of the same 
stands* The area was pre-empted by the First Amendment and 
that the state court here In issuing the sort of over-broad 
injunction stifling the First Amendment rights was actingV
unconstitutionally beyond its jurisdiction in an area pre-empts 

by the Constitution by the First Amendment.
MR. JUSTICE WHITE: What if a rule that a state apyEJ

in some case just does not apply to other cases? It Is a sort 
of a some time thing, sort of a discretionary rule* Sometimes



they do and sometimes they don't. Is that an adequate state 

ground? It may not be.
MR. CLAIBORNE: I would say that when the consequences

of such a rule are so serious 03 they are here, that Is to bar 
the expected ability to defend on the ground of Invalidity of 
injunction, if we assume that Alabama had for the most part in 
the past allowed in a criminal contempt proceeding the defendant 

to defend on the ground that the injunction tuas Improper, that 
expectation cannot be defeated by the invention of a new rule 

which has such a drastic effect. And it seems to me that is 

the holding of this Court in NAACP v. Alabama.
MR. JUSTICE WHITE: I think since you are arguing

the constitutionality you must argue you don't stop short.
MR. CLAIBORNE: As I said in the beginning, Mr. Justice

White, I don1i mean to denigrate in any way the argument that 
this is the first time that Alabama has applied this rule and, 
therefore, it Is an inadequate state ground here. I do begin, 

on the premise, however, that there is some question about 
that and that The Court may have to reach the Mine Workers doc­

trine. That is the question which concerns most directly the
United States and is its reason for participating in this case

-bo
and, therefore, 1 am limiting my argument -et it without really 

taking a position as to whether The Court must reach it.
MR, JUSTICE BRENNAN: .Did I understand you, Mr.

Claiborne, to say having reached that rationale it was because

31



32
Congress enacted legislation necessarily there was no juris­

diction in the state court to issue the injunction allegedly 
there violated, that similarly here, not because of any legis­
lation but because of the First Amendment, that this is an 
area in which if the ordinance violates First Amendment princi­

ples there is no jurisdiction in the state court to issue this, 
injunction enjoining violation of the ordinance? Is that it?

MR, CLAIBORNE: I think that is the analysis I was

suggesting, Mr. Justice Brennan.
MR. JUSTICE STEWART: Is your argument then &*-*«-

confined to the First Amendment ox’ is your argument the same if 

any provision of the Constitution deprived a state court/Quris- 

diction, to issue the injunction, and, if not,, why not? In 

other words, how^S5^n\ possibly be confined to the First 

Amendment, if it is?
PR. CLAIBORNE: I do accept those rulings of this

Court which view the First Amendment as more absolutely pre­
empting from state courts, for that matter federal courts/
power to interfere in theFirst Amendment area than is true 
with respect to other constitutional guarantees. I don’t see: 

necessity for reaching the question whether the same pr.

,/la would apply elsewhere.
Jfjp

based on this

JUSTICE STEWART: Well certain problems are not

case, but when wa argue and decide a case is it

certainly not a better part of valor to think how far it does



33
reach?

MB. CLAIBORNE.; I think there is an argument, Mr.. 
Justice Stewart, that a serious constitutional inhibition on 
state court action whether under the First Amendment or any 
other would deprive that court of jurisdiction to act and that, 

therefore, the same argument would apply,
MR. JUSTICE STEWART: I am thinking, for example,

about perhaps somebody relying on the Ninth Amendment or the 
Tenth Amendment thinking he could disobey at his choice and 

his discretion an 'injunction df a federal court because 1 

reached the conclusion that the federal court is absolutely 
without jurisdiction to order him to do something because of 
the Ninth or Tenth Amendment. He could make exactly the same 

argument, could he not?
MR. CLAIBORNE: Well I think something does depend,

Mr. Justice Stewart, on the specificity of the constitutional 
protection on the clarity with which one can say in advance 
that the court la acting beyond its power, and when we are- 
dealing in. the area of the Ninth or Tenth Amendment that becomes 

for more difficult and debatable and, therefore, perhaps the 

duty to obey .Would be even the greeter. I think in the Mine 
Workers c  oo itself Mr. Justice Frankfurter*s opinion indicators 

if this was a case plainly governed by the Norris-LaGuardis Act 
then, of course, disobedience could not be punished. When the 

area is so clearly withdrawn -•» I think that was the rationale



of the Green case that the National Labor Relations Act had 
very plainly withdrawn from the state courts all power in this 

area and that would inevitably be true in the Ninth and Tenth 

Amendments,
MR. JUSTICE STEWART: Well that is certainly not

right, is it? Many times It could be very clearly true in the 
area of the Ninth and Tenth Amendment^'where the federal court 

could enjoin a person from getting a divorce, under the state 
law. That would clearly'be a violation of the. Ninth or Tenth 

idment because that is clearly a matter within the jurisdic­

tion of the state courts putting aside —
MR. CLAIBORNE: That injunction could be disobeyed —

MR. JUSTICE STEWART: You say it could?

MR. CLAIBORNE: I would, yes.
MR. JUSTICE FORTAS: Really all you are talking about

Is not whether the injunction can be disobeyed with impunity 
but whether the person who disobeys the Injunction has the right 

to have his claim that the injunction was void examined by the 
court. Is that not right?

MR. CLAIBORNE: Exactly so.
MR. JUSTICE FORTAS: In other words, there are two

Questions, two hurdles he has to get over. One is the United 
Mine Workers case, but in the united Mihe- Workers case if he 
gets over that that is nothing more than a ticket to get into 

court and try to establish the injunction is void. Is that right?

34



MR, CLAIBORNE: That is so, Mi*, Justice Fortas. How
ever, it may be that in order to get over the hurdle one must 

prove that the injunction is plainly invalid, and in Fir. Justice 
Stewart’s case I took that to be the case and answered the 

question the way 1 did. Analytically certainly one first decides 
whether a defense is available and then decides whether the 

defense is good or not.
HR. JUSTICE BRENNAN; For example, suppose what had 

happened here was: this, that application was made for the injunc­
tion and the petitioners here had gone to the trial court and 

said, now, we want to be heard on the question of the validity 
under the Federal Constitution of this ordinance, and the trial 
judge said I think that is right, I think you ought to have an 

opportunity and we will schedule a full hearing'on that for 
next week. Bring in all your witnesses and we will hear oral 
argument and otherwise. But meanwhile 1 don’t think you should 
demonstrate and I am issuing a restraining order {TRQ}. Come 

back here next week and we will have a full hearing. Would the- 

government still be making the argument it is, and then the 
;ri3l judge conclude after full hearing, opinion and everything 
else, that, no, he does -not find any merit in the const lotions 1 

argument and he sustains the validity of the injunction?
MR. CLAIBORNE: That would be a somewhat different

ease, Mr, Justice Brennan, because here there was no scheduling.
MR. JUSTICE BRENNAN; But, as I understood what you



36
said earlier, the ordinance if unconstitutional establishes a 
jurisdictional defect in any power of a trial judge to issue 

an injunction order enforcing that ordinance.
MR, CLAIBORNE: I recognise that. I think there is

■ >
a strong argument that even in the situation imposed because 
it is an unconstitutional prior restraint on the exercise of 
First Amendment rights which is, with exceptions, not relevant 
here wholly improper at least when we are dealing with an 
injunction of this breadth which has no escape valve. It 
prohibits parades at any time at any place in the city for an 
indefinite future,

MR. JUSTICE BRENNAN: Incidentally, what actually
happened here? As I recall it, the permit was refused by Com­

missioner Connor and then the application was made. Was there 
any kind of hearing before the trial judge before the restraint

was issued?
MR. CLAIBORNE: No, there was not. It was issued

ex parte at 9:00 o ’clock at night upon the.application of the 
city. So far as it appears the application was made, the judge 

ordered the injunction to be Issued, the clerk did issue It, 
all in the space of minutes, so far as it appears, without any 

hearing or- notice,
MR,. JUSTICE BRENNAN: What was the hearing Mr. Green­

berg said an effort was made to offer proof?
MR, CLAIBORNE: That was the contempt hearing.



37
MR. JUSTICE BRENNAN: But there was never any other-

hearing?
MR. CLAIBORNE: The motion to dissolve the injunction

was filed after the parades involved here, the day after on 
Monday, The last parade here is the Easter Sunday parade. The 
petitioner did ask that that motion be taken up first rather 

than the contempt citation which was filed later that day. The 
judge reversed the order of the questions and never reached the 
question.of dissolution and found the petitioners for contempt.

MR. JUSTICE STEWART* Is that motion to dissolve 

still pending?
MR. CLAIBORNE: So far as we are able to determine

it is technically still pending.
MR. JUSTICE STEWART: Was there ever a request for

a hearing on that motion?
MR; CLAIBORNE: There was on the day when —  in fact,

when the motion was filed it was set - for a hearing a week here...
MR. JUSTICE STEWART: That is the motion to dissolve.

MR. CLAIBORNE: The motion to dissolve later that
same day. This is Monday., April ~~

MR. JUSTICE STEWART: This Is the Monday after the

parade?
MR. CLAIBORNE: The Monday after the parade.
MR. JUSTICE STEWART: The Monday after Easter,

MR. CLAIBORNE: The citation for contempt or motion



38
to have- the petitioners held in contempt was filed by the city 

and it was set for the same day a week hence. When that day 
came the petitioners asked for a hearing on their motion to 

;solve. As I understand it that had been filed first. The 
city objected to it and the court chose to consider the contempt 
first and never reached the motion to dissolve and never yet 

have reached it.
MR. JUSTICE STEWART: Why not?
MR. CLAIBORNE: On applying the Mine Workers rule

that question became moot.
MR, JUSTICE STEWART: I know, but they might still

want to parade some afternoon.l§if . . . . ■ ’
MR. JUSTICE WHITE: Is the injunction still in effect?

MR. CLAIBORNE: So far as we are able to determine,

the Injunction is still in effect.
MR, JUSTICE WHITE: There is no time limit on TRO*s in

Alabama?
MR. CLAIBORNE: No, as far as we understand the law.
MR. JUSTICE WHITE: Then who is responsible for

calling up a hearing on this permanent injunction on the validity 

of the ordinance?
MR, CLAIBORNE: I frankly don't know, Mr. Justice

White. I would guess it may be the burden of the petitioners 
if they want that TRO dissolved. That is if the city still 
uses it as in effect, I have no indication one way or the other



on that. But I suppose that they are’’'XV co . into court

at any time and hare been for some time and W  for the disso­

lution of that THO or for- that matter to appeal it to a higher 
court.

MR. JUSTICE WHITE: Bo you have on the tip of your

tongue cases in this Court In which you think the kind of parades 

here are protected by the First Amendment?
FIR. CLAIBORNE: Mr. Justice White, I don’t go to the

facts of this case. I don * fc think it is my burden to show that 
the kind of parade action to be held was protected. I don’t
mean to question, that one way or- the other, but I do think
there are cases in this Court which hold that an injunction 
which bars any parade at any time In any part of the city under 

any circimis lances for any purpose, that the cases which so 
hold are cited In the footnote in the Cox case. That Is one 

aspect of tha Invalidity of this Injunction is over-breadth,

Its failure to provide any sort of temporising escape.
MR. JUSTICE WHITE: Bo you have any cases to indicate

that the over-breadth Issue may be raised in a contempt hearing 

like maybe on the merits?
MR, CLAIBORNE: No, sir, I don’t think this issue

has avei' come before this Court in a First Amendment context.
MR. JUSTICE STEWART: This ordinance providea that o

permit upon, application might be issued by the Commissioner a: 

there was never any application, to the Commissioner for a permit

39



40

In  t h i s 'c a s e .  So you  d o n 11 know 'how  b roa d  i t  I s .  I t  was n e v e r  

a p p l ie d  f o r  t o  th e  C om m ission er  a lth o u g h  th e y  w ere t o l d  b y  th e  

lan g u ag e  o f  th e  o r d in a n c e  and t o l d  s p e c i f i c a l l y  by  t e le g r a m .

MR. CLAIBORNE: As I was about to suggest to Mr,

Justice White, it seems to us that the other defect, perhaps 
the clearer defect in both the ordinance and the injunction, 

which does nothing more than .repeat the ordinance with no 
narrowing whatever, Is precisely the pending aspect of It 
which allows the city, its Commission to withhold a permit on 
a series of grounds which amount to '-absolute undefined discretion 

of the city to grant or withhold the permit.
MR. JUSTICE STENART: But.th e  Commission has never

w ith h e ld  a p e r m it  from  t h e s e  p e o p le  b e c a u s e  th e y  never applied 

t o  th e  C om m ission ,

M R.' CLAIBORNE: The ruling of this Court as I u n d e r ­

s ta n d  it, Mr. Justice Stewart, ever since Thornhill v, Alabama
*

repeated in Cox and Louisiana Is that even one who might have 
for the asking obtained such a permit has a standing challenge 
of this censorship procedure of the municipality, and whether 

that applies to parades or to meetings or to speech the court 
has applied it' in all of those instances. In Cox, of course, 

it was exactly this sort of demonstration.
MR. JUSTICE STEWART: Let us assume it is censorship

w h ich  is a fairly large step, does not the issue of th e  Chicago 
case have that the other way, The Chicago Moving Picture Case



versus Time Film?

MR, CLAIBORNE: Well this Court has recognized that

with special safeguards there may be some licensing, some 
censorship in the movie area, but it has. been very cautious, 

it seems to me, to confine that exception both narrowly to 
that area and to insist in subsequent cases that they have as 

many safeguards as possible and that there not be any greater 
prior restraint without hearing than is necessary, Here we are 
dealing with an ex parte order and not a considered adjudication 
after an adversary hearing, At the same time we are not dealing 

with a state order to preserve the' status quo because this order 
leaves nothing open on the merits.

MR, JUSTICE BLACK: Would you mind stating what case
you referred to when you said this Court has held that a state • 

is without constitutional power to forbid marching and parading?

MR. CLAIBORNE: I didn’t mean to say that, Mr, Justice
Black. I meant to say this Court has held that generally we 
have a somewhat different context on a prior restraint on the 

exercise of First Amendment rights with the exception of the 

movie area case.
MR. JUSTICE BLACK: Are you right now talking about

the right to parade on the streets of a city maybe beyond the 
constitutional power of the city to control?

MR, CLAIBORNE: Hot beyond the power of a city to

control but beyond the power of a city perhaps to forbid



altogether* under all circumstances,
MR, JUSTICE BLACKS Now what case is that?
MR. CLAIBORNE: The Cox case —  the Cox case most

recently indicated —
m, JUSTICE BLACK: It did that, did it not?

MR* CLAIBORNE: No. sir,
1®, JUSTICE BLACK: 'what case has done that?
MR. CLAIBORNE: Well, as I say, ± don't have unem

at hand, hut the Cos opinion
MR. JUSTICE BLACK: It seems to me to be the whole

sis of this case, and I haven't yet heard a single case 
pointed to where this Court has held that to be the constitutional

rule,
ME, CLAIBORNE: In this case we not only have what

seems in one sense like a complete prohibition on all parades 

of any kind whether or not they obstruct traffic —
MR, JUSTICE BLACK: In what case has this Court sale

there cannot be such a law as that*.'
MR. CLAIBORNE: Well I can only refer Your Honor

back to the Cox case and those cited —
MR, JUSTICE BLACK: Does it so hold?

ME, CLAIBORNE: No .
ME. JUSTICE BLACK: What case does so hold?
ME. CLAIBORNE: I don't think any case specifically

so holds. The other flaw, Mr. Justice. Black, is tnaz vuls



43
injunction does attract a permit ordinance which allows the 

city officials to waive this bar on parades whenever they choose 
in their absolute, unconfined discretion and there are many 

cases in this Court which hold that that is constitutionally 
permissible, and that is also involved here.

MR. JUSTICE HARLAN: There is no construction of

this statute by the Alabama Supreme Court?
MR. CLAIBORNE: Unlike Cox and Mew Hampshire, Mr.

Justice Harlan, there is no narrowing construction of the permit 

requirement which might possibly say that.

MR. JUSTICE HARLAN:_ Nor has It been.In the Supreme 

Court here.
MR. CLAIBORNE: That is correct. But this case' indi­

cates from April 1963 as does the Shuttlesworth case which was 
decided in the Alabama Court of Appeals, and the Alabama Supreirre 
Court still has not decided that question in the case and subse­

quent case —
MR. JUSTICE STEWART: You filed that motion to dis­

solve, this injunction and I suppose that would have been the 

issue there,- one of the important issues, and you never pursued 

it. I don’t mean you personally.
HR. CLAIBORNE: But that very Issue was decided in

the Chutfciesworth case. The Alabama Court of Appeals itself 
held this ordinance unconstitutional in two respects.-inappli­
cability Is a third— and the Alabama Supreme Court while having



granted certiorari to review that decision did not decide that 

would seem to be the appropriate place to have it decided,
MR, JUSTICE WHITE: Mr,'Claiborne, in your brief you

seem to indicate that this injunction not only covered parades 
and gatherings in connection with streets but that it covered 

demonstrations or assemblies of any kind anywhere. Now that is 

not so5 is it?
MR, CLAIBORNE: It is so/ Mr, Justice White,
MR. JUSTICE WHITE: Where is the injunction?
MR, CLAIBORNE: The injunction is reproduced on

pages 4 and 5 of our brief.
MR, JUSTICE WHITE: Let us assume they had a very-

large meeting in the park. Is that enjoined here?
MR, CLAIBORNE: Well congregating on the street or

public places into mobs— ail public places into mobs— the sixth 

line down on page' 5. 'How we donTt rely on that portion of the 
Injunction because it doesn’t seem to us that that is directly 

at issue here,. The violation charged here is a violation of 

parading without a permit.
MR. JUSTICE WHITE: Well if it is true that it was

covered in this sort of thing it would be an example of over- 

breadth,
MR. CLAIBORNE; We do point out as we understand it 

that this -injunction does two things: it says first you snalx
not violate the parade permit ordinance of the city nor shall



45
you do anything else unlawfully,

MR, JUSTICE WHITE: If you are right the injunction

is far broader than the-ordinance and yet you really say it 

really detracts from the ordinance. .
MR, CLAIBORNE: We feel compelled to that argument

because it seems to us that the only violation of the injunction 
charged here is a violation of that part of the injunction which 

attracted the ordinance. The reason that they were charged'"con­
tempt does not rest on congregating in the park into mobs.

MR, JUSTICE WHITE: You mean you must justify the

actual kind of parade that your clients held or that these 

petitioners held?
MR, CLAIBORNE: No. I say nothing about the parade

itself.
MR, JUSTICE WHITE: You really are saying now this

might cover some other kinds of parade?
MR. CLAIBORNE: Yes, but I am treating the injunction

as separably covering parades and' other activities. I may be- 

wrong in that. It may be proper to treat the injunction as one 
far too broad in addition to any First Amendment conduct whether 

picketing or meeting in the park,
MR. JUSTICE WHITE: But it is an over-breadth you

rely on and I don’t know how you can rely on it, If you can1t 

rely on it I don’t see how you can rely on breadth at all,

MR. CLAIBORNE: Perhaps we should rely on it. We do



h e

point out that It not only attracts the ordinance? but it does 
go far beyond and inhibits all sorts of other action, which, 
however, is not directly involved in this case. But primarily 
we say this is an effort to convert an ordinance the violation 
of which could be defended in a trial by an injury on the ground 
of invalidity of the injunction. Just by giving it a judicial 

form the defendants have been deprived of both those rights, 
and'it seems to me that is not what the Mine Workers rule was 

intended to permit.
MR. JUSTICE WHITE: When the temporary petition or

the complaint was filed was it accompanied with any affidavits?
MR. CLAIBORNE: It was accompanied with two or three—

I have forgotten how many— affidavits by police officials of 

the city.
MR. JUSTICE WHITE: I take it they are in the record.

MR. CLAIBORNE: They are in the record, and annexed,
MR, JUSTICE WHITE: You wouldn't say that the issuance

o f  th e  temporary injunction was any kind of adjudication or 
o b s t r u c t i o n  of the ordinance, namely that at least the p e rm it 

requirement covers the kinds of parades that petitioners were 
engaged In and that at least these parades required a permit.

MR, CLAIBORNE: I think that could have been done in

the injunction, Mr. Justice White, but by attracting the lan­
guage of the ordinance and without attempting to confine it 

to the sort of parade —



though is with respect to the "parades these petitioners wanted 

to hold. So it is solely on that loaf of bread that you rest, 
MR. CLAIBORNE; Yes, though I think -- 
ME. JUSTICE WHITE: The parades somebody else might

want to hold or you might want to hold,
MR. CLAIBORNE: It seems to me that here, as is true

in all First Amendment cases, these petitioners even if their 

particular conduct might have been reached --
MR, JUSTICE WHITE: I understand that. Nevertheless

you have a contempt case here. It seems to me to be in a 

little bit different light,
MR, CLAIBORNE: Yes. I attempted to point out this is

a contempt case only because the ordinance was put into judicial

language without —
MR, JUSTICE-WHITE: I know, but it was suggested by

the issuance of this temporary injunction that this particular 

kind of parade described in the affidavit required a permit and 

then, there was a contempt action.
MR, CLAIBORNE: Well the kind of parade described in

the application is nothing very precise. It ranged from- sit-ins 

to kneel-ins to parades of 50 people to parades of several 
hundred people, and, indeed, the Alabama Court of Appeals found 

that a parade of 50 people confined to the sidewalk did not 

require a permit whereas a .parade largei eno might. Here these

MR, JUSTICE WHITE: But the only way you are injured



48
petitioners are charged with engaging In two parades., one on 
Good Friday, the one that the Alabama Court of Appeals held 
clldrr't require a permit at all- and one on Easter Sunday being 
a larger one probably did require such a permit. But the back­
ground in this case does not enlighten the scope of the injunc­
tion very much I would say,

Thank you.
MR, CHIEF JUSTICE WARREN: Mr. MeBee.

ORAL ARGUMENT OF EARL MeBEE, ESQUIRE,
ON BEHALF OF RESPONDENT

M R . McBEE: Mr. Chief Justice and members of the

Court: The First suggestion I would like to make is that the
doctrine of Alabama, that is the principle decided by the 
Supreme Court of Alabama, relating to the Mine Workers doctrine 
relates back to the very date that this Court decided that case. 

At that time there was then pending in Alabama courts the case 
of Hacker, Greenwood v. Hacker, Hacker v. Greenwood, and there 
was also pending in that case the Hotel and Restaurant Employees 
versus Greenwood, In that case the hacker and others had been 
convicted of civil contempt. The Supreme Court of Alabama 
held that since the picketing and the actual strike was all 
matters for local purpose and was legally conducted it did 
involve First Amendment freedom of assembly and speech and that, 
therefore,, the lower court was erroneous in granting the injunc­
tion. They dissolved the injunction. They then, using the



49

the civil contempt convictions were required to Hotover. s

the closing paragraph of the opinion was that in w.ew of the
United Mine Workers case the right of the Greenwoods or the 
state to proceed in criminal contempt was not in any way impaired 

by that decision.

again, and we do not find that that case in any way militates
against the doctrine that we have said in our briefs >'are. implied 
Dy it. As a matter of fact, we are more convinced, and we would

invito The Court to read the case in order* that we might be • 
certain that our construction is not biased, but 'as we read

ordinance in the Fields case —  and that, by the way, was a 
pure speech question involving the holding of a meeting, -hie 
requirement of the ordinance was that before a meeting could be 
held in the City of Fairfield a permit from the Mayor must be 
procured.' Fields was holding a meeting or Planned to hold a 
meeting and did not procure a permit. A temporary injunction 
was issued on that ground. The court said they were not going 
into the question of the validity of the ordinance eitner on 
its face or other ways because they couidn®t reach it,.and they

Now we have read since the matter of the City of
M  case has been brought up. We have read that case

took tne M M C P  case and referred to it. They cited the mine



50
Workers case* They cited White v. Kansas, and they concluded 
that as a general rule that an unconstitutional statute that is 

an absolute nullity may not be the basis of any right under 
these procedures. However, when an injunction has been issued 
and without taking the normal means of protecting that injunc­
tion by a motion to dissolve or discharge, the defendant may 
not in criminal court in an appeal or certiorari from criminal 
contempt raise the question of its unconstitutionality on 
appeal from a judgment of conviction in a contempt case or in 

that case writ of habeas corpus or certiorari.
MR. JUSTICE PORTAS:— Mr. 'MoBee, is this the Fields case?
MR. McBEE: This is the Fields case: yes, sir.
MR. JUSTICE FORTAS: In Alabama?
MR. McBEE: Yes, sir.
MR. JUSTICE FORTAS: Give me the Alabama citation.
MR. McBEE: The Fields case is 143 Southern 2d. p. 177.
It is interesting to note that in citing the cases 

that they relied upon in support of that doctrine they cited 
the case of the United Mine Workers, they cited White v. Kansas, 
they cited the People v. Bouchard, an old New York Supreme Court 
case, in which case the court there said that they would not 
consider the unconstitutionality of an ordinance or act the 
basis of an injunction as Invalidating the ordinance or the 
injunction or making it erroneous or making it void at least.

It would be erroneous, of course, upon proper appeal from a
)



motion made to dissolve or from a hearing on the merits of the 
injunction case.

MR. JUSTICE STEWART: Now in the Fields case the
Alabama Supreme Court did rule on the constitutionality of the 
ordinance.

MR, McBEE: No, sir.
MR. JUSTICE STEWART: They said we cannot say that it

is unconstitutional on its face.

we can't

MR. McBEE: Yes, sir*. Then they proceeded to say that
reach that because of the fact that it is a collateral

attack.
MR. JUSTICE STEWART; They did reach it when they 

said we cannot say it is unconstitutional on its face. If that 
is not reaching it what is it doing?

MR. McBEE: I construed that as meaning they were
saying they did not get to that question because they immediately 
went into the Mine Workers case and did cite and rely upon 
Bouchard and other cases in which the unconstitutionality of 
the act, of the ordinance does not render the injunction void.

MR. JUSTICE STEWART: Now is your argument that you
are now making, Mr. McBee, this, that the application of the 
Alabama Supreme Court and the Mine Workers rule in the present

case was no change?
MR. MeBEE: That is true. That is the concept of our

case. Now, getting over to the question of the Mine Workers



52
doctrine and its limitations, the first suggestion has been 
made that in re Green militates against that case. As I read 
in re Green, the device of that case was that this lawyer was 
convicted of criminal contempt, that is constructive contempt 
without being afforded a hearing. He tried to defend his case 
but was deprived of that privilege. As I understand the opin­
ion which was written, I believe, by Justice Douglas, his comment 
was made about the Mine.porkers case but the pivotal question 
was that there was no hearing, and I believe Mr. Justice Douglas 
said that that illustrated the device of the whole thing that 
It is the pre-emption doctrine, because you couldn't tell there 
was any pre-emption doctrine involved or not inasmuch as they 
never reached thatT question, never gave the court a chance to 
determine that question. Mr. Justice Harlan, 1 believe, in a 
concurring opinion in that case did say.that he did not feel 
that that case militated against the Mine Workers doctrine and 
did, 1 believe, conclude that the Mine Workers doctrine holds 
that if even the federal courts were barred by the acts of 
congress from issuing an injunction in that case, that never­
theless the duty of the defendants to abide by and perform the 
injunction at least while it was in effect and until it was 
dissolved or discharged or some other method used to dislodge it 
should be obeyed. Failure to do so would constitute criminal 
contempt. That we feel is the holding of that, case clearly.

There has been much said about the vagueness of the



injunction. Actually the Injunction does say.very specifically 

that the acts here and above designated or referred to in the 
bill of complaint are the acts that are related to and enjoined 
and specifically referred to. Among those acts related to in 
this connection were mass picketing and mass street parades, 
mass demonstrations, allied demonstrations without a permit.
We have in 4(c) of the bill of complaint a situation where 
similar to those which developed on April 12th and April 14th —  

this is Good Friday and Easter Sunday parades we say those 
particular demonstrations the forerunner of those particular 
demonstrations were set forth Tn the bill of complaint. Mow 
if there be any question about what type of injunction was 
issued, what It means, and what it was required to do, we say 
that under the authorities the requirement is that the court 
or the courts In instruction refer back to the original bill 
of complaint and read the injunction in the light of the original 

complaint.
MR, JUSTICE BLACK: Mould you mind telling as briefly

as you can whet action took place involving the defendants.
MR. McBEE: Yes, sir. Involving the defendants::,

e x a c t ly  what took p la c e  the injunction was issued on the evening 
of the 10th of April. On the morning of April 11th It was 
served upon the defendants. At that time they pronounced txiat 

they would not abide by i t .

MR. JUSTICE BLACK: Where did they say that?



MR, McBEE: The first time they said it was at the
time the injunction was served upon them. The second time they 
said it was when they had a press conference about 11:00 o'clock 

or thereabouts on the morning of the 11th of April at which 
time they said they will march tomorrow. Saturday, Sunday, 

Monday, and on.
MR. JUSTICE BLACK:" Did they say how many would march?
MR. McBEE: They didn’t specify how many would march.

No, they did not —  but they would march. They had a meeting 

then on the night of the 11th --
MR. JUSTICE BLACK: TIow many did march?
MR. McBEE: In the Easter March there were approxi­

mately 1,500 to 2,000 on which day the entire streets and side­
walks and everything was covered from side to side. On the 
march which occurred on the.12th of April most of the time they 
were on the sidewalks using each sidewalk but sometimes the 
street, but in the main on the sidewalks,on the April Good 

Friday morning.
MR, JUSTICE BLACK: Did they claim to have a consti­

t u t i o n a l  right to march with that many people blocking the

streets?
MR. McBEE: The only constitutional right they claimed

was when they came into court and said you are violating our 
constitutional rights, when they filed the motion to dissolve 

the injunction after the act had been committed. They committed

54



5 5

the Good Friday marches and also the march on the 14th,, Easter 
Sunday, before ever making any effort at all whatsoever to 

obtain any sort of relief or permit,
MR. JUSTICE BLACK: You say they marched these days?
MR. McBEE: They marched actually two days, the 12th

and the 14th.
MR. JUSTICE BLACK: At what time of day?
MR. McBEE: On the 12fch, they didn't give very defi­

nite information, but they let out information they were going 
to march at noon. However, in actual fact they did not march 
at noon but really marched at about 3^00 o'clock in the afternoon,

MR. JUSTICE BLACK: How many marched?
MR. McBEE: Well on one side of the street the evi­

dence is over 50 because over 50 were arrested, but also they 
did not arrest all of them because they couldn't get to all of 
them. They were on two sides of the street. Altogether the 
evidence is there was some thousand involved in the entire 
proceeding.

MR. CHIEF JUSTICE' WARREN; Mow those were the people 
who gathered —  those weren't the people who marched on the 
12th, were they? I find in the statement there were about 50 

persons who marched on the sidewalk headed by Reverend Martin 
Luther King, Ralph Abernathy, and Fred L. Shuttlesworth. Is 

that wrong?
MR. McBEE: That is only a part. That group it is



true did march. But on the other side of the street the evi­
dence is, Mr. Painter, a witness for the city, testified that 
on the other side of the street the group outside the church 

were also siphoned into and they engaged In a march along with 
the other marchers * In other words, this technique of having the 
crowd and the marchers intermingled apparently had been followed 
in the other cases in movements in other situations*

MR. CHIEF JUSTICE WARREN; I suppose if they had a 
crowd they would have to go home, wouldn't they? Is that a 
march when a crowd went home?

MR. McBEE: Mr. Chief!.Justice, they joined in and
went with the group. They were engaged in heading, so they 
said, to the City Hall, That Is where their objective was and 
they were going in that direction at the time the arrests took 
place.

MR. CHIEF JUSTICE WARREN; Where is it in the record 
the number of people who were in the march? Not the people who 
had been assembled who were going home, but how many people were 
in that march?

MR. McBEE: I believe the testimony of Inspector Haley
was that there were approximately 50 or more than 50.

MR. CHIEF JUSTICE WARREN; Where do we find it in 
the record?

MR. McBEE: They said at least 50 because they arrestee

that many.



ence from what you have been telling us about the 1,500 assembled 
MR, MeBEE: May it please the Chief Justice, I didn't

refer to 1,500 on that day,
MR. CHIEF JUSTICE WARREN: How many were there? Just­

ice Black asked you how many there were. Can’t you tell us? As 
the record.shows that is all there are,

MR. MeBEE: It depends upon which parade you are
discussing. Mow as to the Good Friday parade, the testimony 
of Inspector Haley was that at least 51 were in that parade 
because that many were arrested-.

MR, CHIEF JUSTICE WARREN: All right,
MR. MeBEE: But they didn’t arrest them all. Now on

the Good Friday parade —
MR, CHIEF JUSTICE WARREN: Where were those 50

walking? Were they in the street blocking traffic or were 

they walking along the sidewalk?
MR. MeBEE: The 50 basically were on the sidewalk

and I believe the others on the sidewalk too. They were on 

the other side of the streets
MR. CHIEF JUSTICE WARREN; Now has your Supreme Court 

ever determined whether it is a violation of this ordinance to 

walk along the sidewalk?
MR. MeBEE: No, sir. The Shyttlesworth case which 

the .Court of Appeals had ruled upon is now before the Supreme

MR, CHIEF JUSTICE WARREN: That is a lot of differ­



Court

it ai3pl3.es to the sidewalks or the streets?
MR. McBEE.: No. they have not. That ia correct, yes.

MR. CHIEF JUSTICE Wi'RRSU: Whey haven’t ruled whother

sir.
MR. CHIEF JUSTICE WARREN*. Then your ■statement is

reduced to this that on this occasion there were "approximately 

30 —  you said not less than 50?
MR. McBEE: Hot less than 50 because they arrested

that many; yes, sir.
MR. CHIEF JUSTICE WARREN: 111 right. Is there any

evidence there* was any great number more than that?
MR. McBEE: Not on that side of the street I don’t

believe; no, sir.
MR. CHIEF JUSTICE WARREN: Was there any great number

marching on the other side of the street?

MR. McBEE: Yes, !

MR. CHIEF JUSTICE

MR. Mcl Ei : The ts

MR. CHIEF JUSTICE

HR. McBEE: X? ;t <2 p  J X i 'w  0 C 1 ,

MR. CHIEF JUSTICE

MR. McBEE: He sa:

va one ... he said the. entire crowd was 8DO to 1, COO or sever;

hundred I believe he said.



that prompted that answer?
MR. McBEE: At page 207 of the record la where the

particular matter was discussed, Mow down near the middle of 
the page I believe this group was led by Reverend Martin Luther 
K in g , Mr, Abernathy, and Shuttlesworth as I recall, There were 
s e v e r a l  p e o p le  f o l l o w i n g  in this formation. As the group marched 
away from  the church in the direction of downtown a group of 
p e r s o n s  assem bled  along the sidewalk and the street and followed 
this procession. This procession consisted of several hundred.

Actually the whole procession was going as a group.
As the group came out of the church then the whole group of 
people assembled along the sidewalk and followed along behind 
them and I think you could describe it as one procession,

MR. CHIEF JUSTICE WARREN: Very well,
MR..McBEE: Now actually, the March -14th proceeding

in v o lv e d ,  and there are some pictures at page 210 I believe of 
the r e c o r d  in  which it !s! apparent that they were taking in the 
entire sidewalk of both sides and also the street. This is .a 
p r o c e s s io n  of some variously estimated from 1,000 to.1,500 and 

2,000 people involved.
MR, JUSTICE CLARK: I do not sea it at 210.
MR, McBEE; At page 410 In the back of the record.

The first picture there indicates that the origin of the march 
was not the church shown in the picture but a block or two blocks

MR, CHIEF JUSTICE WARREN: Mot; what was the question .



.6
below that,

here as to what statement was made or claim that they had a 
right to march as they ware marching, that the Constitution of 
the United States gave them that right to march whether the 
city permitted it or not?

MR. MCBEE: No, sir, unless you might say that it
was done by the lawyers after they filed their motion to 
dissolve after the march took place but not prior to the marches 
no, sir. They made no such contention at least that I am aware 
of or that appears in the record anyway. It was this march that 
developed into a rather violent and belligerent mob and, as a 
matter of fact, the same thing is true of the march April 12th 
and the same thing is true of the prior march which is described 
in the bill of complaint. The crowd became unruly, became 
violent. At least one person was injured, A police officer 
was narrowly missed by a large brick, Damage to some city 
property occurred in that a three-wheeler was damaged, the 
radio antenna, I believe, and the windshield and some other 
things'possibly, and there were a number of persons arrested 
for resisting arrest. There, were a number arrested for asspsUl£ 
and battery in connection with throwing cf rocks and so on,
These crowds were solicited I think I should add.

MR. CHIEF JUSTICE WARREN: Are you sure who threw the

rocks, the people in the parade or somebody objecting to the

MR, JUSTICE BLACK: Mr. McBee, was there any evidence



si

parade?
.. 'McBEE: Mr. Chief Justice Warren, it was impossible

.‘s "
t o  c e l l  b e ca u s e  th e  who: th in g  d e g e n e ra te d  into a mob. Those

in th e  p arad e and e v e ry b o d y  e l s e  d e g e n e ra te d  into a mob. You 
cou lc?n *t tali', 'lie do say'this that the defendants in this case,
that is the obtitloners in this case, apparently took responsl-

\
bility because during the course of the afternoon according to 

the testimony of witness Painter the respondent Wyatt Tee 

Walker told him that he could control —
MR. JUSTICE BLACK: Told who?
MR. McBEE: Told witness Painter who was s witness

for the city that it was entirely possible for him and he 
could as a matter of fact guarantee that no one would get out 

of control. He could control this crowd of people, without 
any p rob lem  at all. He w ould guarantee i t .  The officer raised 
th e  q u e s t io n  th a t  engaged  in getting that many people together 
i n v o l v e d . in  a d e m o n s tr a t io n  w ould pose some problems of .possible 

v io l e n c e  and possible d a n g er  t o  people and to property, and 
a t  th a t  time Mr. Reverend W alker stated that he could control 
the crowd and he said if anybody got hurt it would be due to 
the officers and not his people. He could control them.

MR. JUSTICE BLACK: Due to what?
MR. McBEE; Due to the officers doing it and not Lb- 

people. That he could control them.
Now the evidence is that they did assemble outside



62
and I believe tho h J ltB e ss  Hayes who I s  one of the respondents, 
one of the p e t i t i o n e r s  h e r e , • t e s t i f i e d ,  that, he went down bo the 

ch u rch  for-th e  p u rp ose  o f  demonstrating, and also Mr. Shores 
exam ined th o  w itn e s s e s  with r e fe r e n c e  to a parade or a p r o e e s s id v  

Now th e  ordinance involved, and the question has been 

raised whether or not the ordinance involved involves anythin:'-, 
other than streets, parades or use of the sidewalks, but e s  a 

matter of fact the ordinance does involve passing parades, pro™ 
cessions or like demonstrations without a permit. In other

words it does involve parades and processions and things of 
that kind which conducted en masse and which, of course, ware 

the type of situation that was —
MR. JUSTICE BLACK; Parading where?
MR. MeBSE; The ordinance does prohibit engaging in

sponsoring, inciting mass street 'parades, processions or like 
demonstrations without a permit.

MR. JUSTICE BLACK: On the public streets?

MR, McBEE: Yes, sir,
MR, JUSTICE STEWART: It says on the streets or other

public ways of the city.
MR. McBEE; That is right--public ways.
MR, JUSTICE BLACK: Did it try to prohibit parades

properly controlled by paraders?
MR. McBEE: No, sir, we made no effort to do that,

never



63

p i c t u r e s  o f  th e  E a s te r  p a ra d e  o r  some o t h e r  p arad e?

MR-. McBBE: Those a re  the Easter parades yes, sir.
. MR, JUSTICE WHITE: These four?

MR. McBEE: Those four, and they were taken, by the
way, by a United Tress photographer.

MR. JUSTICE WHITE: Were these introduced in evidence?
MR. McBEE: Yes, sir,
MR. JUSTICE WHITE: And identified?
MR. McBEE: Yes, sir. They were in the contempt

case and introduced and part of the record.
MR. JUSTICE BREHNAW: Introduced by whom? Who was

c o m p la in in g ?

MR. McBEE: The exhibit was introduced by the city.
I m igh t sa y  it is an interesting thing that those exhibits 
w ere b ro u g h t to court by the respondents but we introduced 
them in e v id e n c e .  We simply say, may it please The Court, that 
me have more than a First Amendment freedom case. We say in 
the first place that it would be a travesty to have a situation 
where a group of people who start out for the obvious purpose 
of getting put in. jail —  during the various meetings that 
were held from time to time by this group on the evenings of 
the 11th and 12th and 13th they were constantly recruiting 
people to go to jail. Even in one instance on Friday night I 
believe Reverend Wyatt Tee Walker recruited a dozen or ao Negroes

MR, JUSTICE WHITS: Mr.'McBee, are these photographs



54
willing to die for me.

MR, McBEE: You mean why did he’ say that?
MR. JUSTICE BUCK: Where is that evidence?
MR, McBEE: Where is that evidence? That was the

testimony of Mr, Walter Johnson who is a representative of the

MR, JUSTICE BLACK: What do you mean by that?

United Press or the A.P. —  I am not sure —  from Mobile, The 
testimony Is repeated several times. It is on page. '203. 
During the discussions that occurred at these meetings, among 
other things the leaders were upset because they said that Mr. 
AX Hibier, who is a blind Negro singer, was discriminated
against because he was not arrested. They didn’t like it they 
said. In fact the"Reverend Martin Luther King and the Reverand 

.Abernathy - had planned to have a march or make their move as 
they called it on Thursday, Mr. Hibler had gone on Wednesday 
and they were going on Thursday, But since Mr. Hibler had not 
been arrested they wanted to give him another chance to be 
arrested. So they sent him out again on Thursday and they then
postponed their move, as they said, until Friday at which time 
they did make their move and the result was that they did get 

arrested,
During the course of these meetings Reverend Walker 

made the statement that he had something he wanted of the 
school population, he said Grades 1 through graduate school, 

Among other things, he said that the student population could



get a better education In five days in city jail than they 
could get in five months in segregated schools. There was all 
the way through these proceedings a very obvious effort to 
get people arrested. There was no effort made at all to obtain 
a permit from the City Commission. As a matter of fact, we 
argued in the court below, and we think the argument should be 
repeated here, that they didn't make any request because obviously 
they didn-*t intend and did not want to get a permit. They wanted 
to get arrested. That was the whole procedure and they Intended 
to get arrested in order to accomplish whatever purposes they 
felt were desirable for their ends and their goals to be arrested,

' MR. JUSTICE HARLAN: Whet bearing do you think the

exclusion of the proffer of proof mode by the defendants that 
they wanted bo show this ordinance was discriminator!ly applied, 
what effect does that exclusion of that proffer have on your case?

MR, McBEE; it is our contention and the court so 
ruled that that was an entirely collateral issue. He said if 
you would come in. here when you move to dissolve the injunction 
and you will show those facts then I can do something about it.
But you elected though to violate the injunction and as a result 
of that election you have closed my hands to this matter at this 
time. I can do it, he said, at the proper time, but X can't 
do it since you elected to violate the injunction defiantly as 
you did without asking me to do something about it. And so 

that would be a collateral attack.

65



MR. JUSTICE HARLAN: Suppose that presupposes an offer

had been offered to the fact the ordinance had been applied to 
exclude Negro parades and nevertheless they would have been 
required to obey that ordinance,

MR. McBEE: What they contended was —  I don’t believe
they contended it was discrimination applied so much as what 
they contended was that there had been no practice in the past
to obtain a permit through the city commission. I believe that 
was the burden of their argument. They wanted they said to 
prove that had not been the practice, However, though, the
ordinance specifically said and as early as April 5th Commissioner 
Connor -himself notified the Reverend Shuttlesworth by telegram 
that the proper way to proceed if they wanted to parade was to 
apply to the city commission. The court said he would be glad
to hear any evidence of anything that happened after the injunc­
tion occurred and the matter that was before the court was 
involved, but he did not feel that he would like to go into 
collateral Issues at this particular time. Now from the very 
beginning all the way through the case

MR. JUSTICE HARLAN: There was no claim in the proffer

of proof and notice of this injunction that this ordinance had

been disc torlly applied in the sense that Negroes were

refused permits?
McBEE: What they said was that they wanted to

prove —  as I recall it they put the City Clerk on the stand.



67

I believe, and asked him whether' or not it had been the custom 
of the city commission to issue injunctions. I believe that
was the tenor of the proof that was tendered.

FIR. JUSTICE WHITE; You mean permits?
MR. McBEE: That is right, permits. I used the wrong

word.
MR. CHIEF JUSTICE WARREN: Is it the fact that there­

tofore it was the practice of a subordinate police officer to 
give permission through the Commissioner of Police?

FIR. McBEE: I really honestly couldn’t answer that
question because I had been with the city at that time but a 

very short time and I was not aware of it.
MR. CHIEF JUSTICE WARREN; X know. But you have 

looked at it since. Can you tell us what the practice was before? 

MR. McBEE: No, sir,.I cannot.
MR, CHIEF JUSTICE WARREN: You would not say that was

not the practice though?
MR. McBEE: The only thing I do recall— I do have

some recollection of this--there was an application made or 
request made to the Mayor and to Commissioner Connor by Mr. 
Shelton who was the Ku Kites Klan officer or some official to 
have a demonstration on the city hall steps and I remember 
that they said no. That is all I can recall specifically about 

this particular matter. I do not know,
FIR. JUSTICE STEWART: Did they say no, or did they



say we don’t have the power fco^say.yeo or no— you have to go 

to the Commissioner?
MR, McBEE; Well there were three commissioners.
MR. JUSTICE STEWART: There are three commissioners,

and they are a majority.
MR, McBEE: They were a majority, yes, and they could

speak -~
There were three commissioners. 

And one of the commissioners

MR, JUSTICE STEWART:

MR. McBEE: Yes, sir.

MR. JUSTICE STEWART:

was the mayor?
MR, McBEE: Actually

this matter should" be brought '
is this. Much has been said about Commissioner Connor, but as 
a matter of fact Commissioner Connor nsd been defeated« i--u-
City of Birmingham had made a change in the form of government, 
I think possibly because of some of Mr. Connor’s extreme views 
I don’t know— I couldn’t say that. But at any rate there bao 
been a change of government and a mayor-council form of govern­

ment had been installed.
KF. JUSTICE STEWART: When did that happen?
' R, McBEE: That had happened approximately a fan 

months before and, as a matter of fact, the newly-elected off • 
cars, the mayor and council, had been electee. At that par­

ticular moment the only thing which prevented them from tsk:U



office was the question at law which was being determined by 
the court whether or not they were required to go into office 
immediately or whether they had to wait a period of time before

they could take over.
MR. JUSTICE STEWART: So you are not suggesting that

when they went to Mr. Connor they were applying to- a private
citizen?

MR. McBEE:. I don’t mean to say that. I was merely 
emphasizing that Commissioner Connor was on his way out as a 
power In the City of Birmingham,

MR, JUSTICE STEWART: Ponding the new officers?

MR. McBEE: Yes, sir.
MR. JUSTICE STEWART: And the election had already

taken place?
MR. McBEE: Yes, sir.
MR.' JUSTICE STEWART; The question was when the new

people take over and he was a holdover,
MR. McBEE: Actually they took over in May of 1963.
MR, JUSTICE STEWART: And this was in April.
MR. McBEE: This was in April. We tried this case

I believe the"23rd or 24th of April and they took office in 

the May following.
The Question was raised whether or not there is any

rule in the courts of Alabama giving precedence and' p:. ority 

to injunction hearings. We do have a Rule 47 which does provide



70
that they shall give priority to hearings of this particular Inin 

MR. JUSTICE BRENNANs Mr. MeBee, I notice at page 82
that the order is dated April 13th fixing April 22nd as the
date for the hearing on a motion to dissolve.

MR. McBEE; Yes, sir.
MR. JUSTICE. BRENNAN: Whatever happened to that?
MR. McBEE: I am glad you asked that question because

that is what I was going to say. What happened ipl this. When 
the convictions were handed down, that is in these particular

cases --
MR. JUSTICE BRENNAN: What date was that?
MR. McBEE: It was on the 29th of April I believe.

There was an understanding between the city council and counsel 
representing the parties that we would not prosecute those 
cases further, that is that case further, pending the decision
on this particular case. So that is the reason that it has no 
been brought up for hearing. It has not been prosecuted, end 
I might say since the Court of Appeals decision there has teen 
no effort whatever to enforce the 11.59. Of course —

JUSTICE BRENNAN: Have you substituted another

ordinance?
MR. McBEE: No, sir. because it has not been ruled

upon by the Supreme Court of Alabama yet-.
MR. JUSTICE BRENNAN: But you are not enforcing it.

MR, McBEE: No, sir, Some of these petitioners, the

CT



n

Reverend Shut'slesworth is conducting demonstration's night now 
in the City of Birmingham. He was- last week.

MR. CHIEF- JUSTICE WARREiT: What was the sentence in

this case?-
MR. MoBEE: They were sentenced to five days and $30,

I 'believe. That la' the maximum penalty, however, in the State 
of Alabama for- criminal contempt. However, I would like to 
call attention- to the fact that all of the defendants, those 
that made the defiant statements and those chat Just partici­
pated in.the actual marches and parades, were fined the same.

Thank you.
MR. CHIEF JUSTICE WARREN; Mr. Bveckenridge.

ORAL ARGUMENT OF J. M. BRECKEI'IRXDOE, ESQ.,
■OH BEHALF OF THE RESPONDENT

MR. BRE0XEMRI3GE: Mr. Chief Justice and Members of
the Court: the first thing I would like to comment on is.the
so-called Birmingham demonstrations of .1963 which have been 
nenssonec. I fonit know what connection they hare unless they 
imply chat the principles are so lofty that it- justifies a 
violation of a direct court injunction and decree, but I would 
assume that in any municipality like Birmingham demonstrations 
of this nature would be aimed at convincing the local government 

to change some law or some procedure,
How let us see what these defendants did. They amounted 

.to outsiders. They came into the City of Birmingham at e time



when the City of Birmingham had voted to change its form of 
government. Now who cast the deciding vote in that election?
The majority of the voters who voted for the new form of govern­
ment were Negroes and they voted overwhelmingly for the new
form of government. They had an election. Mr. Connor had run 

^ > © !A + V /e i|  Eou+Wet\against Mayor Bov.tfoer. Mayor Souther had won the election.
They started demonstrations the 1st of April 1963 and .under 
the law the new form of government took office on .April 15th.

T 4

MR. JUSTICE BRENNAN: What was the election day?
MR. BRECKENRIDGE: The election day was several months

before that because they had^fco have a change in qualifying the
candidates, I think probably seven or eight months, I don51 

have the exact date. But they had changed the form of govern­
ment. The council was qualified. They elected a council of 
nine and elected a mayor and they were to take office on April

15th. They stsrted these demonstrations when the old government
was in there. I don’t know what they expected them to do or 
what would be reasonable to expect. I don’t know whet the pur­
pose was. But they started at a time when it seemed to me 
reasonable to wait and not have started* but they started.

One of the witnesses testified they held over 40
meetings and never contended we have in any way interfered 
with the freedom of those meetings. This injunction forbid 
the city to do so. One of the witnesses in this case testifyo
that he had been to over 20 meetings and there nad been many



73
more mounting those campaign are had been useroation of

streets prior to the matters is Injunction if you will

possible disorders in th­ roats of Birmingham which might

orders and the fact that the court had authority t-o issue the 
injunction and hold the status quo and determine the validity 
of this ordinance or modify the injunction or give the right 
or require the city governing body to let them parade they chose 
not to follow that injunction. They chose to disobey it not 
because it was vague and uncertain or because they were enjoined 
they selected certain things and said in spite of these 
we will disobey. "We will march. We want everybody to come 
in and help us inarch. -find they did and the citation was oltnma 
fill, they had to do under Alabama law was to file a motion to 
dissolve the injunction and modify it and have a hearing in a 
few days. There was nothing urgent about these demonstrations, 
about the timing, because they should have waited until the rev 
government took place,

MR. JUSTICE STEWART: That was open to them —  it
was not up to you to decide how urgent it was, was it?

MR. BRECKENBIBGE: Well they have raised the quest, c...
The appellants have raised the question of the urgency of the 
situation and the timing of the demonstrations.



on Good Friday and Easter Sunday end those days come only once 
a year,

MR. BRECKENRIDGE: That is correct, and, of course,
they didn’t apply to the governing body for a march permit. I 
don’t know whether they would have got it or not. Since the 
new form of- government has taken place I don’t know of any 
denial to parade.

MR. JUSTICE STEWART: This was the old government
still in?

MR. BRECKENRIDGE: This was the old government. The
new government came in on April 15th and the old government 

refused to vacate, At the time of this case we had two govern­
ments in City Hall and evidence indicates that they had only 
one isolated instance —

MR. CHIEF JUSTICE WARREN: Mr. Breckenridge, whatever
became of the motion for dissolution?

MR. BRECKENRIDGE: The motion for dissolution I
believe Mr. McBee mentioned. This came first and they have not 
moved to set it down because this was appealed to the Supreme 
Court of Alabama, and permits for parades have been granted by 
the new form of government whenever they were asked for, and 
since the decision of the Alabama Court of Appeals we have 
elected not to prosecute anybody for parading under- this ordi­
nance without a permit awaiting the Supreme Court of £ la Dene.

To determine what I was saying about the situation,



one Instant situation t-.iat shows' the confusion in the situation 
.at City.Hall, Mr. Shore" was questioning Mr. Connor. He said.

t
“•You are Commissioner Connor?" The answer, "Uhuh." Mr. Shore 
said, "The former Commission of the City of Birmingham?"
Answer: "Yes. Did you say former Commissioner? I am Commis­
sioner." So you can see we had a time in Birmingham when this 
had to be handled delicately and properly. We think that the 
record shows that it was, that this was no First Amendment 
involved In this case* They had all the meetings they wanted 
to. They had all the hearings. They could have gotten•permits 
They did get permits after the new government came in. This 
same group asked for permits to parade and got them. We submit 
that there is no First Amendment freedom In this case.

MR, JUSTICE STEWART: 1 thought that was your oppon­

ents* claim.
MR. BRECKENRIDGE: We resubmit there is no First

Amendment case issue in this case. They claim there is as. I 
understand it. Our opponents claim there is a First Amendment 
by saying to modify United Mine Workers, to accept First Amend­
ment matters, so that they evidently assumed this case involved 
the First Amendment,

The First Amendment has never given people the right 
to usurp the streets. As to freedom of speech, Mr. Justice 
Douglas sold in Thomas v. Collins that no one may he required 

to obtain a license in order to speak and we certainly agree.

75



But once he uses the economic power which he lias over other- men 
and their jobs to influence their actions he is doing more 
than exercising•the freedom of speech protected by the Consti­

tution,
Now we take that- same argument, the same reasoning 

and say once they get in the streets and use the streets so as 
to inconvenience other people and to divert their use they are 
using more then pure speech, and this case involved the use of

the streets, 
statement of

Before this Court for the first time is a clear-cut 
s theory that we do not obey a law which we believe

unnecessary, which borders on "the right to the fundamental part 
of the governing of a society. It has that in there in the 
statement, and it has it put into practice in refusing to Obey

an injunction,
MR, JUSTICE BLACK: What statement is that? Where

Is that statement?
MR. BRECKENRIDGE: Complainants' Exhibit 2.
MR. JUSTICE CLARK: Where is it in the record?
MR. BRECKENRIDGE: Page 410 of the record says: "Just

as in all good conscience we cannot obey unjust laws, neither 
can we respect the unjust use of the words,,,"

MR. JUSTICE BLACK: Who testified to that?
MR, BRECKENRIDGE: This Is a statement put out by a

views release. It Is a written statement by M. L. King, Jr.,
P. L. Shuttlesworth, Ralph Abernathy, et al., for engaging in



peaceful desegregation demonstration':),

MR, CHIEF JUSTICE WARREN:. What was the practice in 
the City of Birmingham prior to this time for granting permits? 
You are the city attorney, Your colleague said he was not with 
the city at thie time. What was the practice? Did they all 
go before the commissioners or is it a fact that a subordinate 
polio® officer made the recommendation and the commissioner 

granted the permit?
MR, BRECKENEIDGE: Mr. Chief Justice, I don’t believe

there was any established practice. I would not deny that 
there were times when probably a permit was issued by the city 
cleric, .but if it ware issued it was issued without authority 
of law or ordinance,- and had our office been referred to we
would require it to be by the government as we required later 
that it be by the city council. In adopting the new city code 
we have changed that In that we have completely taken out many
ordinances that were plainly objectionable.

MR. CHIEF JUSTICE WARREN: That Is subsequent to tMs.
But do the records of your city show that' as a practice permits
were granted by vote of the city commissioners or was it done 
ex parte through the clerk and the police officers?

MR, BRECKEMRIDUE: I am going to have to say I have
not personally examined those records. I will say I believe 
they will show they were granted on approval of at least two 

commissioners by the city clerk rether than formal action in



the city commission meeting. Now that would ha my thought. I 
have not reviewed the records. But I do think that would he 
the result. Of course I still say that is not relevant to 
this case, that they could have come to the judge and say*. > 
look here, Your Honor, we ought not to have to go to the city 
commissioners to get these permits. That is invalid in law, 
if It is, and I don’t think it is, but it has been invalldly 
applied and we would like Your Honor to let us have the parados* 
Now Judge Johnson did that. He said you can take this parade 
from Selma to Montgomery, and there is any number of cases even 
in Birmingham' where the city -had been enjoined in enforcing 
certain ordinances in certain respects under the old city code. 
So I say it is absolutely immaterial in this case whether it 

was or was not a practice.
MR. CHIEF JUSTICE WARREN: You mean that the city

granted permits through the clerk without any reference to 
the city council conference at all over a long period of time 
and when these people came in they said we don’t have authority 
to do that. You got to go to the city council and have it 

determine it at some future date,
MR, BRECXSNRIDGE: Mr. 'Chief Justice, I would say

you arc correct if it was a prosecution of a violation of an 
ordinance. But if it goes to the higher prosecution for con­

tempt for violating a court order, a court order commands 
greater respect and must under our system of government command



greater respect than an ordinance. Now an ordinance, you can’t 
catch it except by being arrested, but in a court order the way 

it is chartered by the law for the purpose of protecting society 

as a whole. If this order is wrong come in and tell the judge, 

and that is what these esses say all through the country that 

you come to the judge and get it modified.

1 can give you one illustration, 1 got an order 
enjoining me eight or nine years back from playing night base­

ball in a certain park. The case was applied only to one corner 

of the park. We had a big lighted baseball diamond in another 

part of the park. I marched into the court and filed a motion 

for modification and got it. But it had been th© same thing 

as an invalid order. You just cannot under our system of law 

disobey a court order. 1 think this Court knows that more than 

any of us. But in administering the municipal affairs that is 

a matter so important that 1 personally don’t think this is for 

argument.

MR, JUSTICE FOBTAS: May I ask you a question about

Fields v. City of Fairfield. In that case, the court quoted 

from an earlier Alabama decision ex pert© National Association 

for the Advancement of Colored People, 265 Alabama, and in part 

quoted the Fields case. It says this: "It is only where the

court lacks jurisdiction in the proceeding or- where on the fees 

of it the order disobeyed was void or where procedural require­

ments with respect to citations for contempt in the language



80
were not observed or whore contempt Is not sustained that the 

order of judgment' would be..,.," That was a contempt case like 
this. But reading that It says where on. the face of It the 
order disobeyed was void. It is on the basis of that plus one 
of the statements you appeal this case that your adversary 
argues that avoidance of the order permits itself.

MR. BRECKENRIBGE: Let me answer that. A court order
is not void in my opinion if a court had jurisdiction to void 
the .issues and authority to issue the injunction. It may be 
defectivej it rnay be irregular —

MR. JUSTICE FORTAS: -Thr-t- U  nui ahnl iTl.Uj says;
f.

That is not what this says. This says where the court lacked 
jurisdiction or where the order was void.

MR. BRECKEURIDGE: Under the United Mine Workers -cede
if the court lacks jurisdiction certainly it can be disobeyed.

MR, JUSTICE FORTAS: That isn’t the question. The
question is whether Alabama law prior to its decision in this 
particular case permitted the use of the unconstitutionality 
of the ordinance, or the reconstitutionslity of the order as a 
defense to a prosecution in criminal contempt, and that is 
the question. Certainly it is a position that seems to be 
arguable. It may not be right but it is arguable it any rate 
on the basis of the language in the Fields case,

MR. BRECKENRIDGE: There is clearly a distinction
between civil and criminal contempt. One rule applies to civil -■



ol
MR,JUSTICE FORTAS: Mr*. Fields was criminal contempt —
.MR. BRBCKENRI-DOE: But under criminal, if the order

falls the contempt apes not follow, but now this order is not 
void,, as I sec it, in what the Alabama court means as far as 
criminal contempt the same thing as the United Mine Workers in 
lack of jurisdiction, lack of authority to issue.

MR. JUSTICE FORTAS: Fields was criminal contempt --
MR. BRECXENRIDOS: Fields was criminal contempt and

Fields nailed down was following the United Mine Workers, al­
though it did, as Mr. Justice Stewart says, make a remark that 
courts ought to take up some collateral issue for various reasons.

MR. JUSTICE FORTAS: What if the court made a remark 
that on its face this statute is not void. That is a remark of 

opinion, is it not?
MR. BEECKSNRIDGE: It did make that statement but it

stopped there. I would say its authority, but if you are going 
to say its authority for the position of appellants in this 
case, then you have to erase what follows that. And you can't 
do that.. If you take what follows after you 'see it is an affirma­
tive adoption of the United Mine Workers rule.

Thank you.
(Whereupon, at 12:00 o ’clock, noon, the argument was 

recessed, to reconvene at 12:30 o ’clock, p,m., the same 

day.)



CIOOM

AFTERNOON SESSION
(12:30 p.m.}

MR, CHIEF JUSTICE WARREN: Mr. Greenberg, you. may

resume your argument.
REBUTTAL ARGUMENT OF JACK GREENBERG, ESQ,,

ON BEHALF OF THE PETITIONERS
MR, GREENBERG: Mr, Chief Justice and may It please

The Court: In a minute I would like to reply to certain ques­
tions asked by Mr. Justice Portas and Mr. Justice Brennan as 
to Vi hat happened to that motion to dissolve that was set down 
for argument on the 22nd. It was never heard. The Judge ins-stec 
upon going ahead with the motion for contempt first. We said 
the motion to dissolve should be heard first before the motion 
for contempt but the motion to dissolve was not heard,.

MR, JUSTICE BRENNAN: And you never pressed it?
MR, GREENBERG: We never pressed it thereafter.
MR. JUSTICE WHITEi But he did set a time for hearing?
MR. GREENBERG: He set a time for hearing; yes.
MR. JUSTICE WHITE: Your opponent suggested there was

an agreement between counsel that the hearing would be on a 

certain date,
MR. GREENBERG: He set a time for hearing subsequently,.
MR, JUSTICE BRENNAN: He said at May 15th,
MR. GREENBERG: Yes, for some day in May actually.
MR. JUSTICE BRENNAN: No, he set it for the 22nd.



But on the 22nd both the contemptMR. GREENBERG: Yes.
and the motion to dissolve came up, They came up the same day.
Me said ours was filed first. We said it should be heard 
first that it was filed prior, and he said we are going to hear 

the contempt first,
Mr. Justice Fortas asked^about Fields v, the City 

of Fairfield and I would like to quote the language on page $2 

of our brief:
"However, notwithstanding this language, the Alabama 

Supreme Court did explicitly rule on the constitutionality 
.of the ordinance in Fields as we have pointed out above. 
Although its opinion is ambiguous on this score, its 
decision sustaining the ordinance and injunction on the 
merits while invoking the Mine Workers principle may moot 
plausibly he explained as a holding that constitutional 
challenges to the ’face1 of an injunction or underlying 
legislative authority for an injunction may be raised In 
the contempt proceedings, although other constitutional 

challenges may not.11
Therefore we claim that the merits of the Injunction was in 

disrepair,
Mr, Justice Black asked vjhether or not Mr, Claiborne 

and I would assume the same question applies to us whether we 
would agree that the municipality can regulate the streets anc

perhaps under some circumstances prohibit use of the streets, and



84
certainly we would concede that is the case and would not deny 
it, But wo think the law is clear it must be done under precise 
standards and must be done on the basis of equality.

There has been some mention, Mr, Justice Black, of the 
fact of the demonstrations. That, however, was never at issue 
below. The only thing at issue was was there a permit, In 
fact, the police testified that the marchers and the onlookers 
were separate. The police had cleared out the area. There was 
no vehicular traffic in the area. No' white people in the area. 
Any disorders which occurred, three or four arrests, were not
marchers. There was assistance if they needed it from the 
sheriff3s office and state police but they did not need it and

did not seek it,
MR. JUSTICE BLACK: Was there any effort made by the

defendants to get a permit either from a subordinate or from a 

superior officer?
MR. GREENBERG: Yes, there was. On a number of

occasions, on April 3rd and'on April fjth prior to this date 
efforts to obtain permits were met by consistent rebuffs including 
"Bull5' Connor when some of them came to them saying only two 
commissioners could grant the permit. They went to one of the 
other two, certainly that was proper, and said how do we go
about getting a permit to parade or picket. 
I will picket you right out of here; I will

"Bu1111 Cennor s a 
picket you to the

city Jail



85
MR. JUSTICE BLACK: Mho said that?
MR, GREENBERG: Commissioner Connor,
MR, JUSTICE BLACK: To which defendant?
MR, GREENBERG: To Mrs. Lola Hendricks who was a

representative of defendant Shuttlesworth and of. the Alabama 
Christian Movement for Human Rights and it so appears in the 
record and is described in that manner. She was accompanied 

by a Baptist minister,
MR. JUSTICE BLACK: What was his answer?
MR. GREENBERG: "You know you 

to picket in the streets of Birmingham, 
the city jail." .She not only asked for

will not gat a permit 
I will picket you to 

a permit . she also

asked how do 1 go about getting it.
Thank you,
{Thereupon, at 12:35 o ’clock* p.ra„, the argument was

concluded.}



c