LeFlore v Robinson Brief for Appellants in Opposition to Appellees' Petition for Rehearing En Banc

    In The
UNITED STATES COURT OF APPRAT.fi 
For The Fifth Circuit, En Banc

No. 28632

J. L. LeFLORE, et al.,
Plaintiffs-Appellants,

- v . -

JAMES ROBINSON, et al.,
Defendants-Appelleea.

BRIEF FOR APPELLANTS IN OPPOSITION 
TO APPELLEES' PETITION FOR 

REHEARING EN BANC

JACK GREENBERG 
JONATHAN SHAPIRO

10 Columbus Circle 
New York, New York

VERNON Z . CRAWFORD 
1407 Davis Avenue 
Mobile, Alabama

Attorneys for Plaintiffs-Appellants



Issues Presented

I N D E X

1
Page

Statement -------------------------------------- 2
Argument

I. The Court Properly Granted A Declar- 
tory Judgment With Respect to the 
Challenged Ordinances Because the Pend­
ing State Criminal Prosecutions Did 
Not Provide An Adequate Remedy For The 
Violation of Plaintiffs' Constitutional Rights and Would Not Have Provided A 
Forum For The Adjudication of All Plain­tiffs' Constitutional Claims ---------- 6

A. The Reversal and Demand For
Further Proceedings ----------  7

B. The Issuance of a DeclaratoryJudgment ---------------------  8

1. Section 14-11-----------  11
2. Sections 14-7, 14-13 and14-051------------------  14

II. The Panel Was Correct In Holding The Par­
ade Ordinance of the City of Mobile To Be 
Unconstitutional On Its Face Because of 
Its Failure to Provide For Prompt Judicial 
Review Initiated by the City of Any Denialof a Parade Permit----------------------  28

Conclusion---------------------------------------- 3 5

ft



Table of Cases
Anderson v. City of Albany, 321 F.2d 649 (1963) --------  25
Boyle v. Landry, 39 L.W. 4207 -----------------  4,6,11,19,26
Broughton v. Brewer, 298 F. Supp. 260 (S.D. Ala.

1969) ------------------------------------  12,16,17,18,25
Brown v. Louisiana, 383 U. S. 1 (1966) -----------------  2 3
Byrne v. Karalexis, 39 L.W. 4236 ---------------  5, 6 , 22,23
Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1967)--  25

' Carroll v. Commissioners of Princess Ann, 393 U. S.
175 (1968) ------------------------------------------  30

Cunningham v. Ingraham, 12 Race Rel. L. Rep. 53(N.D. Miss. 1966) ----------------------------------  25
Davis c. Francois, 395 F.2d 730 (5th Cir, 1968) ------  14,24
Dyson v. Stein, 39 L.W. 4231 ------------------------  5,6,22
Edwards v. South Carolina, 372 U.S. 229 (1963) -----  34
Freedman v. Maryland, 380 U. S. 51 (1965)----  28,29,30,31,34
Golden v. Zwickler, 394 U. S. 103 (1969) ---------------  11
Guyot v. Pierce, 372 F.2d 658 (5th Cir. 1967) ----------  25
Houston Peace Coalition v. Houston City Council,

310 F. Supp. 457 (S.D. Tex. 1970) -------------------  34
Hull v. Petrillo, ___ F.2d ___ (2d Cir. No. 35221,

. March 17, 1971) --------------------------------  11,21,34
Hunter v. Allen, 422 F.2d 283 (5th Cir, 1968) ----------  24»
Jackson v. Godwin, 400 F.2d 529 (5th Cir, 1968) --------  32
Kelly v. Page, 355 F.2d 114 (5th Cir. 1964) ---------  25

ii

Page

Kirkland v. Wallace, 403 F.2d 413 (5th Cir. 1968)--  12,17,24
LeFlore v. Robinson, 434 F.2d 933 (Nov. 12, 1970) ------  3



1 X X

Mapp v. Ohio, 367 U. S. 643 (1961) --------------------  34

Maryland Casualty Co. v. Pacific Coal & Oil Co.,312 U. S. 270 (1941) -------------------------------  H
Miranda v. Arizona, 384 U. S. 436 (1966) --------------  34
N.A.A.C.P. v. Thompson, 357 F.2d 831 (5th Cir. 1966)---  25
Perez v. Ledesma, 39 L.W. 4214-------------- 4,6,8,13,21,22
Quaker Action Group v. Hickel, 421 F.2d 1111 (D.C.Cir. 1969) -----------------------------------------  33
Quantity of Books v. Kansas, 378 U. S. 205 (1964) -----  30
Robinson v. Coopwood, 292 F. Supp. 926 (N.D. Miss.

1968), aff’d 415 F.2d 1377 (5th Cir, 1969) ---------  25
Samuels v. Mackell, 39 L.W. 4211----  4,6,9,10,11,15,21,22,27
Shuttlesworth v. City of Birmingham, 394 U.S.

147 (1967 --------------------------------------  30,31,32
Smith v. City of Montgomery, 251 F. Supp. 849 (M.D.Ala. 1966) -----------------------------------------  25
Strother v. Thompson, 372 F.2d 654 (5th Cir. 1967) ----  25
Terminiello v. Chicago, 337 U. S. 1 (1949) ------------  34
United States v. McLeod, 385 F.2d 734 (5th Cir. 1967)--  25
Washington Free Community, Inc. v. Wilson, 426 F.2d1213 (D. C. 1969) ----------------------------------  29
Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965)—  25
Women Strike For Peace v. Hickel, 420 F.2d 597 (D.C.

Cir. 1969) -----------------------------------------  29

Page

Younger v. Harris, 39 L.W. 4201— 4,6,8,9,10,11,15,19,21,23,26 
Zwickler v. Koota, 389 U. S. 241 (1967) -------------  11,14



Statutes
28 U.S.C. § 2283 (1964) ------------------------------  4

Code of Alabama:
Title 14. § 56 (1958 rev.) ------------------------  16

Mobile City Code:
§ 14-7-------------- ------------------------------- ig
§ 14-11 ------------------------------ 10.11,12.13,14,28
§ 14-13 --------------------------------- 10,11,14,18,28
§ 14-051--------------------------------- 11,14,14,28,34
§ 14-064-------------------------------------------- 18

§ 14-065-------------------------------------------- 18

iv

Page

1



In The
UNITED STATES COURT OF APPEALS 
For The Fifth Circuit, En Banc

No. 28632

J. L. LeFLORE, et al.,
Plaintif fs-Appe Hants,

-v
JAMES ROBINSON, et al.,

Defendants-Appellees.

BRIEF FOR APPELLANTS IN OPPOSITION 
TO APPELLEES' PETITION FOR REHEARING EN BANC

Issues Presented
1. Whether this Court should grant rehearing en banc to 

consider the decision of the panel that a federal court should 
not abstain, in the context of continuing civil rights demon­
strations, from granting declaratory relief with respect to 
the constitutionality of several municipal ordinances under 
which prosecutions against the demonstrators were pending and 
were threatened?

2. Whether this Court should grant rehearing en banc to 
consider the decision of the panel declaring the Mobile parade, 
picketing and unlawful assembly ordinances to be unconstitutional 
on their face ?



Statement

Plaintiffs-appellants (hereinafter referred to as the 
"plaintiffs") are representatives of a class of the black 
residents of Mobile, Alabama who have been engaged in peace­
ful protest activities aimed at securing equal rights for 
black people in Mobile. They filed suit on May 5, 1969 seek­
ing declaratory and injunctive relief on behalf of themselves 
and other members of their class "who have been subjected to, 
are presently subjected to, and who will be subjected to" the 
application of certain Mobile ordinances that are unconstitu­
tional on their face (R. 37).Three of the named plaintiffs and 
several hundred of the members of their class were alleged to 
have been arrested under certain of the ordinances that were 
challenged in the complaint, and it was alleged that the threat 
ened future enforcement of all of the ordinances deterred plain 
tiffs and their class "from exercising their rights guaranteed
by the First and Fourteenth Amendments to protest the denial of

1 /equal rights to the black community of Mobile" (R. 46). Plain 
tiffs further alleged that the defendants had arrested and were 
prosecuting them and the members of their class in bad faith 
for the purpose of discouraging them from, and punishing them 
for, exercising their rights of free speech, petition and as­
sembly (R. 40-42).

1/ The facts of this case are more fully set out in appellants 
brief, pp. 1-1 1 .

-2-



The district court held an evidentiary hearing on plain­
tiffs' motion for a preliminary injunction by affidavit only 
on May 9, 1969, and it denied the motion and dismissed the 
complaint on August 1, 1969. It held that the challenged 
ordinances were constitutional both facially and as applied, 
and that the arrests were made and the prosecutions were 
being conducted in good faith (R. 241-42).

On appeal a panel of this Court, in an opinion by Judge 
Goldberg, reversed the district court's judgment and remanded 
the case for further proceedings. LeFlore v. Robinson. 434 
F.2d 933 (Nov. 12, 1970). The Court held that, despite the 
fact thatthree of the named plaintiffs and many members of the 
plaintiffs' class were being prosecuted by the City of Mobile 
under several of the challenged ordinances, it was appropriate 
to consider plaintiffs' request for declaratory relief (434 

F.2d at 939). Proceeding to do so, it concluded that three out 
of the four challenged ordinances were unconstitutional on their 
face because of their unjustifiable deterrence of the exercise 
of First Amendment rights. The Court also held that since the 
record clearly presented a genuine issue of fact with respect 
to plaintiffs' claim that they were being prosecuted in bad faith, 
the dismissal of the complaint was erroneous (434 F.2d at 950). 
Accordingly, it remanded the case to the district court for 
the purpose of determining whether injunctive relief against 
the pending prosecutions of plaintiffs under the unconstitutional 
ordinances was necessary or proper, and whether plaintiffs were

-3-



entitled to injunctive relief against the future interfer­
ence by defendants with their constitutionally protected 
activities.

Although Judge Gewin concurred in the reversal and re­
mand on the ground that plaintiffs were entitled to a full 
hearing on their allegations of bad faith prosecution and 
harassment, he dissented from the granting of any declaratory 
relief with respect to the constitutionality of the challenged
ordinances. He argued that the anti-injunction statute. 282/
U.S.C. § 2283, barred the district court from granting either 
injunctive or declaratory relief because prosecutions under 
certain of the ordinances were pending against some of the mem­
bers of plaintiffs' class at the time this action was filed.

On December 6, 1970, defendants-appellees (hereinafter 
"defendants") filed a petition for rehearing en banc, and on 
December 21st the Court directed both sides to file briefs dis­
cussing the issues dealt with in the majority and dissenting 
opinions. On March 2, 1971, the Court directed the filing of 
supplemental briefs discussing the impact of the decisionsby 
the United States Supreme Court, announced February 23, 1971, 
in Younger v. Harris. 39 L.W. 4201, Boyle v. Landry. 39 L.W. 
4207, Samuels v. Macke11. 39 L.W. 4211, Perez v. Ledesma. 39

2_/ 28 U.S.C. § 2283 (1964) provides:
"A court of the United States may not grant an in­
junction to stay proceedings in a State court 
except as expressly authorized by Act of Congress, 
or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

-4-



L.W. 4214, Dyson v. Stein. 39 L.W. 4231, and Byrne v.
Karalexis. 39 L.W. 4236. With leave of the Court, plain­
tiffs' discussion of all of the issues raised is contained 
in this brief. As set forth below, plaintiffs submit that 
the rehearing en banc in this case is inappropriate because 
the panel correctly decided the issues involved and its de­
cision is not affected by the Supreme Court's decisions of 
February 23, 1971.

-5-



ARGUMENT

I

The Court Properly Granted A Declaratory 
Judgment With Respect to the Challenged 
Ordinances Because the Pending State 
Criminal Prosecutions Did Not Provide An 
Adequate Remedy For The Violation of Plain­
tiffs' Constitutional Rights and Would Not 
Have Provided A Forum For The Adjudication 
of All of Plaintiffs* Constitutional Claims.

The starting point in any consideration of the propriety 
of federal court interference with a state's enforcement of 
its criminal law is, of course, the Supreme Court's recent
decisions in six appeals involving this sensitive area of3/
federalism. Since the decision of the panel that is at 
issue here was rendered before these decisions, whether or 
not this Court grants rehearing en banc should depend in the 
final analysis on whether the decision of the panel properly 
applies the law as now elaborated by the Supreme Court. Plain­
tiffs submit that the panel's decision is not only consistent 
with the Supreme Court's decisions, but it properly reaffirms 
this Court's historic role in giving vitality to the First

3/ Younger v. Harris, supra; Boyle v. Landry, supra; Samuels 
v. Macke11, supra; Perez v. Ledesma, supra; Dyson v. Stein, 
supra; Byrne v. Karalexis, supra.

-6-



Amendment rights of civil rights demonstrators who seek redress 
of their grievances by peaceful protest activities. Accordingly, 
defendants' petition for rehearing en banc should be denied.
A. The Reversal and Demand for Further Proceedings,

Initially, we point out that no question has been raised 
as to the propriety of the reversal of the judgment of the 
district court and the remand for further proceedings. in 
their complaint plaintiffs alleged that all of the conduct 
for which the members of their class had been arrested was 
protected by the First Amendment and that the arrests and 
prosecutions were carried out in bad faith for the purpose of 
discouraging the exercise of plaintiffs' First Amendment rights 
(R. 40-42). They also claimed that after the arrests the dem­
onstrators had been held on unreasonably high bail and had been 
severely mistreated at the jail for the same purpose (R. 43-4 4) 

The evidence that was developed by affidavits in support 
of plaintiffs motion for a preliminary injunction strongly 
supports these allegations. The utter baselessness of all of 
the arrests, the unjustifiable interference with peaceful 
protest activities, and the substantial evidence of harassment 
of the persons arrested during their incarceration in the city
jail bespeaks a calculated effort to deter plaintiffs' civil 
rights activities.

All members of the panel correctly concluded that this 
evidence raised genuine issues of material fact which plaintiffs

-7-



were entitled to prove at a full hearing, and that the 
district court erred in dismissing the complaint (434 F.2d 
at 950; 434 F.2d at 951 (Gewin, J. concurring and dissenting)). 
For, as the Supreme Court has now made perfectly clear, pros­
ecutions brought in bad faith by state officials without hope 
of ultimate success but only for the purposes of harassment 
constitute "exceptional circumstances" which justify federal 
intervention in state court criminal proceedings and may even 
justify an injunction against the pending prosecutions.
Younger v. Harris, supra, 39 L.W. at 4203; Perez v. Ledesma. 
supra, 39 L.W. at 4225 (Brennan, J. concurring). In reversing 
the district court and remanding for a hearing to determine 
whether plaintiffs are entitled to injunctive relief against 
pending and threatened bad faith prosecutions, therefore, the 
panel's decision is completely in accord with the Supreme Court. 
Indeed, in their petition for rehearing defendants do not 
challenge this disposition of the case.

B. The Issuance of a Declaratory Judgment.
The basic issue raised by the petition for rehearing is 

whether it was appropriate for the court to grant declaratory 
relief with respect to the constitutionality of the challenged 
ordinances. Specifically, it is whether in a class action which 
seeks to prevent future interference by city officials with 
the ongoing exercise of plaintiffs' First Amendment rights a 
federal court is barred from declaring municipal ordinances to be

-8-



unconstitutional merely because some of the members of the 
class are being prosecuted under them.

The principles which govern this case are set forth 
Younger v. Harris, supra, and Samue 1 s v. Macke 11, supra.

In Younger, the Supreme Court held that a federal court 
could not enjoin the prosecution of the plaintiff under a 
state statute solely on the ground that on its face the 
statute violated the First Amendment. (39 L.W. at 4206). In 
the absence of proof that the prosecution was brought in bad 
faith or that the plaintiff would suffer injury above and 
beyond that which is incidental to every criminal proceeding, 
traditional principles of equity and of comity bar federal 
interference with state criminal proceedings (39 L.W. 4206).
In SamueIs, the Court held that where federal injunctive re­
lief with respect to a pending state criminal proceeding is 
impermissible, the same principles should ordinarily bar the 
granting of declaratory relief. Together, these decisions 
hold that a federal court may not grant either injunctive or 
declaratory relief with respect to state criminal statute 
under which the federal court plaintiff was being prosecuted 
at the time of the filing of the federal suit, in the absence 
of a showing that the state prosecution was undertaken in bad 
faith or unless there are other extraordinary circumstances.

In the present case, this Court granted declaratory relief 
with respect to four ordinances of the City of Mobile. It de- 
clared unconstitutional an ordinance which prohibited more than 
s-*-x persons from demonstrating before the same place of business

-9-



or public facility (§ 14-11), an ordinance which penalized 
the failure to disperse from an unlawful assembly (§ 14-13), 
and an ordinance which required a permit for parades and 
other uses of public places (§ 14-051), and it upheld the 
constitutionality of an ordinance making it unlawful to ob­
struct free passage of streets and other public places (§ 14-7). 
The issue of the propriety of such relief in light of Younger 
and Samuels is raised because there were at the time the fed­
eral suit was filed criminal prosecutions pending in the 
municipal court of the City of Mobile against some of the named 
plaintiffs and many of the members of their class under §14-7,
§ 14-13, and § 14-051. These prosecutions were based on the
demonstrations which took place on May 1st, 2nd and 3rd and

4/
which precipitated this suit. Although plaintiffs have argued 
that the record in this case clearly supports the inference 
that these were bad faith prosecutions (which would justify 
the grant of declaratory relief under Younger and Samuels), 
the panel did not decide this issue on the present record but 
instead remanded for a full evidentiary hearing. Thus, defend­
ants argue that in the absence of proof of bad faith prosecu­
tions it was error to grant declaratory relief because of the 
pendency of the prosecutions in the municipal court.
17 Three out of the six named plaintiffs were being prosecuted 

in the municipal court. J. L. LeFlore and Noble Beasley were charged with violating § 14-7 on May 1st (R. 131, 133), and 
Beasley and William Evans were both charged with two viola­
tions of § 14-13, arising out of their conduct on May 2nd 
and 3rd (R. 134, 136, 139, 140). Approximately 340 persons 
in all were arrested on May 1st, 2nd and 3rd (434 F.2d at 935) .

-10-



1. Section 14-11.
Since very different issues are raised by the grant­

ing of declaratory relief as to § 14—11, on the one hand, and 
§§ 14-13 and 14-051 on the other, we will discuss their treat­
ment separately. The Court’s declaration of the unconstitu­
tionality of § 14-11 was clearly proper and is not affected by 
the Supreme Court's rulings in Younger and Samuels because, as 
the panel pointed out, there were no prosecutions pending against 
any of the plaintiffs or the members of their class under this 
ordinance (434 F.2d at 939, n. 6). The propriety of a declara­
tory judgment in such a situation has been conclusively estab­
lished by the Supreme Court. Zwickler v. Kopta, 389 U. S. 241 
(1967); Golden v. Zwickler. 394 U. S. 103 (1969). A declara- 
tory judgment is warranted where the circumstances show that 
"there is a substantial controversy, between parties having ad­
verse legal interests, of sufficient immediacy and reality. . ." 
Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270,
273 (1941). And where the threat of prosecution under a state 
criminal statute is real, rather than imaginary or speculative, 
there is an actual controversy which justifies federal inter­
vention. See Golden v. Zwickler. supra. Younger v. Harris, supra. 
39 L.W. at 4202; Boyle v. Landry, supra. 39 L.W. at 4208; Hull 
v. Petrillo, ___ F.2d ___ (2d Cir. No. 35221, March 17, 1971).

The record in this case establishes a lively and contin- 
uning controversy between plaintiffs and defendants over the 
threatened enforcement of § 14-11 such as to warrant the

-11-



issuance of the declaratory judgment. At the time this action 
was filed, plaintiffs and their class had been engaged in 
continuous demonstrations and picketing protesting racial dis­
crimination for approximately one year (R. 64-65). Since 
September, 1968, they had engaged in regular picketing in the 
downtown business district of Mobile as well as the Municipal 
Auditorium. When they began the picketing of the auditorium 
they were instructed by the police that only six pickets were 
legally permissible at any one time at any public facility 
by virtue of § 14-11 (R. 65).

Plaintiffs had good reason, moreover, to fear that defend­
ants would enforce the ordinance and arrest them whenever their 
number exceeded six. Arrests of persons engaged in picketing
of the downtown area had previously been made whenever the5/
opportunity presented itself. Defendants did not deny the al­
legations concerning the threat of the enforcement of this 
ordinance against plaintiffs and the district court apparently 
found that the defendants had acted, at least in part, under the 
authority of the ordinance when they made arrests in front of

5/ Picketers had been arrested under the Alabama vagrancy 
statute,as a result of which suit was brought and the 
statute was declared unconstitutional by a three-judge 
district court (R. 65) . Broughton v. Brewer, 298 F.Supp. 
260 (S.D. Ala. 1969). Others had been arrested under the 
Alabama anti-boycott statute declared unconstitutional 
in Kirkland v. Wallace, 403 F.2d 413 (5th Cir. 1968) (R.65) .

-12-



the municipal auditorium on May 1st.
As Justice Brennan pointed out in his separate opinion 

in Perez v. Ledesema, supra:
"where no criminal prosecution involving the 
the federal parties is pending when federal 
jurisdiction attaches, declaratory relief 
determining the disputed constitutional is­
sue will ordinarily be appropriate to carry 
out the purposes of the Federal Declaratory 
Judgment Act and to vindicate the great pro­
tections of the Constitution," (39 L.W. at 4228) .

In view of the fact that the threatened enforcement of § 14-11 
was deterring plaintiffs and the members of their class from 
fully and effectively exercising their rights to picket and 
demonstrate in Mobile and that there were no state prosecutions 
pending under the ordinance at the time of the filing of the 
federal action, the panel was clearly correct in declaring it 
unconstitutional.

An additional reason justifies the issuance of a declara­
tory judgment with respect to § 14-11. The Supreme Court in 
Younger recognized that a federal court might properly intervene 
in a pending state criminal proceeding where the statute involved
6/ The court said: "It is not alleged that defendants did any­thing to hamper the plaintiffs' right of pure freedom of 

speech nor did the authorities interfere with the picketing in front of the auditorium which was conducted in accordance 
with the law. Only when the plaintiffs' speech activities exceeded the lawful number of pickets and obstructed vehicu­
lar and pedestrian traffic did the authorities exercise some 
permissible control over plaintiffs' conduct" (R. 241) (Em­phasis added).

-13-



was patently and flagrantly unconstitutional on its face with 
no conceivable constitutional applications (39 L.W. at 4206,
4209). In such a case, deference to state court proceedings 
is not required.

This is precisely the case with respect to § 14-11. The 
ordinance is not lacking in clarity on its face and no construct­
ion of it by state courts could eliminate its unconstitutional 
overbreadth. Cf. Zwicker v. Koota, 389 U. S. 241 (1967). 
Furthermore, an ordinance which is indistinguishable from 
§ 14-11 has already been held unconstitutional by this Court 
in Davis v. Francois, 395 F.2d 730 (5th Cir. 1968). To remit 
plaintiffs to state court criminal proceedings in such a sit­
uation would be to subject them to futile and burdensome preced­
ing which would only result in substantial delay in the recogni­
tion of a clear federal right.

2. Sections 14-7, 14-13 and 14-051.
Declaratory relief was also proper with respect to 

the other ordinances that were challenged by plaintiffs. Even 
though state criminal prosecutions were pending against members 
of plaintiffs' class for obstructing sidewalks (§ 14-7), parading 
without a permit (§ 14-051), and unlawful assembly (§ 14-13), 
the threat to their First Amendment rights could not have been 
eli-minated by their defense against these criminal prosecutions. 
Indeed, the threat of the successive application of the challenged 
ordinances to anyone who engaged in a broad range of civil rights 
activities in Mobile presents such "exceptional circumstances"

-14-



within the meaning of Younger and Samuels as to warrant at
least the granting of declaratory relief.

In explaining the nature of the irreparable injury 
that can justify federal intervention where state criminal 
proceedings are pending, the Supreme Court said:

"Certain types of injury, in particular 
the cost» anxiety and inconvenience of 
having to defend against a single crim­
inal prosecution, could not by them­
selves be considered irreparable in the 
special sense of the term. Instead the 
threat to the plaintiff's federally pro­tected rights must be one that cannot be 
eliminated bv his defense against a single criminal prosecution” (Emphasis added)
Younger v. Harris, supra, 39 L.W. at 4204).

Injunctive relief was improper in Younger only because:
"a proceeding was already pending in the state court, affording Harris an oppor­
tunity to raise his constitutional claims.
There is no suggestion that this single 
pr.Q.secution against Harris is brought in bad faith or is only one of a series of 
repeated prosecutions to which he will be 
subjected. In other words, the injury 
that Harris faces is solely 'that inci­
dental to every criminal proceeding brought 
lawfully and in good faith,' Douglas. supra, 
and therefore under the settled doctrine we 
have already described he is not entitled 
to equitable relief 'even if such statutes are unconstitutional,' Buck, supra,"
(Emphasis added) (39 L.W. at 4204-05).

The state prosecuti ons in this case were not isolated in­
stances of the dispassionate enforcement by the City of Mobile 
of its criminal ordinances. Rather, they must be viewed in 
the context of a concerted, year-long effort by the city to 
thwart the legitimate civil rights activities of Mobile's

-15-



black community by the enactment and enforcement of restrict­
ive laws. As early as May 1968, for example, the city reacted 
to a peaceful, nonobstructive march on the sidewalks to city 
hall to protest unequal municipal services and job discrimina­
tion by amending the parade ordinance on the very next day to 
require a permit for such a use of the sidewalks (R. 64). In 
September, 1968, when the black community began to picket the 
Municipal Auditorium, a huge facility with numerous entrances 
and exits located on a sixteen acre site in downtown Mobile, 
the police would not permit the use of more than six pickets 
at any one time (R. 45, 65).

7/During November, 1968, the N.O.W. organization began a 
"Black Christmas" campaign which sought by leafletting and 
picketing to persuade the black community from making Christmas 
purchases from white merchants in an effort to pressure them 
economically into nondiscriminatory hiring. See Broughton v. 
Brewer, 298 F. Supp. 260 (S.D. Ala. 1969). Despite the com­
pletely peaceful nature of these activities, the defendants 
made obvious attempts to put an end to them by arresting the 
demonstrators under unconstitutional laws. Thus, on November 
21, 1968, the N.O.W. workers who were picketing and distributing 
handbills in downtown Mobile were arrested and jailed under the 
Alabama "anti-boycott" statute (Code of Ala., Tit. 14, § 56 
(1958 rev.) despite the fact that this Court had declared the

2J Neighborhood Organized Workers.

-16-



statute to be unconstitutional on its face a month earlier on 
October 22, 1968. Kirkland v. Wallace. 403 F.2d 413 (5th Cir.
1968). The charges were eventually dropped, but not before 
the boys had spent many hours in jail. Broughton v. Brewer,
298 F. Supp. at 263, n. 3. On the same day three black stu­
dents who were also picketing and handbilling were arrested 
and charged with vagrancy, even though the arresting officers 
knew them to be students and residents of Mobile (298 F. Supp. 
at 264, n. 5). Although the normal bond amount on such a vag- 
■cancY charge was $300, bond for each demonstrator was set 
at $1000 as a result of a conference between the Chief of Police 
Robinson and the City Attorney, both of whom are defendants in 
this case. Two respected members of the black community who 
held property between them assessed in excess of $28,000 were un­
able, because of a series of delays and denials, to secure the 
release of the students for more than ten hours (298 F. Supp. at 264) . 
In a class action brought by the students, a three-judge federal 
court declared the vagrancy statute unconstitutional on its face 
in an opinion by Judge Rives on March 13, 1969. The court found 
it unnecessary, in view of this disposition, to grant injunctive 
relief against what the undisputed evidence showed to be calcu­
lated harassment of demonstrators by the present defendants 
(298 F. Supp. at 271) .

On April 25, 1969, NOW applied for a permit to conduct a

-17-



protest march to the Municipal Auditorium on the final day of
8/

the Junior Miss Pageant (R. 65). The city refused to issue 
a permit on April 28th, and on April 29th the City Commission 
enacted § 14-7 in obvious anticipation of demonstrations directed 
at the pageant. It was under this new ordinance that most of 
the arrests in the plaza across from the auditorium were made 
on May 1st.

Peaceful demonstrations that took place on May 2nd and 
May 3rd were aborted by the arrest of many of the demonstrators 
for unlawful assembly under § 14-13. After they were arrested, 
the demonstrators were confined in the city jail under over­
crowded and unsanitary conditions, and many of them experienced 
the same deliberate delays and difficulties in being released 
on bail as was experienced by the plaintiffs in the Broughton 
case (R. 29, 30, 67, 74-78, 81, 217). Many of those demonstra­
tors who were able to secure their release on bond were arrested 
once or twice again because of their participation in demonstra­
tions on succeeding days.

Finally, on May 6th the City Commission enacted an ordinance 
making it unlawful to loiter in certain places (§ 14-064) and an 
ordinance making it unlawful to fail to obey any order of a 
policeman who is acting in an official capacity (§ 14-065) (R.67,
68e, 68f). It is apparent that these ordinances were enacted 
in a last minute effort to forestall demonstrations that the city

8/ It should be noted that the proposed parade was to begin at 
3:00 p.m., and end at 5:00 p.m. The telecast of the Junior 
Miss finals, however, was not scheduled to begin until 6:30 p.m.

-18-



anticipated on the last day of the Junior Miss Pageant. In 
light of the baseless arrests made by the police in Spanish 
Plaza on May 1st under an ordinance enacted two days earlier, 
the enactment of these new ordinances augured similar police 
conduct on May 6th.

It was in this context that the plaintiffs, who include the 
president of the Mobile Chapter of the NAACP, the president 
of NOW, and an officer of the Non-Partisan Voters League and
Citizens Committee (R. 37-38), filed this broadly representa-

2/tive class action on May 5, 1969. Significantly, plaintiffs 
not only sought a declaratory judgment of the unconstitution­
ality of the various ordinances under which they were threat­
ened with prosecution, but they also sought a protective in­
junction which would guarantee in the future their right "to 
peacefully protest and publicize their grievances against the 
City of Mobile by marches, picketing, leafletting or assembling" 
(R. 48). Thus, they attacked the constitutionality of those 
ordinances within the city's arsenal that it was actually en­
forcing or threatening to enforce against plaintiffs in connect-

10/ion with their civil rights activities and they sought prospective
9/ An amended complaint was served and filed prior to the hearing on the preliminary injunction on May 9th (R. 36).
10/ In addition to the ordinances that were challenged, the City of 

Mobile has spun an elaborate web of ordinances which could be 
applied to penalize a participant in almost any kind of demon­
stration. See Appellants' Brief, pp. 12-15. Plaintiffs only attacked, however, those ordinances which the city was actually 
using or threatening to use against plaintiffs. See Boyle v. Landry, supra; Younger v. Harris, supra.

19-



assurance that they could continue to exercise their First 
Amendment rights free from official interference. For 
there is no doubt on this record that continued demonstrations 
would have been met by more arrests.

It is plain that plaintiffs and the members of their 
class could not obtain adequate relief for the actual and 
threatened violation of their constitutional rights as a result 
of the defense against the criminal prosecutions in the munici­
pal court of Mobile. The persons who were arrested represent 
only a small fraction of the members of plaintiffs' class who 
had participated, and who intended to participate, in future 
demonstrations. Even if the municipal court provided an ade­
quate forum for the adjudication of the rights of the persons 
who were arrested with respect to the specific conduct for which 
they were being prosecuted, these proceedings would have no ef­
fect in protecting them or the other members of plaintiffs' 
class from repeated future prosecutions for other conduct. The 
result of the criminal prosecutions would be, at best, an ac­
quittal of the demonstrators on the ground that the ordinance 
did not, or could not constitutionally, apply to the particular 
conduct in which they were engaged. But such a result would not 
provide the black community with any guidelines for its future 
civil rights activities. Whether or not the demonstrators are 
convicted, the city's unconstitutional ordinances would remain
intact and the threat of their application in the future would11/
continue.

11/ Although the demonstrators might be able to secure a ruling
-20-



In his separate opinion (concurring and dissenting) in 
Perez v. Ledesma, supra, Justice Brennan recognized plain­
tiffs' predicament:

"[Wjhere a criminal statute prohibits or seems 
to prohibit constitutionally protected conduct, 
and to that extent is unconstitutionally vague 
or overbroad . . . .  The opportunity to raise 
constitutional defenses at a criminal trial is 
inadequate to protect the underlying constitu­
tional rights, since in that situation a sub­
stantial number of people may well avoid the risk of criminal prosecution by abstaining from 
conduct thought to be proscribed by the statute.
Even persons confident that their contemplated 
conduct would be held to be constitutionally 
protected and that accordingly any state con­
viction would be overturned may be deterred 
from engaging in such conduct by the prospect 
of becoming enmeshed in protracted criminal 
litigation, and by the risk that in the end, years later, their confidence will prove to 
have been misplaced and their resources wasted.
This deterrence is magnified by the scope that 
vagueness or overbreadth gives for discrimin­
atory or capricious enforcement" (39 L.W. at 5225) .

The issue of the propriety of injunctive or declaratory 
relief in such a situation, however, was not presented by the 
cases recently decided by the Supreme Court. In both Younger 
and Samuels, the same persons who were plaintiffs in federal 
court were the only defendants in the state criminal prosecu­
tions at issue. In each case, moreover, the only conduct 
which was at issue in the federal action and which the federal 
plaintiffs claimed was constitutionally protected provided the

11/ (Cont'd)
on the facial constitutionality of the ordinance at an ap 
pellate level, it is unrealistic to expect such a determi 
nation would be made in the municipal court. See Hull v.
Petrillo, ___F.2d.___ (2d Cir. No. 35221, March 17, 1971)Slip op. p. 2029, n. 1.

-21-



basis for the state prosecutions. Thus, regardless of whether 
the state court ruled on the facial constitutionality of the 
statutes involved in these cases, the federal plaintiffs would 
have been able to secure an adjudication of their constitutional 
claims in state court upon the basis of which they would be able 
to govern adequately their future conduct. If the court ac­
quitted Harris of criminal syndicalism he would no longer be 
deterred from advocating the program of the Progressive Labor 
Party, which was the only conduct for which he sought vindica­
tion in federal court. Similarly, in SamueIs the state court 
provided an adequate forum for determining whether or not the 
particular advocacy with which the defendants were charged was 
protected.

In Perez v. Ledesma, supra. Dyson v. Stein, supra, and 
Byrne v. Karalexis, supra, the adjudication of the federal plain­
tiffs' claims in state courts would also result in the resolution 
of the only controversy between the parties. In Perez and Dyson 
the chief issue was whether the federal plaintiffs could validly 
be arrested and their property seized under a state obscenity
statute in the absence of a prior adversary hearing and judicial

12/determination of the character of the seized materials. The

1_2/ In Perez, the plaintiffs did not even challenge the statute
on the grounds of vagueness or overbreadth (39 L.W. at 4225). 
In Dyson, the plaintiff also challenged lawless police con­duct and bad faith prosecutions but these claims had no 
direct relationship to their attack on the constitutionality of the statute (39 L.W. 4232).

-22-



decision of this specific issue by the state courts, there­
fore, would be likely to eliminate any uncertainty for the 
f ocl rral  p l a i n t  i f  f n in t hr f u t u r e  o x e n - i  no of  t h e i r  r i g h t s .

And in Byrne the chief issue was the right of the federal 
plaintiffs to show the particular film “I Am Curious (Yellow)" 
at their motion picture theatre. Even though they attacked 
the constitutionality of the Massachusetts obscenity statute 
on its face, it was clear that the determination of whether 
or not this picture was obscene in state court would end the 
immediate controversy between the parties in the federal suit.

Where the federal plaintiffs have shown, as they have in 
the present case, the existence of a continuing controversy 
over the present and future exercise of their First Amendment 
rights which cannot be satisfactorily resolved in the context 
of particular state court criminal prosecutions, federal inter­
vention is both necessary and appropriate. The threat to the 
federal plaintiffs and the numerous members of their class, in­
cluding those who are being prosecuted in state courts, of re­
peated criminal prosecutions for constitutionally protected 
conduct under ordinances which are unconstitutionally overbroad 
clearly constitutes "extraordinary circumstances in which the nec­
essary irreparable injury can be shown even in the absence of the 
usual prerequisites of bad faith and harassment," Younger v. Harris, 
supra, 39 L.W. at 4206. The deference to state adjudication that 
is appropriate where those proceedings can assure an adequate 
vindication of constitutional rights is not warranted where

-23-



the federal plaintiffs seek to establish guidelines for the 
future unimpeded exercise of their First Amendment rights.
In such a case, the balance must be struck in favor of 
federal intervention, at least to the extent that a federal 
court may declare unconstitutional those laws which consti­
tute a deterrent to peaceful civil rights activities. The 
alternative of requiring Mobile1s black community to hammer 
out case by case the contours of their constitutional rights
to demonstrate in Mobile would inevitably result in these

12/rights being stifled.
The frequency with which this Court has in the past 

granted declaratory relief in the context of continuing civil 
rights demonstrations, despite the pendency of state criminal 
prosecutions, is a recognition of the compelling need for 
federal intervention. Time and time again this Court and the 
courts of this Circuit have recognized that the danger of 
stifling the protest movements that have provided so much of 
the momentum for peaceful social change is too great for fed­
eral courts to abstain from striking down unconstitutionally 
overbroad laws or from enjoining official interference with 
constitutionally protected conduct. See Hunter v. Allen, 422 
F.2d 283 (5th Cir, 1969); Kirkland v. Wallace, 403 F.2d 413
(5th Cir, 1968); Davis v. Francois. 395 F.2d 730 (5th Cir. 1968);
12/ We have previously pointed out the series of interrelated

overlapping and even conflicting regulations, in addition to 
the ones at issue here, to which the City of Mobile has sub­
jected the exercise of First Amendment rights. See Appel­
lants' Brief, pp. 12-5. It is clear that the First Amendment 
rights of plaintiffs and the members of their class would not 
survive for long if their only redress for the enforcement of 
a^l of these repressive ordinances lay in defending numerous municipal court prosecutions.

-24-



United States v. McLeod. 385 F.2d 734 (5th Cir. 1967);
Strother v. Thompson. 372 F.2d 654 (5th Cir, 1967); Guvot v. 
Pierce, 372 F.2d 658 (5th Cir, 1967) ; N .A ,A ,C .P . v. Thompson.
357 F.2d 831 (5th Cir, 1966); Kelly v. Page, 335 F.2d 114 
(5th Cir, 1964) ; Anderson v. City of Albany. 321 F.2d 649 (1963) 
Broughton v. Brewer, 298 F. Supp. 260 (S.D. Ala. 1969) (three- 
judge court); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 
1967) (three-judge court); Robinson v. Coopwood. 292 F. Supp.
926 (N. D. Miss. 1968), aff'd 415 F.2d 1377 (5th Cir, 1969); 
Smith v. City of Montgomery, 251 F. Supp. 849 (M. D. Ala. 1966); 
Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965); 
Cunningham v. Ingraham, 12 Race Rel. L. Rep. 53 (N.D. Miss. 1966) 

These cases stand as a testament to the historic role this 
Court has played in accommodating the rights of free expression 
with the legitimate interests of the states during a decade of 
social upheaval. Indeed, this Court is in no small measure re­
sponsible for the fact that the struggle of black people in the 
South for equal rights has been peaceful and has resulted in 
such progress. Unhappily, this struggle has not ended and it 
is as essential as ever that federal courts remain available 
to insure that First Amendment rights are untrammeled by re­
pressive state regulation.

But if the pendency of state criminal prosecutions is held 
to foreclose federal intervention under the circumstances of 
this case, then civil rights demonstrators will be for all 
practical purposes deprived of any remedy for the threat to the

exercise of their rights that is posed by unconstitutional
-2 5-



state laws. For there will rarely be a situation where no 
state prosecution is pending, and yet there is a sufficiently 
ripe case or controversy" to warrant the issuance of federal 
declaratory or injunctive relief. Cf. Younger v. Harris, 
supra, 39 L.W. at 4202; Boyle v. Landry. supra, 39 L.W. 4208. 
Policeman and prosecutors do not as a rule announce in advance 
the circumstances under which they will make arrests and com­
mence prosecutions. And in the absence of such an explicit warn­
ing, it is apparent that federal intervention would be con­
sidered premature. Younger v. Harrs, supra; Boyle v. Landry, 
supra. Thus, since the state authorities will inevitably win 
the race to the courthouse, federal relief would always be 
effectively barred.

We submit, therefore, that the irreparable injury that 
the plaintiffs and the members of their class would suffer 
in the absence of federal intervention in the present case is 
both 'great and immediate." The record clearly demonstrates 
that the City of Mobile will continue as it has in the past 
to use the enforcement of unconstitutional laws to thwart plain­
tiffs' legitimate civil rights activities. Even crediting the 
defendants with good faith in the application of these laws, it 
is apparent that federal intervention is the only means by which
plaintiffs can eliminate the threat to their federally protected 
rights.

We think that in its decision granting a declaratory judgment 
with respect to the challenged ordinances but remanding to the

-26-



district court for a determination of the need and propriety of 
a protective injunction, the panel carefully tailored its 
relief to take into account the interests of comity. It recog­
nized plaintiffs' interest in being able to exercise their 
rights in the future free from the threat of the application 
of unconstitutional ordinances, but it did not directly inter­
fere with the proceedings in the state court arising out of 
past activities.

In Samue1s v. Macke11, supra, the Supreme Court held that 
where a federal plaintiff asserts the same rights in federal 
court that he can vindicate adequately in a pending state crim­
inal prosecution, the disruptive effect of a declaratory judgment 
upon the state court proceeding is ordinarily unjustified (39 
L.W. at 4213). Where, however, the disruptive effect on state 
court proceedings is merely incidental to the protection from 
state interference of substantial numbers of people in the future 
exercise of their First Amendment rights, the balance must be 
struck in favor of the granting of federal declaratory relief.
In such a situation, the injury to these rights as well as the 
need for a forum in which the competing claims of civil rights 
demonstrators and the state can be fully aired and completely 
resolved far outweighs the policy for deferring to state adju­
dication .

-2 7-



II

The Panel Was Correct In Holding The Parade 
Ordinance of the City of Mobile To Be Un­
constitutional On Its Face Because of Its Failure to Provide For Prompt Judicial Re­
view Initiated by the City of Any Denial of a Parade Permit.

Although defendants seek rehearing en banc to consider
the correctness of the panel's decision as to each of the

13/
ordinances declared unconstitutional, they take issue with 
that decision specifically only on the grounds that it mis­
applied the principle of Freedman v. Maryland. 380 U. S. 51

14/(1965) to invalidate Mobile's parade permit ordinance. Since 
the decision invalidating § 14-11 and § 14-13 is clearly consis­
tent with the decisions of this Court and the Supreme Court and

15/is fully dealt with in our main brief, we turn to appellees' 
contentions with respect to the constitutionality of § 14-051.

13/ Appellees' Brief in Support of Petition For Rehearing, p. 1.
14/ On pp. 27-40 of their brief in support of rehearing, appellees 

present "our review of the current trend and the Supreme Court 
decisions apposite to the issue presented here" (App. Br. p. 
40) and on pp. 41—47 they quote extensively from current de­
cisions of this Court which bear "upon the particular mass- 
assemblies-in-the-public-places issue here presented" (App.
Br. p. 41). Nowhere, however, do they discuss the applica­
tion of the principles of these cases to either § 14-11 or § 14-13.

15/ See Appellants' Brief, pp. 24-27, 32-44.

-28-



Little can be added to the opinion of the panel invali­
dating the Mobile parade ordinance because of its failure to 
provide a procedure whereby the city has the burden of secur-
m g  speedy judicial review whenever it denies a parade permit.
The principle of Freedman v. Maryland, supra, that an expedi­
tious judicial determination is a constitutional prerequisite 
to the imposition of criminal penalties in any system of prior 
restraint of speech and that the burden of securing the determ­
ination must be borne by the authority seeking to bar the speech, 
is equally applicable to a system of licensing parades and other 
public demonstrations.

The decision of the panel recognizes that the public dem­
onstrations that are the essence of political expression can 
be as effectively deterred by cumbersome licensing procedures 
as they can by a flat prohibition. As Judge Skelly Wright has 
remarked, "Timeliness is essential to effective dissent. Delay 
may stifle protest as effectively as outright censorship."
Women Strike For Peace v. Hickel. 420 F.2d 597 (D.C. Cir. 1969); 
see Washington Free Community, Inc, v. Wilson, 426 F.2d 1213, 1218 
(D.C. Cir. 1969) (Bazelon, C. J., concurring and dissenting opin­
ion). And the Supreme Court has pointed out that:

16/ It is implicit, of course, that the city would only be 
obligated to seek a review of its decision in the event 
that persons seeking the permit wished to appeal the denial.

16/

-29-



"It is vital to the operation of democra­
tic government that the citizens have 
facts and ideas before them. A delay of 
even a day or two may be of crucial im­
portance in some instances" (A Quantity 
of Books v. Kansas, 378 U. S. 205, 224 
(1964) (Harlan, J., dissenting)).

The "heavy presumption" against the constitutional val­
idity of a system of prior restraints upon speech and other 
First Amendment conduct, Carroll v. Commissioners of Princess 
Ann, 393 U. S. 175, 181 (1968), can only be overcome by pro­
viding procedures whereby the denial of a permit or license 
can be judicially tested promptly enough "to minimize the 
deterrent effect of an interim and possibly erroneous denial 
of a license." Freedman v. Maryland, supra, 380 U. S. at 59.
The burden of obtaining the judicial review, moreover, must 
be borne by the government when it seeks to prohibit the exer­
cise of First Amendment rights. Otherwise, the expense involved 
in obtaining review may be beyond the resources of the permit 
applicants and the time required may render their application 
moot. Ibid.

In applying this principle to the licensing scheme for
parades and other demonstrations, this Court followed Mr.
Justice Harlan’s concurring opinion in Shuttlesworth v. City
of Birmingham, 394 U. S. 147 (1967):

"The right to assemble peaceably to voice 
political protest is at least as basic 
as the right to exhibit a motion picture 
which may have some aesthetic value. More­
over, slow-moving procedures have a much 
more severe impact in the instant case than 
they had in Freedman. Though a movie exhib­
itor might suffer some financial loss if he 
were obliged to wait for a year or two while 
the administrative and judicial mills ground

30-



out a result, it is nevertheless quite 
likely that the public would ultimately 
see the film. In contrast, timing is 
of the essence in politics. It is al­
most impossible to predict the political 
future; and when an event occurs, it is 
often necessary to have one's voice 
heard promptly, if it is to be consider­ed at all" (394 U. S. at 162-3).

Although the Supreme Court in Shuttlesworth did not find 
it necessary to reach the issue raised by Justice Harlan, it 
did, as the panel pointed out, assume that the Freedman prin­
ciple would apply to the parade permit granting process. The 
Court stated that the constitutionality of a parade permit 
ordinance "would depend upon, among other things, the avail­
ability of expeditious judicial review of the Commission's 
refusal of a permit" (394 U. S. at 155, n. 4).

It is clear that the Mobile parade permit ordinance does 
not measure up to these standards. Although the ordinance re­
quires the City Commission to act upon an application for a 
permit within five days of its filing and to notify the ap­
plicant of any denial of the permit within six days of filing,
there is no provision for obtaining any judicial review what-

17/soever of a denial of a permit. To this extent, the infirmity

17/ The application for the permit must be filed no less than 
10 days nor more than 30 days before the proposed date of the parade or demonstration. The ordinance provides for the granting of late applications upon a showing of good 
cause, but there is no indication of what constitutes "good cause."

-31



in the Mobile ordinance is the same as that noted by Justice 
Harlan in the Birmingham ordinance. Under Alabama law, there 
is no provision for speedy court review of the denial of a 
parade permit. Shuttlesworth v. Birmingham, supra, 394 U. S. 
at 161. The only remedy for an applicant who is denied a 
permit by the City Commission is to petition the Circuit Court 
of Mobile County for a writ of mandamus, and there is no 
guarantee that the court would act within any fixed period.
Id. at 161, n. 3. It is apparent, therefore, that the avail­
ability of effective judicial review is illusory, especially 
for the unaffluent groups which will most often have need for 
it.

The provision of "prompt, Commission—initiated judicial 
review" required by the panel Court will in no way interfere 
with any legitimate governmental interests of the City of 
Mobile. In addition to mandating expedited review "so that 
rights of political expression will not be lost in a maze of 
cumbersome and slowmoving procedures," Shuttlesworth v. 
Birmingham, supra, 394 U. S. at 163 (Harlan, J.* concurring), 
the practical effect of the requirement will merely be to shift 
the burden for obtaining the review from the permit applicant 
to the city government. Just as the state must bear a heavy 
burden in justifying any substantive decision to curtail First 
Amendment rights, see Jackson v. Godwin, 400 F.2d 529 (5th Cir. 
1968), so too it should bear an equally heavy burden to initiate 
the procedures that are constitutionally necessary to review

-32-



such a decision. With financial and legal resources far 
greater than those of the usual applicant for a permit, it 
is a relatively minor inconvenience for the city to go to 
court after a denial of a permit. Indeed, in A Quaker Action 
Group v. Hickel, 421 F.2d 1111 (D.C. Cir. 1969), the court 
affirmed the granting of a preliminary injunction against the 
enforcement of a regulation which required a permit for any 
demonstration to be held in front of the White House, and 
stipulated that the Government would have the burden of obtain­
ing a court injunction against any demonstration it wished to 
bar (421 F.2d at 1119) . Evidently this requirement imposed 
no undue hardship on the government, even in this sensitive 
area of Presidental security, for the court continued the in­
junction in effect after nine months. A Quacker Action Group 
v. Hickel. 429 F.2d 185 (D. C. Cir. 1970).

The record in the present case shows just how slight a 
burden would actually be imposed on the city. In the year 
and four months preceding the hearing on plaintiffs' motion 
for a preliminary injunction in the court below, only one permit
was denied in addition to the one denied to plaintiffs out of

18/a total of fifty-three applications (R. 195). Thus, the city

18/ A permit application dated March 27, 1969 was denied to the Faith Lutheran Church because of its failure to apply more 
than ten days in advance of the proposed date of the parade (R. 195, Exhibit Q).

-33-



would have been required to seek court review no more than 
two times over a period of sixteen months.

Appellees have not given any reason why the require­
ments of Freedman v. Maryland, supra, should not be applica­
ble to parade licensing schemes, either as a matter of prin­
ciple or of policy. They have only pointed out that § 14-051 
is adapted from a "national model parade ordinance" drafted 
by an association of municipal law inforcement officers.
But even the near universality of practices approved by law 
enforcement officers is insufficient to overcome a clear con­
stitutional mandate. See Miranda v. Arizona, 384 U. S. 436 (1966) 
Mapp v. Ohio, 367 U. S. 643 (1961).

The decision of the panel of this Court invalidating
§ 14-051 of the Mobile City Code, therefore, was correct and

19/rehearing en banc is unnecessary and inappropriate.

19/ Another constitutional infirmity of the Mobile parade 
ordinance, which the panel noted but did not reach, is 
found in the provision that authorized the granting of a 
permit only if the Commission determines that "the con­
duct of the parade is not reasonably likely to cause in­
jury to persons or property, to provoke disorderly conduct 
or create a disturbance" (R. 58). The exercise of First Amendment rights cannot be curtailed because of the hos­
tile reaction of others. See Brown v. Louisiana, 383 U. S. 
1 (1966) ; Edwards v. South Carolina, 372 U. S. 229 (1963) ; 
Terminiello v. Chicago, 337 U. S. 1 (1949). Other defects 
in the parade ordinance of constitutional magnitude are 
the requirement of a fee for the issuance of a permit(R. 58), see Hull v. Petrillo, ___ F.2d ___ (2d Cir. No.
35331, March 17, 1971) ("any fee imposed as a prerequisite 
to the exercise of the right to communicate ideas on the 
public sidewalks is an unconstitutional prior restraint 
upon the freedom of expression," Slip op., p. 2027) and 
the administrative requirement that the permit applicants 
agree to indemnify the City of Mobile for any liability 
which may result from the parade (R. 45) . Cf_. Houston 
Peace Coalition v. Houston City Council, 310 F. Supp. 457, 
461-62 (S.D. Tex. 1970).

-34-



Conclusion

For the foregoing reasons, appellees' petition for 
rehearing cn banc should be denied.

Respectfully submitted,

JACK GREENBERG 
JONATHAN SHAPIRO

10 Columbus Circle 
New York, New York

VERNON Z. CRAWFORD 
1407 Davis Street 
Mobile, Alabama

Attorneys for Plaintiffs-Appellants

-35-