Walker v. City of Birmingham Transcript of Proceedings
Public Court Documents
March 13, 1967

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Brief Collection, LDF Court Filings. Walker v. City of Birmingham Transcript of Proceedings, 1967. c319b153-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/996bfef4-56b0-4b01-88e9-3fe933dc4810/walker-v-city-of-birmingham-transcript-of-proceedings. Accessed August 19, 2025.
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m m gg*. TRANSCRIPT OF PROCEEDINGS Ws&iM*® ■ OF 3isAmm fcifl WYATT TEE- WAHCSa, MAlfTIILLOTHER KING, J ,..,, ) RALPH ABERIffiTIfY, A, D . KING, J / ^ . HAYES, ) L . FISHER, F . L . SHUTTLESWOS'IH AND ) „ji-T.';p o r t e r, .•/>//:•: ) *titloners -..." ”1 ... B i i YSiRR I - - No. 249 ) CITY CF BIRMINGHAM, a Municipal Corporation) of the State of ■ B B I I ■* • / ,. KSwMS ... ... V.v_j ■ -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