Shuttlesworth v Birmingham AL Brief for Petitioner

    I n  t h e

Ihiprrmr Court of tlw luitrt) §>Mrs
October Term, 1968 

No. 42

Fred L. Shttttlesworth,
Petitioner,

City op Birmingham, Alabama,
Respondent.

ON WRIT OP CERTIORARI TO THE SUPREME COURT OP ALABAMA

BRIEF FOR PETITIONER

Jack Greenberg 
James M. Nabrit, III 
Norman C. A maker 
Charles Stephen Ralston 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

Arthur D. Shores
1527 Fourth Avenue North 
Birmingham, Alabama 35203

Orzell Billingsley, Jr.
1630 Fourth Avenue North 
Birmingham, Alabama 35203

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioner



Opinions Below 

Jurisdiction ....

I N D E X

PAGE

1

2

Questions Presented ..................................... .................. -  2

Constitutional and Statutory Provisions Involved ..... 4

Statement

I. The Events of Good Friday, 1963, in Birming­
ham, Alabama ............................. —............. -........  5

II. The Proceedings Below ................................... ....  11

Summary of Argument ...... ..... .............. ......... .................  20

A rgument

I. Petitioner’s Conviction Must Be Reversed Be­
cause Birmingham General City Code §1159 
Was, as Written and in Force in 1963, a Fa­
cially Unconstitutional and Void Prior Re­
straint Upon Free Expression; and Petitioner 
Cannot Constitutionally Be Punished for Fail­
ing to Comply With Its Permit Requirement .. 26

II. Petitioner’s Conviction Must Be Reversed Be­
cause It Imposes Criminal Liability Upon Him 
Without the Fair Notice Required by Due Proc­
ess of Law ................................. ................ ...........  41



11

III. Petitioner’s Conviction Must Be Reversed Be­
cause §1159, as Construed by the Supreme 
Court of Alabama, Remains Unconstitutional 
for Want of Procedural Safeguards Adequate 
to Assure Against Censorial Abuse of the Li­

PAGE

censing Scheme ...................................................... 44

Conclusion ..........................................................................  59

T able of Cases

Amalgamated Food Employees Union Local 590 v.
Logan Valley Plaza, Inc., 88 S. Ct. 1601 (1968) ....... 31

Ashton v. Kentucky, 384 U. S. 195 (1966) ......................  31

Baggett v. Bullitt, 377 U. S. 360 (1964) ..........................  30
Baker v. Bindner, 274 F. Supp. 658 (W. D. Ky. 1967) 35 
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) ..36,45
Bouie v. City of Columbia, 378 U. S. 347 (1964) .......  42
Bridges v. Wixon, 326 U. S. 135 (1945) ................... 21

Cantwell v. Connecticut, 310 U. S. 296 (1940) ............... 26
Commercial Pictures Corp. v. Regents, 346 U. S. 587

(1954)................................................................ ................  27
Cox v. Louisiana, 379 U. S. 536 (1965) ...................27, 31, 32
Cox v. Louisiana, 379 U. S. 559 (1965) ..........................  42
Cox v. New Hampshire, 312 U. S. 569 (1941) .......3,17, 22,

30, 31, 32

Davis v. Francois,------F. 2 d ------- , 5th Cir., No. 25562,
decided May 28, 1968 .................................................... 31

Dombrowski v. Pfister, 380 U. S. 479 (1965) .... ...... 24, 31, 34,
36, 37



I l l

Edwards v. South Carolina, 372 U. S. 229 (1963) ..19, 20, 31 
Elfbrandt v. Russell, 384 U. S. 11 (1966) ................... 31

Freedman v. Maryland, 380 U. S. 51 (1965) ....29, 30, 34, 38,
40, 45,48

Gamble v. City of Dublin, 375 F. 2d 1013 (5th Cir.
1967)............................... .................................................. - 35

Gelling v. Texas, 343 U. S. 960 (1952) ....... ............ . 27
Gober v. City of Birmingham, 373 U. S. 374 (1963) ....5,21 
Guyot v. Pierce, 372 F. 2d 658 (5th Cir. 1967) ........... 35

Hague v. C. I. 0., 307 U. S. 496 (1939) .......................26, 31
Henry v. City of Rock Hill, 376 XL S. 776 (1964) .......  31
Holmby Productions, Inc. v. Vaughn, 350 U. S. 870 

(1955)................................................................. .............. . 27

In re Giles, 133 Ala. 211, 32 So. 167 (1902) ________ 46
In re Shuttlesworth, 369 U. S. 35 (1962) .......................5,21
Interstate Circuit, Inc. v. City of Dallas, 20 L. ed. 2d 

225 (1968)  ................................................. 16,23,26,31

James v. United States, 366 U. S. 213 (1961) ..............  42
Johnson v. New Jersey, 384 U. S. 719 (1966) ..............  42
Jones v. Opelika, 316 U. S. 584 (1942), vacated and 

previous dissenting opinions adopted per curiam 319
U. S. 103 (1943) ............................... ............... ...... 26-27,29

Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952) ..27, 31

Keyishian v. Board of Regents, 385 U. S. 589 (1967) ..31, 36 
King v. City7 of Clarksdale, 186 So. 2d 228 (Miss. 1966) 35
Kunz v. New York, 340 U. S. 290 (1951) ........ .......... 27,31

PAGE



XV

Lanzetta v. New Jersey, 306 U. S. 451 (1939)  ........ 41
Largent v. Texas, 318 U. S. 418 (1943) ...... ........ 26,29,33
Lassiter v. Werneth, 275 Ala. 555, 156 So. 2d 647

(1963)  .......... ..................... ..................................... 47
Linkletter v. Walker, 381 U. S. 618 (1965) ...................  42

PAGE

Lovell v. Griffin, 303 U. S. 444 (1938) ...........23, 26, 28, 31,
32, 34, 38,40

Marsh v. Alabama, 326 U. S. 501 (1946) ......... .............  27

N.A.A.C.P. v. Button, 371 U. S. 415 (1963) .......16,23,31,
34, 36

Niemotko v. Maryland, 340 U. S. 268 (1951) ............. 27

O’Connor v. Ohio, 385 U. S. 92 (1966) ...........................  42

Payne v. Spragins, 207 Ala. 264, 92 So. 466 (1922) .... 46 
Poulos v. New Hampshire, 345 U. S. 395 (1953) .......  32

Raley v. Ohio, 360 U. S. 423 (1959) ........ ........ ..... .......  42
Rodgers v. Meredith, 274 Ala. 179, 146 So. 2d 308

(1962) .......................... ....................................................  46

Saia v. New York, 334 U. S. 558 (1948) ...................... 27, 31
Schneider v. State, 308 U. S. 147 (1939) ....26,29,31,33,40 
Shirey v. City Board of Education, 266 Ala. 185, 94

So. 2d 758 (1957) ............. ........................ .......... .......... . 47
Shuttlesworth v. City of Birmingham, 373 U. S. 262

(1963) .... ............... ................................................ .......... 5,21
Shuttlesworth v. City of Birmingham, 376 U. S. 339

(1964) ............................... ......................................... ..... 5. 21
Shuttlesworth v. City of Birmingham, 382 U. S. 87

(1965) ........................................... ........... .............. 5, 21, 27,32



PAGE

State ex rel. Ducourneau v. Langan, 149 Ala. 647, 43
So. 187 (1907) .................................................................  47

Staub v. Baxley, 355 U. S. 313 (1958) ...........23,27,29,32,
34, 38, 40

Superior Films, Inc. v. Department of Education, 346 
U. S. 587 (1954) .............................................................. 27

Teitel Film Corp. v. Cusack, 390 U. S. 139 (1968) ..25,45,
48, 50

Tucker v. Texas, 326 U. S. 517 (1946) ......................... 27

Walker v. City of Birmingham, 388 U. S. 307 (1967) ..5,19,
20, 21, 36

Yick Wo v. Hopkins, 118 U. S. 356 (1886) ..................  48

Zwickler v. Koota, 389 U. S. 241 (1967)  ........ ..............  37

Other A uthorities

Ala. Code Ann., Tit. 7, §248 (Recomp. vol. 1960) ____ 47

Ala. Code Ann., Title 7, §1074 (Recomp. vol. 1960) .... 46

General City Code of Birmingham, §1159 ...............Passim

United States Commission on Civil Rights, 1963 Report 39



Isr the

mprtw (tart nf tljr $ttitp& States
October T erm, 1968 

No. 42

F red L. Shuttlesworth,
Petitioner,

City of B irmingham , A labama,

Respondent.

ON W RIT o f  CERTIORARI t o  THE SUPREME COURT o f  ALABAMA

BRIEF FOR PETITIONER

Opinions Below

The opinion of the Supreme Court of Alabama (A. 163- 
176) is reported at 206 So. 2d 348 (1967). The opinions 
of the Court of Appeals of Alabama, Sixth Division (A. 
88-154), are reported at 43 Ala. App. 68, 180 So. 2d 114 
(1965). The Judgment of the Circuit Court for the Tenth 
Judicial Circuit of Alabama, convicting petitioner Shut- 
tlesworth and sentencing him to 90 davs at hard labor, 
and to an additional 48 days at hard labor in default of 
$75 fine and taxable costs of $24 (A . 6-8) is unreported.



2

Jurisdiction

The judgment of the Supreme Court of Alabama was 
entered November 9, 1967 (A. 177-178). On January 27, 
1968, Mr. Justice Black extended petitioner’s time for filing 
his petition for a writ of certiorari to and including March 
8, 1968. The petition was filed March 7, 1968 and granted 
April 22, 1968. Jurisdiction of this Court rests on 28 
U. S. C. §1257(3) (1964), petitioner having asserted below 
and asserting here the deprivation of rights, privileges and 
immunities secured by the Constitution of the United States.

Questions Presented

Petitioner Shuttlesworth participated, on Good Friday 
in 1963, in an orderly march of 52 civil rights demonstra­
tors on the sidewalks of the City of Birmingham, Alabama. 
No permit was obtained for the march under Birmingham 
General City Code, §1159, pp. 4-5 infra, which forbids 
parades, processions or public demonstrations on the 
streets or public wavs of  the city without a permit issued 
by the City Commission, and which empowers the Com­
mission to deny a permit if “ in its judgment the public 
welfare, peace, safety, health, decency, good order, morals 
or convenience require that it be refused.” Shuttlesworth 
was subsequently prosecuted and convicted for violation of 
§1159. The Court of Appeals of Alabama reversed his con­
viction, holding inter alia that the Good Friday march was 
not a parade or procession required to be licensed under 
§1159 and that the ordinance was federally unconstitutional 
as a regulation for the licensing of. First Amendment 
activity without appropriate narrow standards to govern 
the licenser’s discretion. The Supreme Court of Alabama



3

reversed, construing §1159—for the first time, four and a 
half years after the events of 1963—in a fashion which 
excised the grants of discretion conveyed by such terms as 
“ peace,” “decency,” “ good order,” and “ morals,” and which 
purported to conform the standards for administration of 
permits under §1159 to those upheld by this Court in Cox 
v. New Hampshire, 312 U. S. 569 (1941), It held that peti­
tioner had violated the ordinance so construed, that the 
ordinance so construed was constitutional, and that petir'~ 
tioner’s conviction must be sustained. The questions pre­
sented here are:

1. Whether petitioner’s conviction is forbidden by the 
First and Fourteenth Amendments, in that §1159, as it 
was written and in f orce in 1963. was facially unconsti­
tutional, with the result that petitioner could not constitu­
tionally be required to comply with its command that he 
obtain a permit under it for the exercise of his rights of 
free expression.

2. Whether petitioner’s conviction is forbidden by the 
Fourteenth Amendment’s requirement of f air notice of 
potential criminal liability, where petitioner’s disregard of 
§1159 was squarely within the scope of conduct immunized 
from criminal prosecution by controlling constitutional de- 
cisions of this Court ; and where, in addition, the applica­
bility of §1159 to marches on the sidewalks of the City of 
Birmingham was announced for the first time by the Ala- 1 
bama Supreme Court in his case, four and a half years )  
after the march.

3. Whether^as-ftonstrued by the Supreme Court of Ala- 
bama, §1159 (remmns unconstitutional by force of the First 

"and" h'ourEeenm~A3nendments, that it ordains a scheme



4

of prior licensing of free speech activity, •without adequate 
administrative and judicial procedii ires f ̂ safeguard against
flan  rlcrnfrarc rvP aV in co

Constitutional and Statutory Provisions Involved

This case involves the First Amendment and Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.

It also involves the following ordinance of the City of 
Birmingham, Alabama:

General Code of the City of B irmingham ,

* It shall be unlawful to organize or hold, or to assist 
organizing or holding, or to take part or participate 

i, any parade or procession or other public demon- 
tration on the streets.or other public wavs of the city, 
nless a pejnnit thereiorhas been se<mipd~~frcnn _the 
ommission.
To secure such permit, written application shall be 

lade to the commission, setting forth the probable 
umber of persons, vehicles and animals which will 

be engaged in such parade, procession or other public 
demonstration, the purpose for which it is to be held 
or had, and the streets or public ways over, along or 
in which it is desired to have or hold such parade, 
procession or other public demonstration. The com­
mission shall grant a written permit for such parade, 
procession or other public demonstration, prescribing 
the streets or other public ways which may be used 
therefor, unless in its judgment the

A labama (1944), §1159



convenience require that it be refused. It shall be 
unlawful to use for such purposes any other streets 
or public ways than those set out in said permit.

The two preceding paragraphs, however, shall not 
apply to funeral processions.

Statement

I. The events of Good Friday, 1963, in 
Birmingham, Alabama.

Between^2:00 and 2:30 p.m, on Good Friday. April 12. 
1963, police officers of the City of Birmingham, Alabama, 
took up surveillance outside a Negro church on the north 
side of Sixth Avenue North, between Fourteenth and F if­
teenth Streets, in Birmingham (A. 18, 28, 36, 45, 53). A 
meeting was in progress in the church (A. 53). At 2:05 
p.m. the petitioner, Reverend Fred L. Shuttlesworth, ar­
rived in a car and entered the church (A. 46). Petitioner 
was well known to several of the Birmingham officers (A. 
46, 57).1

In addition to the officers who were “ detailed to the 
downtown area to work and watch for demonstrations that

1 Petitioner Shuttlesworth is, of course, a “ ‘notorious’ person in 
the field of civil rights in Birmingham,” Shuttlesworth v. City of 
Birmingham, 382 U. S. 87, 102 (1965) (Mr. Justice Portas, con­
curring). Toward such a notorious person, “ [t]he attitude of the 
city administration in general and of its Police Commissioner in 
particular are a matter of public record, . . . and are familiar to 
this Court from previous litigation. See Shuttlesworth v. City of 
Birmingham, 382 IT. S. 87 (1965); Shuttlesworth v. City of Bir­
mingham, 376 U. S. 339 (1964); Shuttlesworth v. City of Birming­
ham, 373 U. S. 262 (1963) ; Goher v. City of Birmingham, 373 
IT. S. 374 (1963); In re Shuttlesworth, 369 U. S. 35 (1962).” 
Walker v. City of Birmingham, 388 IJ. S. 307, 325 n. 1 (1967) 
(Chief Justice Warren, dissenting).



6

was to take place that afternoon” (A. 45), there assem­
bled in the vicinity of the church a considerable crowd of 
spectators (A. 44), including a number of photographers 
(A. 57). At about 2:30 p.m. (A. 46), the late Dr. Martin 
Luther King, Jr., Reverend Abernathy and petitioner 
Shuttlesworth led a group of Negro marchers from the 
church (A. 37, 73-74, 77). The group proceeded east along 
the north sidewalk of Sixth Avenue North for two and a 
half blocks to 17th Street, turned south for one block on 
Seventeenth Street to Fifth Avenue North, turned east 
again on Fifth Avenue North and proceeded for one-half 
block before they were confronted and surrounded by po­
lice and arrested (A. 37-38, 48, 53). In the middle of the 
1700 block of Fifth Avenue, a motorcycle officer drove his 
motor up to the sidewalk, stationed himself in front of the 
oncoming marchers, hollered “ Does anyone in this group 
have a permit?” and received no answer (A. 20-21, 25, 51). 
Other Birmingham police on motorcycles and in cars moved 
in, sealed the marchers off from the crowd of spectators, 
arrested the marchers, and loaded them into paddy wagons 
(A. 27, 51, 60-61). The officers had not asked where the 
marchers were going before they were arrested (A. 28).

The peaceful conduct of the marchers is not contested. 
Police and defense witnesses alike agreed that they were 
orderly (A. 43, 77). The marchers were in formation (A. 
20, 23, 37, 47, 53, 54), just walking along (A. 25-26, 30, 43). 
One police witness said that they were singing, clapping 
hands and shouting (A. 50). Another said that they were 
singing~whenlhey left the church, but he did not recall 
whether they continued to sing along the route of march 
(A. 37, 43). Still another officer heard singing, but reported 
no clapping or shouting (A. 20, 24, 26). A fourth officer



7

agreed that there was singing, but could not tell whether 
it came from the marchers or the spectators (A. 59).

The total number of marchers was 52 (A. 43, 47, 68, 69, 
71). They marched only on the sidewalk, except when 
they crossed streets at intersections (A. 20, 22, 24, 35, 38, 
43, 47, 50, 52-53). The police variously testified that the 
marchers “were marching two abreast . . . approximately 
forty inches apart” (A. 39; accord: R. 41-43, 47, 49 (two 
officers)), that they were “ about three or four wide” (A. 
53) “ and sometimes more” (A. 57), and that— at the final 
point where they were confronted and stopped by the po­
lice—they were “ m ired off, .in... fours arir! °b 'og” ( A 24; 
see also A. 22). Defense witnesses testified uniformly that 
the group proceeded in twos (A. 66, 67, 69, 71, 74, 77), 
and one police officer who observed the marchers all the 
way from the church to the point of arrest (A. 40) ex­
pressly denied that they ever formed themselves into fours 
or sixes (A. 42). The officer who described the group as 
aligned in fours and sixes at the point of arrest also indi­
cated that this formation extended “ all the way across the
sidewalk’' (A. 22), but there was no testimony relating 
to the proportion of the sidewalk occupied by the marchers 
at earlier points of the march, and no evidence that at any 

. point they inconvenienced other pedestrians or excluded" 
them from the use of the sidewalk. ^

As the marchers_ffi£ni..aiQnaL-Rie-..c;imw  ̂ speefatm-R
fell in behind them “ at. a distance” ( A 47).

“ Q. Did they follow- them, or did they actually join 
the group or formation? A . They were following 
them” (A. 48). — ~



8

The record is clear that the marchers and. the crowd of 
spectators always constitute^ distinet^g'l'oupsy,)the former 
in an orderly formation of 52, the latter tagging along some 
distance behind (A. 20, 23-25, 41, 43-44, 57). The specta­
tors—whose numbers were estimated at “ several hundred 
people” (A. 20), or “ over a thousand” (A. 48)—were in 
three locations: some stood on the inside (i.e., the build­
ing side) of the sidewalk where the marchers proceeded, 
at least at the beginning of the march (A. 44); others were
on the sidewalk across from the marchers (A. 20, 23, 25);\ w?still others were in the middle of the street (A. 25). The 
police attempted to keep this latter group in the middle 
of the street (A. 57-58). Nevertheless, there ismo evidence
that the street was blocked by the crowd of spectators at 

^any point, or that vehicles were obstructed. The one po- 
vliceman who spoke to the question said he never saw any 
blocking of the street (A. 22-23). |

The spectators were “ all black” (A. 23). They were 
described as “ following behind them [the marchers] sing­
ing, just loud comments and talking and all that, just 
generally a disorderly type crowd” (A. 48). Doubtless 
“ disorderly” in this context means “ disorganized” (see A. 
20, 23). since there was no evidence of disorderly con­
duct or disorderly acts of any sort on the part of the crow(l 
prior to the time of the arrest of the marchers.^Following 
the arrests, “ there was a lot of confusion going- "on^ ÂT 
27) and “ a lot of rock throwing” {ibid.), but the officer who 
testified to this said he did not have “ any idea who threw 
the rocks” (A. 29),^and he expressly declined to tie the 
rock throwing in with~the marchers, who were arrested 
ontyTor parading without a permit |(A. 30-31).
■ ------------------- - \

It is uncontested that the marchers had no permit. A
clerk in the office of the City Clerk testified that no permit 
for a parade or procession had been issued for Good



9 S±d KjjjzJU V

Friday, April 12 (A. 31-32). The record is silent as to 
whether any permit had been applied for. The clerk’s book 
contained records only of permits issued, not of applica- . 
tions made or denied (A. 32) .,..\The clerk testified, on the 
basis of seventeen years experience in the Clerk’s Office, 
that the sort of parades for which permits were customarily 
issued were held in the streets, not on the sidewalks, and 
that permits had not been issued for persons picketing, 
or simply walking on the streets, or tor groups assembling 
"and pFoceeding to board a bus:

“ Q. You have seen a number of these parades, 
haven’t you? A. Yes.

“ Q. Have you noticed a parade down the streets 
or on the sidewalk? A. In the streets.

“ Q. All in the street? A. Yes.
“ Q. And did you notice whether or not these 

parades would have bands or- vehicles in the proces­
sion? A. Yes.

“ Q. They would? A. Yes.
“ Q. And does one get a permit to picket, or just to 

parade? A. No.
“ Q. Does one get a permit to" just) walk down the

street? A. No.
— --- — ............... ....

“ Q. Do you know whether or not at time when a 
group of Boy Scouts or Girl Scouts were going to 
load up on the bus, whether or not they would have 
to get a permit to get to the bus?

“ The Court: That would be a legal question and 
she wouldn’t be competent.

“ Mr. Billingsley [counsel for petitioner] : The 
vital question is whether or not—what she has in 
the book there.

“ A. We have not issued any”  (A. 34-35).



1 0

Thereupon the trial court foreclosed further inquiry by 
petitioner’s counsel into the nature of the groups, assem­
blies and processions for which permiti~~Ea3~Beeia_lssueid 
( A. 3 5 ) ." “...~~...

Petitioner Sliuttlesworth’s own role in the unpermitted 
Good Friday march is the subject of some dispute. One 
arresting officer, who observed the marchers for only about 
a half block prior to the time when he stopped and arrested 
them, testified that at the point of the arrest, Shuttlesworth 
was in the marching group, several rows” back fromTEe 
front (A. 21, 24-25). However. Shuttlesworth. unlike the 
other marchers, was not arrested at that point (A. 27, 37, 
44, 51, 60-61, 68, 70, 71, 74, 78-79).2 ̂  All other officers who 
testified said that Shuttlesworth was not within the march­
ing formation, that he was not paired off in the line of 
march, but that he was seerT moving from place to place 
along the curb side of the group, accompanying the group, 
anTdalEInglo them and to the spectators^A. 39-40, 41-43, 
44, 48, 49, 50, 58-59). One officer described him as “ bound­
ing from the front to the rear and waving his arm to 

"coine^nT ^nm ^^m m  to come on” l  (A. 50). The other 
officers could not hear what Shuttlesworth was saying. (A. 
42, 59), but ilefense witnesses testified that he was tell­
ing the people to be quiet and orderiyT(A. 67, 69, 71-727 
73-74T~77-78). and~ S h ^ le s w o r ^  added that he
was also asking the crowd of spectatar-s—not to join tho 
^.maixATcuniiallini^A. 77-78). It is not contested that Shut­
tlesworth was wearing an <j>iitfit- - hiu e < ~ j s  and a black 
shirt—that was worn as welPfejf other headers’ of the march, 
Abernathy and Dr. King (A. 40, 46-47)^76, ^9-80).

2 He was arrested an hour or two later, at a motel (A. 79).



11

II. The proceedings below.

September 28, 1963, petitioner was criminally charged 
by complaint in the Circuit Court for the Tenth Judicial 
Circuit of Alabama, the complaint alleging that lie “ did 
take part or participate in a parade or procession on the 
streets of the City [of Birmingham] without having se­
cured a permit therefor from the commission, contrary to 
and in violation of Section 1159 of the General City Code 
of Birmingham of 1944 [set forth at pp. 4-5 supra] ” 3 
(A. 1).

^  He j emurjfid-to the complaint on the grounds, inter alia, 
-'Hat section 1159 was an unconstitutional abridgment of 
his federal First and Fourteenth Amendment rights, that 
it was facially unconstitutional because it deprived him 
without due process of the liberty guaranteed by the Four­
teenth Amendment, and also because his prosecution under 
it violated the Equal Protection Clause of the same Amend­
ment (A. 2-3). The demurrer was overruled (A. 6, 16), 
and he was put to .tiia]_before a jury on September 30 and 
October 1, 1963.

His Motion to Exclude the Testimony and for Judgment, 
made at the close of the prosecution’s case, repeated his 
First and Fourteenth Amendment contentions, asserting 
that the conduct proved against him amounted to nothing 
more than the exercise of rights guaranteed by the Amend­
ments; and it asserted also that there was no evidence to 
sustain his conviction (A. 4-5). This motion was overruled

3 Earlier;_ on.MjayJL5, 1963. petitioner was tried in the Recorder’s 
C oim aFtEeC ity of Birmingham, convicted of violating §1159, and 
sentenced to 180 days at hard labor and a fine of $100. From this 

„ \ ju d g m e n t, he took an appeal for trial de novo in the Tenth Judicial
\Y Circuit Court.

* \jF



1 2

(A. 6-7, 65), renewed at the conclusion of defense testi­
mony (A. 81), and again overruled {ibid.). ,

Petitioner was then convicted gndvsenteneed /of90^aays 
at hard labor, and an additional'48 days at i»(rd. labor in 
default of payment of a fine (ofj$7o and taxable costs of 
$24 (A. 7-8).

His motion for a new trial, preserving the claims of error 
in denial of each of his earlier motions (A. 9-10) was over-, 
ruled October 1, 1963 (A. 8). Petitioner filed his notice of 
appeal to the Court of Appeals of Alabama on the same day 
{ibid.). His specification of errors in that court again pre­
served all of his federal contentions (A. 86-87), and was 
treated by the court as presenting

“ three questions for decision: (1) whether §1159, supra, 
denies, on its face, due process of law; (2) whether or 
not the'Ordinance , as applied violates Tick Wo v. Hop­
kins, 118 U. S. 356; and (3) the sufficiency of the evi- 
dence” (A. 89).

A  majority of the Court of Appeals, Sixth Division, 
speaking through Judge, Cates/^agreed with petitioner’s 
submissions on each of mese'fEree points. Reviewing the 
record, the court found that the case involved a march of 
fifty-two persons on the sidewalks of Birmingham (A. 89):

“ The group went along sometimes two, sometimes 
three, sometimes four, and at one time a witness saw 
one rank of six abreast. This observed bunching up 
coincided with the proinenaders being blocked by offi­
cers parking police cars athwart the crossing at Fifth 
Avenue and Eighteenth Street.

“ There was no evidence that any of the group jay­
walked, or that they got into the vehicular roadway



13

except at designated cross walks. Nor did they ob­
struct cars or pedestrians, nor disobey any traffic 
lights, or officers directing traffic. The only tendency 
toward showing disorderly conduct lay in evidence that 
some of the group sang and clapped hands” (A. 89-90).

This evidence, the court held, failed “ to show a proces- 
sion whieh would require, undeF~the terms of §1159, the 
getting of a permit.” Hence there was insufficient evidence 
to sustain conviction under the ordinance properly con­
strued (A. 139-140). In any event, the ordinance was 

^facially unconstitutional as a prior restraint on First 
Amendment freedoms, because it was a licensing law which 
allowed overbroad discretion to the licenser to censor con­
stitutionally protected modes of peaceful expression and 
petition for redress of grievances4 (A. 112-134). Finally, 
the experience of the Court of Appeals with the adminis­
tration of §1159 by the City of Birmingham was convinc­
ing that the “ pattern of enforcement exhibits a discrimina-
tion within the rule of Yick Wo v. Hopkins, supra” (A. 134- 
139). Accordingly, petitioner’s conviction was reversed, 
Noveipber 2, 19fi5 j_A 155). Judge Johnson dissented (A. 
144-54).

4 “ Since the ony stated standards for refusing a permit are those 
of welfare, peace, safety, health, decency, good order, morals or 
convenience, we— in addition to overbroadness— find these words, 
as related to a parade, procession or demonstration 
nmntln lacking in preciseness or without a settled ap'pl.ir.ahle. r.ntn- 
mon law meaning. »

“ For example, in Hague v. Committee [307 IT. S. 496 (1939)], 
. . . Roberts, J., aptly pointed out that peace on the streets could 
easily be achieved by suppression.

“ In the context of long drawn out resort to congested courts for 
relief, these stated ‘standards’— truly only sources of power, not 
means to an end— show §1159 to be void on its face” (A. 134, 
emphasis in original).

©

t*-~0 s

2—'''f'lp2"!. t JLs** <-£

Cl. *•

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'/cUUJO



Respondent City of Birmingham petitioned the Supreme 
I Court of Alabama for certiorari to review the judgment 

fe I of the Court of Appeals (A. 157-161). .The writ was 
\ granted January 20.1 1966 yA. 162); and on. November—9^ 
11967, the Supreme Court rendered its opinion reversing the 
| Court of Appeals and sustaining petitioner’s conviction

io (A. 163-178). The Supreme Court of Alabama first recited 
that:

“ In view of the fact that there was a dissenting opinion 
[in the Court of Appeals], we have gone to the orig­
inal record to determine the facts. The majority opin­
ion of the Court of Appeals does not contain a

<S

complete statement of the facts. However, the dis­
senting opinion of Judge Johnson contains a rather 
rengfEyh'TcTS ^  facts and ouFexamination of
the original record shows that the facts as stated in 

- the dissenting opinion are fully supported by the 
record” (A. 165-166).

However, Judge Johnson’̂  opinion contains no factual find­
ings that depart from those of Judge Cates’ opinion for 
the Court of Appeals (although he did recite some addi­
tional, conflicting testimony without attempting to resolve 
the conflicts). He saw the appeal as involving “ approxi- 

■> mately 52 persons, most of whom were Negroes, [who]

c departed from a church grouped ‘in formation’ on
the sidewalk in front of the church, and then walked m
formation’ along the sidewalks for several blocks” , (A. 
144). “ ‘Spectators’ lining the route fe llin  behind and f ol-
lowed the group in formation as they passed by. This

.crowd of ‘spectators’—consisting of several hundred per- 
sons—did notwalFTnTormation and had no discernible



15

{ibid.). .“ The group in formation sang andorganizationt
Sapped hands as they1 proceeded "along the sidewalk, but 
were otherwise orderly” (A. 145), One police officer testi­
fied that the group was marching “ four to six abreast ‘all 
the way across the sidewalk’ ” at the point he stopped it 
and arrested the marchers; that petitioner was in the line 
of march; and that the crowd of spectators was in the 
center of the street {ibid.). Another testified that the 52 
marchers were always only two abreast; and that peti­
tioner was not in the line of march, but walked alongside 
the marchers, giving them encouragement {ibid.). A  third 
officer saw petitioner bounding up and down the line, tell­
ing the marchers to come on {ibid.). Defense witnesses 
supported the police versions of the march which reported 
the marchers paired in twos, with petitioner moving up and 
down the line talking to the marchers; and they testified 
that petitioner counseled the marchers to be quiet and 
orderly, and the spectators not to join the march (A, 146). 
Without resolving any of the factual controversies raised 
by this statement of the evidence, Judge Johnson had con­
cluded that the Good Friday march was a parade required 

_to  be~~TIcehsed by $1159 pA. l46-li!J)T that §1159 was re­
quired by the First Amendment to be given an exceedingly 
narrow construction, but that—as so construed—it was
facially constitutional (A. 149-153); and that no pattern of 
discriminatory enforcement appeared to be made out,(A.

TM]7~ “

The Supreme Court of Alabama announced that:

“ The dissenting opinion, unlike the majority opinion of 
the Court of Appeals, takes cognizance of the rule so 
often stated by the appellate courts of this state, to 
the effect that it is the duty of courts not to strike 
down a city ordinance or a statute as unconstitutional,



16

if by reasonable construction it can be given a field of 
operation within constitutional limits and that where 
a statute or ordinance is susceptible of two construc­
tions, one of which will defeat the ordinance or statute 
and the other will uphold it, the latter construction will 
be adopted” (A. 166).5

Employing this mode of approach to Birmingham General 
City Code §1159, as “ susceptible of two constructions,” the 
Supreme Court expressly approved Judge Johnson’s re­
strictive interpretation of the ordinance (A. 168), drasti­
cally delimiting the discretion conferred on the Birming­
ham City Commission by the express terms of §1159, to 
refuse a permit for parades or processions if “ in its judg-

3 Judge Cates did not in fact ignore the ordinary doctrines in­
volving the presumption of constitutionality of legislation, but 
recognized the superior demands of this Court’s First Amendment 
decisions, requiring more than ordinary “ [precision  of regulation” 
in areas of free expression. N. A. A. C. P. v. Button, 371 U. S. 415, 
438 (1963) ; Interstate Circuit, Inc. v. City of Dallas, 20 L. ed. 2d 
225, 231 (1968).

“ Ordinarily, a court in reviewing legislation will look at 
the remedy with the favoring intendment that all rationally 
connected mischiefs passed through the collective mind of the 
lawmakers. Thus the inhibition of conduct— though sometimes 
partly innocent— can find support in the state’s police power 
if  aimed at a substantial evil.

“ Nevertheless, this balancing in First Amendment cases finds 
the scales weighted in the beginning in favor of the freedom 
which is sought to be restrained. As Rutledge, J., said in 
Thomas v. Collins, [323 U. S. 516 (1945)] . . . ,  at 529-530:

“ ‘This case confronts us again with the duty our system 
places on this Court to say where the individual’s freedom 
ends and the State’s power begins. Choice on that border, 
now as always delicate, is perhaps more so where the usual 
presumption supporting legislation is balanced by the pre­
ferred place given in our scheme to the great, the indis­
pensable democratic freedoms secured by the First Amend­
ment . . . ’ ”  (A. 110).



17

ment the public welfare, peace, safety, health, decency, 
good order, morals or convenience require that it be re­
fused,” pp. 4-5 supra. The Supreme Court adopted Judge 
Johnson’s tailoring of §1159 on the pattern of the New 
Hampshire ordinance that survived constitutional scrutiny 
in Cox v. New Hampshire, 312 U. S, 569 (1941) (see A. 
168-170), as follows:

Vdw a/v'
' *

\

“ I think it obvious that this ordinance—Section 1159 
—was not designed to suppress in any manner free­
dom of speech or assembly, Jmt to rea.sona.b.1v regulate 
the use of the streets hp> tlie public interest. It does not 
seek to conTrdr"wlIat may be said on the streets, and 
is applicable only to organize [sic] formations of per­
sons, vehicles, etc., using the streets and not to in­
dividuals or groups not engaged in a parade or 
procession. The requirement that the applicant for 
a permit state the course to be travelled, the probable 
number of persons, vehicles and animals, and the pur­
pose of the parade is for the purpose of assisting the 
municipal authorities in deciding whether or not the 
issuance of a permit is consistent with traffic condi­
tions.^ Thus, the required information is related to the 
proper regulation of the use of the streets, and the 
fact that such information is required indicates that 
the power given the licensing authority was not to be 
exercised arbitrarily or for some purpose of its own. 
The requirement that the applicant state the purpose 
of the parade or procession does not indicate an intent 
to permit the Commission to act capriciously or arbi­
trarily. The purpose may have a bearing on precau­
tions which should be taken by municipal authorities 
to protect parades or the general public.



18

“ Section 1159, supra, provides that the Commission 
shall issue a permit ‘unless in its judgment the public 
welfare, peace, safety, health, decency, good order, 
morals or convenience require that it be refused.’ I do 
not construe this as vesting in the Commission an 
unfettered discretion in granting or denying permits, 
but, in view of the purpose of the ordinance, one to be 
exercised in connection with the safety, comfort and 
convenience in the use of the streets by the general 
public. The standard to be applied is obvious from 
the purpose of the ordinance. It would be of little or 
no value to state that the standard by which the Com­
mission should be guided is safety, comfort and con­
venience of persons using the streets, and, due to 
varying traffic conditions and the complex problems 
presented in maintaining an orderly flow of traffic 
over the streets, it would be practically impossible 
to formulate in an ordinance a uniform plan or sys­
tem relating to every conceivable parade or proces­
sion. The members of the Commission may not act as 
censors of what is to be said or displayed in any 
parade. If they should act arbitrarily, resort may be 
had to the courts. It is reasonable to assume from 
the facts in this case thafTlhrCommission would have 

.granted appellant a permit to engage in the parade 
4 f  such permit had been sought. A denial would have 
been warranted only if after a required investiga­
tion it was found that the convenience of the public in 
the use of the streets at the time and place set out in 
the application would be unduly disturbed” (A. 166- 
168).

To this construction of §1159* the Supreme Court added 
the observation that it did not interprtdJJnx-ondinance as



conferring on tlie Birmingham City Commission “ the right 
,_to refuse an application for a permit to carry on a parade, 

procession or other public demonstration solely on the 
ground that such activities might tend to provoke dis- 
orderly conduct. See Edwards v. South Carolina, 372 IT. S.
229 . . . . ” (A. 170). Paraphrasing the language of the 
Cox opinion, supra, 312 U. S. at 576, the court said:

“We also hold that under §1159 the Commission is 
without authority to act in an arbitrary manner or 
with unfettered discretion in regard to the issuance of 
permits. Its discretion must be exercised with uni­
formity of method or treatment upon the facts of each 
application, free from improper or inappropriate con­
siderations and for unfair discrimination. A system­
atic, consistent and just order of treatment with 
reference to the convenience of public use of the 
streets and sidewalks must be followed. Applications 
for permits to parade must be granted if, after an 
investigation it is found that the convenience of the 
public in the use of the streets or sidewalks would not 
thereby be unduly disturbed” ( A. 170-171).

Pitted out with this construction, the ordinance was sus­
tained in reliance upon Cox and upon a phrase in Walker 
v. Birmingham, 388 U. S. 307, 317 (1967), to the effect that 

Jht could not be assumed that the ordinance [Birmingham
General City Code §1159] was void on" its face”..(A. 171-
173). The Alabama Supreme Court acknowledged that 
“ [pjerhaps we have placed too much reliance on Walker 

. . and on Cox . . . ” (A. 176), but opined that, “ If so. we " 
will no doubt be set straight” (ibid.)- It summarily re­
jected the holdings of the Court of Appeals that the Good 
Friday march was not a f“parade or processio'nyor other (j* 
public demonstration on tii.'streels or public ways” of



2 0

Birmingham required to be licensed under §1159 (A. 175- 
176) • and that §1159 had been di^flxnmatorilyjenforced
by the Birmingham authorities (A. 174-175). PetitioueFs- 
conviction was therefore sustained (A. 177-178).

An application for certiorari to review the judgment of 
the Alabama Supreme Court was granted by this Court on 
April 22, 1968.6 Trials of approximately 1500 other civil 
rights demonstrators, arrested during this and other demon­
strations occurring over a period of several weeks in the 
Spring of 1963, in B^gfingham and charged, like peti­
tioner Shuttlesworth,fctfy  under Birmingham General City 
Code §1159, are pending’ the outcome of this case.

/ I

Summary of Argument

This prosecution is now more than five years old. It 
had its origins in a classic, peaceful civil rights demon­
stration7 in the City of Birmingham in 1963—a time “when 
Birmingham was a world symbol of implacable official 
hostility to Negro efforts to gain civil rights, however 
peacefully sought.” 8 Together with Birmingham’s cognate 
prosecutions of petitioner Shuttles worth, it stands, in the 
apt words of Mr. Justice Murphy on another like occa­
sion, “ as a monument to man’s intolerance of man. Sel­
dom if ever in the history of this nation has there been

6 The judgment of the Supreme Court of Alabama was entered 
on November 9, 1967 (A. 177). Mr. Justice Black extended the 
time for filing a petition for certiorari until March 8, 1968; and 
the petition was timely filed on March 7.

7 As in Edwards v. South Carolina, 372 TJ. S. 229, 235 (1963), 
“ The circumstances in this case reflect an exercise of these basic 
constitutional rights [of free speech, free assembly, and freedom 
to petition for redress of grievances] in their most pristine and 
classic form.”

8 Walker v. City of Birmingham, 388 U. S. 307, 338-339 (1967) 
(Mr. Justice Brennan, dissenting).



23

such, a concentrated and relentless crusade to [convict] . . . 
an individual because he dared to exercise the freedom 
that belongs to him as a human being and that is guaran­
teed to him b}? the Constitution.” 9 See In re Shuttles - 
worth, 369 U. S. 35 (1962); Shuttlesworth. v. City of Bir­
mingham,, 373 U. S. 262 (1963); Gober v. City of Birming­
ham, 373 U. S. 374 (1963); Shuttlesworth v. City of Bir­
mingham, 376 U. S. 339 (1964); Shuttlesworth v. City of 
Birmingham, 382 U. S. 87 (1965) ; Walker v. City of Bir­
mingham, 388 U. S. 307 (1967).

This most recent Shuttlesworth prosecution presents, in 
essence, one blunt question. Petitioner Shuttlesworth and 
the other religious leaders of the civil rights movement in 
Birmingham at the Easter season of 1963 were confronted 
with a pair of clear legal edicts. The first was Birming­
ham’s parade-permit ordinance, §1159. While the scope of 
its prohibition was far from certain, one thing about it 
was plain beyond peradventure. ,|Its grant of discretion 
to the Birmingham City Commission to refuse a permit 

.when “ in its judgment the public welfare, peace, safety, 
.health, decency, good order, morals or convenience require 
Jhat it be refused,” was as palpably and indisputably un- 
constitutional as language can make a law. i This Court 
had so held" in a dozen controlling decisions. ' The second 
clear legal edict was the doctrine of this Court, announced 
repeatedly, unqualifiedly, and in terms precisely applicable 
to the Birmingham situation, that ordinances like §1159,
void for thajeasons that 5,1159.was void, might safely be
ignored, and that arrests and... prosecutions for. their vio-, 
lalion were unconstitutional. \

Birmingham’s civil rights leaders took this Court at its 
word. They ignored §1159, organized their followers in

9 Bridges v. Wixon, 326 U. S. .135, 157 (Mr. Justice Murphy, 
concurring).



22

carefully marshalled, peaceable public demonstrations 
against racial injustice, and marched during Easter Week. 
The marchers were arrested in droves, unconstitutionally, 
if this Court’s decisions are the law oi' the Constitution. 
They were criminally charged in droves,)unconstitutionally 
as any lawyer, and virtually any literate layman, must 
have known. Petitioner Shuttlesworth’s prosecution pro­
ceeded through the Alabama courts as the case to test 
Birmingham’s assertion of a licensing power palpably for­
bidden by the Constitution. He was convicted in the 
Recorder’s Court, and again in the Circuit Court. Two 
and a half years after his arrest the Court of Appeals of 
Alabama, by Judge Cates, read Birmingham General City 
Code §1159 as it was written, tested it by this Court’s 
First Amendment decisions, and reversed petitioner’s con­
viction. Two additional years later, the Alabama Supreme 
Court, equally conscious that the ordinance as written and 
as theretofore understood was void, performed an extreme 
work of judicial surgery,^ excised from §1159 express 
language conferring a discretion to license parades ac­
cording (o the Ticeiiser’s judgment oi' publKri,|i(hH^*hTo-'- 
cency,” “ good order,” and “morals,” wrapped the remainder 
of the ordinance in the verbal trappings of Cox v. New 
Hampshire, 312 U. S. 569 (1941)Taiid so sustained peti­
tioner’s conviction of 90 days at hard labor, with an addi­
tional 48 days in default of fine and costs.

Thereby, in 1967, the Alabama Supreme Court sought 
to render retroactively criminal the peaceful civil rights 
demonstrations that had been, in 1963, constitutionally 
protected. It sought to render constitutional the arrests 
of the demonstrators and the repression of their demon­
strations that had been, in 1963, constitutionally forbidden. 
The question now presented is whether any such course 
of judicial proceedings, converting constitutional rights



23

ex post facto into criminal liabilities, is itself consistent 
with the First and Fourteenth Amendments. We think the 
answer obvious. It is not consistent with the Constitution, 
for several reasons.

First, this Court has held in an unbroken line of deci­
sions from Lovell v. Griffin, 303 U. S. 444 (1938), to Inter­
state Circuit, Inc. v. City of Dallas, 20 L. ed.2d 225 (1968), 
that a licensing regulation subjecting the exercise of First 

i Amendment freedoms to the prior restraint of a permit 
requirement, administered at the discretion of officials in 
“ ‘the absence of narrowly drawn, reasonable and definite 
standards for the officials to follow,’ ” id. at 235, is facially 
unconstitutional and void. | Thejbouej case and subsequent 
decisions abutting at Staub v. Baxley, 355 U. S. 313 (1958), 

” | v,,-* '"’f hold expressly that persons subject to Hctnsihg under such 
an unconstitutional and void regulation may ignore it, 
and exercise their rights of free expression without apply-
ing for a license.Those decisions control this case. If 
there remains any meaning to the concept of facial un- 
constitutionality of an ordinance that broadly and vaguely 
overshadows free expression with the pall of censorship, 
Birmingham’s §1159 is undisputably bad on its face. Peti­
tioner cannot therefore be punished for refusing to submit 
to it, however §1159 may be verbally twisted by the Ala­
bama courts four and a half years after the fact.

1

Second, the rationale of the Lovell-Staub line of deci­
sions embodies a principle, vital to the life of the First 
Amendment, which petitioner’s conviction affronts. In­
creasingly in recent years this Court has refused to per­
mit governmental authority to extend over the range of 
constitutionally protected speech activity broad “penal 
statute[s] susceptible of sweeping and improper applica­
tion.” N. A. A. C. F. v. Bulton, 371 U. S. 415, 433 (1963).



24

Increasingly, it has refused to permit governments to force 
the citizen who seeks to exercise his constitutional rights 
of free speech to risk prosecution and conviction under such 
statutes. Dombrowski v. Pfister, 380 U. S. 479 (1965). 
Birmingham’s §1159 is a prime instance of the sort of 
censorial legislation which these decisions condemn. Legis­
lation of the kind abounds, notwithstanding its unconsti­
tutionality, for the obvious reason that its vague strictures 
permit local authorities to assert a power which, at least 
until challenged,4s effective to repress any and all unpopu­
lar or dissentient activity. The course of petitioner’s treat­
ment by the Alabama courts demonstrates the final link in 
the chain by which the repressive force of these statutory 
schemes is secured. A  retroactive retraction of the statute’s 
ostensible scope, worked in the course of a criminal prose­
cution and employed to validate a conviction, makes chal- 

JLenge to the statute dangerous. Challenge thus^IseouragedT' 
the broad statutes are left exactly that wide play which 
this Court has found inimical to federally protected free 
speech. This result-^and petitioner’s conviction that sub­
serves it—are clearly unconstitutional.

■ / /  /
Third, the /due process guarantee of the Fourteenth 

Amendment protects the petitioner against criminal con­
viction for conduct undertaken squarely within the protec­
tion of controlling decisions of this Court. Petitioner did 
only what the time-honored Lovell and Staub decisions, 
supra, had announced he e&tild doNwith immunity. The 
constitutional command of. fair notice of potential criminal 
liability must protect, at the least, one who acts squarely 
within the scope of immunities authoritatively pronounced 
by the highest court of the Nation. -No ex post facto shift 

, in the basis of the prosecutions can deprive him of this 
protection. And, in petitioner’s ; case, the vice of lack of



25

notice was compounded by the vague scope of prohibition 
of §1159, which the Alabama Supreme Court, reversing 
the Alabama Court of Appeals, applied to the Good Friday 
march in violation of the principle that, regulations affect­
ing First Amendment conduct must be restrictively con­
strued.

Fourth, for all the verbal efforts of the Alabama Su­
preme Court to twist Birmingham General City Code §1159 
into constitutionally allowable shape, the ordinance re­
mains unconstitutional. This is so because, whatever the 
standards which the opinion of the Supreme Court has 
said should govern administration of permits under §1159, 
neither the section n o r generally applicable Alabama, pro- 
cedure provided practical administrative and judicial safe- 
guardsAo insure the enforcement of those standards in a 
fashion consistent with the Constitution. In the absence 
of such “ ‘procedural safeguards designed to obviate the 
dangers of a censorship system,’ ” Teitel Film Corp. v. 
Cusack, 309 U. S. 139, 141 (1968)—specifically, provisions 
for regular and recorded administrative processing of ap­
plication, and for speedy and effective judicial review of 
their denial—§1159 continues to maintain a regime of un­
constitutional prior restraint upon free expression.

The sum of the matter is that the Good Friday march 
in 1963 was dubiously subject to the strictures of the 
Birmingham permit ordinance, §1159; §1159 granted such 
broad discretion to Birmingham city officials that it was 
inconceivable that any court could give it a construction 
narrow enough to save its constitutionality; official hos- 
tility toward civil rights was a matter of public record 
throughout the world; there existed the overwhelming 
probability that Birmingham officials would exercise their 
unfettered discretion to frustrate petitioner’s peaceful pro­



2 6

test activities; there was an absence of state judicial pro­
cedures to promptly and effectively correct abusive exer­
cises of that discretion or to delimit that discretion; and 
prior decisions of this Court taught petitioner that he need 
not submit to an unconstitutional prior restraint upon free 
expression. Given the concurrence of these circumstances, 
petitioner’s conviction can hardly be squared with due 
process of law.

A R G U M E N T

I.

Petitioner’s Conviction Must Be Reversed Because 
Birmingham General City Code §1159  Was, as Written 
and in Force in 1963, a Facially Unconstitutional and 
Void Prior Restraint Upon Free Expression; and Peti­
tioner Cannot Constitutionally Be Punished for Failing 
to Comply With Its Permit Requirement.

We think there can be no doubt that §1159, prior to the 
excision of half its operative language and curtailment of 
the rest by the Supreme Court of Alabama in 1967, was 
blatantly unconstitutional. Decisions of this Court stretch­
ing over a period of thirty years condemned it as a prior 
restraint upon forms of free expression because it sub­
jected constitutionally protected speech to the require­
ment of prior licensing without “ ‘narrowly drawn, reason­
able and definite standards for the officials to follow.’ ” 
Interstate Circuit, Inc. v. City of Dallas, 20 L. eel. 2d 225, 
235 (1968). See Lovell v. Griffin, 303 U. S. 444 (1938); 
Hague v. C. I. 0., 307 U. S. 496 (1939); Schneider v. State, 
308 U. S. 147 (1939) (Schneider’s case); Cantwell v. Con­
necticut, 310 U. S. 296 (1940); Largent v. Texas, 318 U. S. 
418 (1943); Jones v. Opelika, 316 U. S. 584, 600-603 (Chief



27

Justice Stone, dissenting), 611, 615 n. 5 (Mr. Justice 
Murphy, dissenting) (1942), vacated and previous dissent­
ing opinions adopted per curiam, 319 U. S. 103 (1943); 
Marsh v. Alabama, 326 U. S. 501 (1946); Tucker v. Texas, 
326 U. S. 517 (1946); Saia v. New York, 334 U. S. 558 
(1948); Runs v. New York, 340 U. S. 290 (1951); Niemotko 
v. Maryland, 340 U. S. 268 (1951); Joseph Burstyn, Inc. 
v. Wilson, 343 U. S. 495 (1952); Gelling v. Texas, 343 U. S. 
960 (1952); Superior Films, Inc. v. Department of Educa­
tion, 346 U. S. 587 (1954); Commercial Pictures Corp. v. 
Regents, 346 U. S. 587 (1954); Holmby Productions, Inc. 
v. Vaughn, 350 U. S. 870 (1955); Staub v. Baxley, 355 II. S. 
313 (1958); Cox v. Louisiana, 379 U. S. 536, 553-558 (1965); 
cf. Shuttlesworth v. City of Birmingham, 382 U. S. 87 
(1965).

These decisions variously exemplify the settled First 
Amendment doctrine that “ an ordinance which . . . makes 
the peaceful enjoyment of freedoms which the Constitu­
tion guarantees contingent upon the uncontrolled will of an 
official—as by requiring a permit or license which may be 
granted or withheld in the discretion of such official—is 
an iinconstitutional censorship or prior restraint upon the 
enjoyment of these freedoms.” Staub v. Baxley, supra, 
355 U. S. at 322. It is obviously difficult to imagine an 
ordinance more palpably obnoxious to this doctrine than 
§1159, requiring permits from the City Commission for 
parades, processions or public demonstrations and author­
izing the Commission to deny a permit if “ in its judgment 
the public welfare, peace, safety, health, decency, good or­
der, morals or convenience require that it be refused.” 
Judge Cates, for the Court of Appeals, aptly characterized 
this grab-bag of illimitable police powers, tricked out as 
“ standards” for permit denial, when he observed that they 
were “ truly only sources of power, not means to an end”



28

(A. 134). We take it that the Alabama Supreme Court 
ag£ee(l when, for the express purpose of saving the ordi- 
nance and validating petitioner’s conviction, it read half of 
the “ standards” (“ peace,” “ decency,” “ good order,” 
“ morals” ) out of §1159, and construed the remaining half 
as circumlocutions for traffic control.

But this drastically restrictive reading cam ion  the ap­
peal in petitioner’s case', four and a half yearpafter the 
Good Friday march alni his a'rrhsi, T lte Alabama Supreme" 
Court’s commendable effo'id^foLsave the constitutionality 
of the Birmingham parade permit ordinance do not and 
cannot affect that ordinance as it confronted petitioner 
Shuttlesworth and the other Negro clergymen who were 
leading the civil rights demonstrations for racial justice in 
the Easter season of 1963. That ordinance was unconstitu­
tional. It was, as the decisions cited in the first paragraph 
of this subsection, supra, quite plainly say, unconstitutional 
“ on its face.” And this Court has time and again held 
that such an ordinance—precisely the sort of licensing ordi­
nance that §1159 is, and constitutionally bad for precisely 
the same reasons that §1159 is bad—need not be complied 
with. One who is subject to its facially invalid licensing 
requirement may ignore it, and engage with constitutional 
immunity in the exercise of all those rights of free ex­
pression for which the ordinance purports to demand a 
license.

This has been the law of the Constitution since Lovell 
v. Griffin, 303 U. S. 444 (1938), supra. Because the licens­
ing ordinance there challenged conferred impermissibly 
broad discretion to permit or refuse First Amendment 
activity, that ordinance was void on its face; and since it 
was “void on its face, it was not necessary for [Lovell]
. . . to seek a permit under it,” id. at 452. The Lovell doc­



29

trine was followed in Schneider v. State, supra; Largent 
v. Texas, supra; and Jones v. Opelika, supra, all of which 
decisions reversed the convictions under facially invalid 
licensing regulations of persons who had refused to apply 
for the required licenses. Staub v. Baxley, 355 U. S. 313 
(1958), succinctly reaffirmed the principle. The lower 
courts in Staub had held that failure to seek a permit and 
thus to test the discretion of the licensing authorities pre­
cluded a criminal defendant charged with violation of a 
permit ordinance from assailing the ordinance for over­
broad discretion. This Court reversed.

1

“ This is not an adequate nonfederal ground of decision.
The decisions of this Court have uniformly held that 

_ the failure to apply for a license under an ordinance 
which on its face violates the Constitution (!oes not

.preclude review in this Court of a judgment of con-
eviction under such an ordinance. . . . CThe Constitu­

tion can hardly be thought to deny to one subjected 
to the restraints of such an ordinance the right to 
attack its constitutionality because he has not yielded 
to its demands.’ . . . ” (Id. at 319.)

Accord: Freedman v. Maryland, 380 U. S. 51, 56-57 (1965).

It is quite impossible, we submit, to sustain petitioner’s 
conviction without overruling either the long line of de­
cisions collected in the first paragraph of this subsection 
or the Lovell-Staub-Freedman line of cases cited in the 
preceding paragraph. Petitioner Shuttlesworth and the 
Easter demonstrators in the City of Birmingham in 1963 
took this Court literally at its word. They were confronted 
with a facially invalid licensing ordinance. As this Court 
had said they might, they ignored it and marched without 
applying for or obtaining a license. Petitioner has been 
convicted for that act, and for that act only. But that act



30

is constitutionally immune from punishment, so long as 
Lovell, Staub and Freedman state the law of the First 
Amendment. We fail to perceive any logic by which the 
cases may be distinguished.

In saying this, we do not ignore Cox v. New Hampshire, 
312 U. S. 569 (1941). In Cox, demonstrators marched with­
out applying for or getting a license under an ordinance 
which required a license for parades .̂nd failed to pre- 
scribe standards for its issuance.^ On review of the demon­
strators’ convictions for parading without a license, the 
New Hampshire courts construed the ordinance as a traffic- 
control regulation, implying strict and judicially reviewable 
standards for the licensing function. They sustained the 
convictions, as did this Court. As the Court saw the case, 
the Cox ordinance was not facially unconstitutional. 312 
U. S. at 576-578.

We are quick to concede that the basis for this latter 
holding is more than a little unclear. It may have been 
based on the fact that) the Cox ordinance, unlike Biruiing- 

Jiam. General City Code §1159, did not affirmatively and 
, explicitly embody impermissible licensing standards, au- 

y*-' ^onzlhgden ia l to demonstrators of access to the streets 
whenever, in the judgment of the City Commission, com 

. .siderail on s o l Kpeace,” “decency,” “ good order,” “morals,” 
etc. required that a license be refused. ((See pp. 4-5 supra.) 
It may be, also, that when Cox marched in the year 1939, 
the unconstitutionality of a licensing ordinance lacking nar­
row and specific standards was not as patently and palpa­
bly clear as thirty years of decisions by this Court have 
now made it. Certainly it is the case that, in 1941 when 
Cox was decided, this Court had not had the long experi­
ence which it has since had with the dangers of unbridled 
discretion in the licensing of constitutionally protected



31

speech activity—an experience which has led it to develop 
several related constitutional doctrines for the strict con­
finement of such discretion. See, e.g., Baggett v. Bullitt, 
377 U. S. 360 (1964); N. A. A. (;. /!> v. Button, 371 U. S. 
415 (1963); DombrowsIftfMtysM? 380 U. S. 479 (1965); 
Elfbrandt v. Russell, 384 U. S. 11 (1966); Ashton v. Ken­
tucky, 384 U. S. 195 (1966); Keyishian v. Board of Regents, 
385 U. S. 589 (1967); Interstate Circuit, Inc. v. City of 
Balias, 20 L. ed. 2d 225 (1968); and the cases cited in the 
first paragraph of this subsection.

It may be, finally, that in 1941, this Court was indisposed 
to recognize for protest marches on the public streets and 
similar forms <of expression the same * 10 degree of First 

that IT"Amendment protection against official censo 
had accorded leafleting in the Lovell and Schneider cases, 
supra, and nonambulatory public assemblies in the Hague 
ease, supraJ But the doctrines of Lovell, Schneider and 
Hague have) since been applied to all forms of free speecKp

^expression and petition. Saia v. New York, 334 U. S. 558 ’ 
(1948) (soundMrucks); A uns"v7New York, 340 U. S. 29tT 
(1951) (sFreet assemblies); Joseph Burstyn, Inc, v. Wilson, 

vJM3 U. S. 495 (1952) (motion picture s ) ; Cox v. Louisiana, 
___ 379 UT S. 53^ 553-558 ;(1965) (street processions and 

_ demonstrations) . j Protest marches are no longer’  con­
sidered, as they once were, dubious candidates for any 
First Amendment protection. See Edwards v. South Caro­
lina, 372 U. S. 229 (1963); Henry v. City of Rock Hill, 376 
IT. S. 776 (1964); Amalgamated Food Employees Union 
Local 590 v. Logan Valley Plaza., Inc., 88 S. Ct. 1601, 1605-
10 (1968); Davis v. Francois, ------  F. 2d ------ , 5th Cir.,

No. 25562, decided May 28,1968. Whatever other restraints 
may constitutionally be placed upon such marches, by virtue 
of their physical characteiyjl is now plain that they may 
not be disallowed or allowed at the arbitrary will of a cen-



32

sorial permit authority.__Cox v. Louisiana, supra; ef.
Shuttlesworth v. City of Birmingham, 382 U. S. 87 (1965).

Whatever may be the basis, however, of the Court’s view 
in Cox v. New Hampshire, that the ordinance there con­
sidered was not facially void, the point remains that that 
was the view the Court took of the case. Cox did not 
purport to overrule the holdings of Lovell and Schneider 
that one cannot be punished for failure to submit to a 
facially unconstitutional licensing ordinance; and it could 
not, of course, overrule subsequently decided cases to the 
same effect, such as Largent, Jones, Staub and Freedman. 
At most, the upshot of Cox is to compel a distinction be­
tween ordinances which are facially bad and those which 
are not (although they may be unconstitutionally applied).10 
The bases for such a distinction, in the realm of licensing 
or permit ordinances, are not indisputably evident in light 
of Cox. Perhaps the bellwether of differentiation is the 
question whether the ordinance expressly sets forth un­
constitutional licensing standards (like §1159), or whether 
it merely lacks standards (like the Cox ordinance). Per­
haps it is the question whether the ordinance is unconsti­
tutional with regard to the full range of speech conduct 10

10 The archetype of the latter sort of ordinance is the one in­
volved in Poulos v. New Hampshire, 345 U. S. 395 (1953). A l­
though lacking in explicit standards for the issuance of permits, 
the Poulos ordinance had been judicially supplied with standards 
of the constitutionally requisite specificity prior to the time Poulos 
applied for a permit, had the application denied, and engaged in 
unpermitted conduct in violation of the ordinance. F or timjjaulas 
ordinance wai^ideniical to the one considered in Cox v. New 
MEmpshke^supra; in the Cox litigation, concluded before Poulos’ 
application, the New Hampshire courts had narrowly construed 
the ordinance and set forth standards for its administration, and 
this Court had sustained it as so construed. Thus, Poulos was on 
notice both that the ordinance, as a matter of New Hampshire 
law, contained constitutionally adequate standards, and, as a mat­
ter of federal law, that it was constitutional by force of a recent 
controlling decision of the highest court of the land.



33

which it seeks to regulate (like §1159), or whether it might 
constitutionally be applied to some forms of expression.11 
Perhaps it is the question whether the ordinance is plainly, 
palpably, clearly, un disputable unconstitutional (like 
§1159). Our submission here may accept any of these or 
other rationally conceivable distinctions. For it remains 
evident that, under any of them, §1159 is facially bad.

The only test for facial constitutionality which would not 
condemn §1159, we suggest, would be the question whether 
an ordinance is incapable of any post facto judicial con­
struction, however implausible or distorting—however it 
may read plain language out of the ordinance or put un- 
expectable and inconsistent language in—which may re­
make the regulation in a constitutional form. And this, 
obviously, cannot be the First Amendment test. For, as 
the present case demonstrates, there is no ordinance, no 
assemblage of words or form of language, which cannot be 

—twisted after the fact to mean what it does not say, by a 
court havm^TSO lw ^pow erand the will to do so. It need 
not impugn the conduct of the Alabama Supreme Court— 
indeed, it may be a credit to that Court— to recognize that

11 The test of facial constitutionality is plainly not whether the 
ordinance might constitutionally be applied to any sort of conduct, 
including conduct outside the realm of protection of the First 
Amendment. In Schneider v. State, supra, where the Court allowed 
a religious colporteur who had not applied for a permit to challenge 
the applicable permit regulation, for example, the regulation was 
voided “ on its face” as applied to religious solicitors, while the 
question was expressly reserved whether “ commercial soliciting and 
canvassing may not be subjected to such regulation as the ordi­
nance requires.” 308 U. S. at 165. And in Largent v. Texas, supra, 
the Court similarly reversed the conviction o f an evangelist who 
had not applied for a license, in a case where the Court's jurisdic­
tion on appeal from a lower state court depended precisely on the 
theory that the ordinance was not void in every possible applica­
tion. See 318 U. S. at 421-422.



34

its surgical performance on §1159 is simply staggering. 
It lias remade the ordinance out of whole cloth, in at­
tempted deference to the Constitution. But the conse­
quence of this performance for the Easter, 1963 Bir­
mingham civil rights demonstrators, and its lesson for 
future demonstrators who confront palpably unconstitu­
tional licensing regulations like §1159, is entirely destruc­
tive. Such a performance—if it is permitted retroactively 
to sustain petitioner’s conviction—means that the Lovell- 
Staub-Freedman doctrine is rendered nugatory, deprived 
of all contemporary vitality—except, perhaps, in the ease 
of a state court which neglects to do its constitutional 
homework before, predictably, affirming a demonstrator’s 
criminal conviction.

We submit that this Court should tolerate no such eva­
sion of Lovell, Staub and Freedman. Of course, the state 
ĉourts should not be dissuaded from construing their legis- 
lative enactments in a constitutional fashion—or even from 

dprTuring them to that .end, if  necessary. But individuals 
_who exercise their First Amendment rights of free speech, 
.assembly and.petitiom-Drior to the torturing state judicial 
c o nstruction of an ordinance^that is plainly facially in­
valid as written should and mustHoe protected. No other- 
conclusion would allow the First Amendment that effec­
tive range of operation, that “ breathing space,” which this 
Court has repeatedly declared it must have. N. A. A. C. P. 
v. Button, 371 U. S. 415, 433 (1963) ; Dombrowshi v. Pfister, 
380 U. S. 479, 486-487 (1965).

This is so because the application of the Cox doctrine 
below makes Cox the instrument for validation and per­
petuation of unconstitutional licensing regimes. If the deci­
sion of the Alabama Supreme Court stands, every licensing



35

regulation, however broad the discretionary power it ap­
pears to confer upon licensing authorities over the speech 
activity of the persons required to be licensed, must be 
obeyed. The resultant damper on constitutionally guaran- 
feed“fFeedoms of expression is obvious. The States are 
permitted and encouraged to hold out a broad and over­
hanging threat of greater prior censorship than the First 
Amendment permits them to exact. So long as the threat 
is effective and fear of attendant criminal penalties dis­
courages challenge to it, the censorship exerts its full, un­
constitutional repressive effect. When and if a challenge is 
mounted, the state courts (which may or may not be the 
highest court of a State) announce that the statutory 
regulation does not mean what it plainly says, and—with­
out removing the overbroad language from the statute 
books, where it remains to be invoked by the licenser and 
to cow laymen subject to regulation under it—give it some 
post hoc verbal construction designed and sufficient to 
bring it barely back across the line of constitutional con­
demnation. The reward of the citizen for successful con­
stitutional challenge is thus a criminal conviction; challenge 
is discouraged; and the Tlburishing oFlmoacTTfeigns of cen­
sorship—which appear still to be widespread, notwith­
standing this Court’s repeated condemnation of them12—is 
approved.

Just this sort of regulation of speech conduct, wherein 
a State undertakes to threaten by ostensible prohibition 
a broader range of protected activities than it can eon-

12 The Jackson, Mississippi ordinance recently condemned in 
Guyot v. Pierce, 372 F. 2d 658 (5th Cir. 1967), for example, was a 
portion of the Uniform Traffic Code. See also, e.g., Baker v. Bind- 
ner, 274 F. Supp. 658 (W . D. Ivy. 1967); Gamble v. City of Dublin, 
375 F. 2d 1013 (5th Cir. 1967) ; King v. City of Clarksdale, 186 
So. 2d 228 (Miss. 1966).



36

stitutionally forbid, has been voided by this Court in 
numerous contexts other than licensing laws. E.g., Bantam 
Books, Inc. v. Sullivan, 372 U. S. 58 (1963); N. A. A. C. P. 
v. Button, 371 U. S. 415 (1963); Dombrowski v. Pfister, 380 
U. S. 479 (1965) ; Keyishian v. Board of Regents, 385 U. S. 
589 (1967). The teaching of these cases is that such 
sweeping forms of regulation, asserting State authority to 
prohibit conduct which the First Amendment protects, 
are intolerable to the Amendment, whether or not the 
State can, in the end, make good its threat of prohibition 
in every case encompassed by the assertion. What is im­
permissible, what is constitutionally forbidden, is the ex­
istence of this sort of dragnet restraint upon precious 
freedoms of expression.

But the decision below has exactly the effect of vindicat­
ing and preserving such a dragnet restraint, by making at­
tack upon it impracticable. For it is clear that what the 
Alabama Supreme Court has done here is retroactively to 
validate some; 1500/. criminal charges, plainly the imper­
missible incidefffg^of an unconstitutional licensing proce­
dure when made in 1963, by wrapping them about with the 
verbal habiliments of the Cox opinion.13 Not only does

13 The Alabama Supreme Court’s reliance upon Walker v. City 
of Birmingham, 388 U. S. 307 (1967), gives it no additional sup­
port. That case spoke to the right of the citizen to flout a judicial 
injunction, a question not involved here. The Alabama Supreme 
Court drew upon Walker not for any implications that that de­
cision might have for the Lovell-Stauh-Freedman principle— as 
to which it has none— but to support the holding that §1159 was 
constitutional. But it was only in the context of the question 
whether a judicial decree embodying the ordinance might be ig­
nored that the Walker majority said, 388 U. S. at 317, that “ it 
could not be assumed [§1159] . . . was void on its face.”  And 
the Chief Justice, in a dissenting opinion in which Justices Bren­
nan and Fortas joined, found §1159 “ patently unconstitutional 
on its face.”  388 U. S. at 328.



37

this have the effect of legalizing the illegal conduct of the 
Birmingham authorities—and illegalizing the legal con­
duct of the 1500 Birmingham civil rights demonstrators— 
in 1963; it leaves Birmingham General City Code §1159 
and literally hundreds of cognate statutes and ordinances14 
lying about like so many traps against future free speech 
activity. Even in the case of §1159 itself, which has now 
been given an authoritative if belated limiting construc­
tion, the danger of irremediable unconstitutional applica­
tion remains intense, both because of the gap between the 
limiting construction and what the face of the ordinance 
appears to countenance, and because of the absence in 
Alabama of any administrative or judicial machinery ser­
viceable to make the limiting construction more than verbal. 
(See part III, infra.) And, of course, the danger is greater 
still in the case of other, similar but as yet unconstrued 
licensing statutes and ordinances, to which the effect of 
the decision below is to enforce compliance.

The extent of this danger is apparent upon considera­
tion of the alternatives open to the citizen wishing to par­
ticipate in speech conduct for which such a statute or ordi­
nance _xeouires a license. He may sue the licensing
authority to have the regulation declared invalid as an 
unconstitutional pnbYHeslhmntl Dombrowski v. Pftster, 
supra; Zwickler v. Koota, 389 U. S. 241 (1967). This is a 
valuable but luxurious remedy, available only to those wdth 
abundance of time, means, and legal services—hardly to be 
relied upon as a general safeguard of the Constitution. 
He mav refuse to make application for a license, and. at- 
tempt to challenge the constitutionality of the statute or 
ordinance when he is prosecuted for Its violation. The

{aa* V
(yy\

14 See note 12 supra.



38

A '

V

■\

-7 )

decision below effectively forecloses this course to all savet....•* ________________________.__.________
\ the foolhardw y~ jf  to the licenser’s disere-, ti^nj-apgly-fgra, license, and—if his appEcatttmrtg~aenied—; 

seek some form of judicial ivvic-Vol* Hu- denial. This last 
alternative's the one w luM T W ^^m T T if

(a^
Ajj

________________________  , Staub.and
Freedman expressly held could not constitutionally be im­
posed upon the citizen, for good reason.

In the first place, a system of enforced compliance with 
overbroad licensing laws presents no real means of chal­
lenging their coercive effect because in practice it preserves 
wide open, operative and unchallengeable the discretion in 
the issuer of the licenses. We develop in greater detail, in 
part III infra, the vicissitudes that mine the route of one 
who seeks, in Alabama, to enforce his constitutional rights 
by applying for a license and obtaining review of its denial. 
For present purposes it is enough to note the several cir­
cumstances that make virtually insuperable the difficulty 
of proving a case of judicially revlsatile arMtrary~or~'drs- 
criminatory enforcement of a permit law: the facts that the 
administrative decision iŝ  not required to be made on a 
record following regularized procedures; that it is not re­
quired to be supported Fy any statement of reasons; and 
that there is not even required to lie kept anyladministra­

t e  five log or recording'oT applications and denials,___
t v' T llfiS A  P .n n n itin n s  fncrp+Tipr* -nrifh flic* rvF delay )in-J

eetivo' and

A/1

These conditions, together with the prospect 
volved in any judicial challenge, make the e 
timely reversal of the denial of a permit application in any 
particular case highly unlikely. And, in any event, no gen­
eral construction of the overbroad permit law is assured 

this route; while facial challenge to it is, of course,Uy. ,denied,
f t



39

, Mt

But there is, in the second place, a broader practical 
justification for this Court’s consistent position that a 
citizen should be free to refuse to submit to a licensing 
scheme which has a coercive effect upon First Amendment 
rights. These overbroad laws are numerous and their 
prior restraints affect large numbers of persons who can­
not be supposed to have the knowledge or the resouTCEs- 
to combat them by prolonged administrative and .judicial" 
challenge. Those who must take to the streets to air their 
grievances are, more than ordinarily, simple people, de­
prived people, people whose needs to speak out are urgent 
and who choose the streets as the forum for their speech 
precisely because they lack the power, the influence, and the 
financial means to make their voices effective in adminis­
trative or judicial councils. The first effective legal spokes­
man they are likely to have, capable of speaking the lan­
guage that moves administrators and courts, is the lawyer 
appointed for them after they are criminally charged. In 
the present case alone, 1500 Negro citizens of the City of 
Birmingham were subjected to the prior restraints of the 
Birmingham parade ordinance, in several separate inci­
dents, during the Easter season of 1963. If they had sought 
parade permits under the law, it was and is speculative 
what construction would have been put upon §1159 by the 
Birmingham authorities or the Alabama courts—except, of 
course, that the liberality and fairness announced in 1967 
by the Alabama Supreme Court, as canons for the applica­
tion of §1159, could hardly have been expected.15 It is

15 See United States Commission on Civil Rights, 1963 Repoet 
112 (1963) :

“ The official policy in . . . Birmingham, throughout the 
period covered by the Commission’s study, was one of sup­
pressing street demonstrations. While police action in each



40

equally speculative how long the demonstrators would have 
been in court—had they been able to take their case to 
court—before obtaining any construction. One thing, we 
think, is plain to common sense. There would have been 
no civil rights inarches at Easter time in 1963. There might 
have been litigation, throughout whose pendency the un­
limited breadth of Birmingham General City Code §1159 
would have exercised its repressive and unconstitutional 
restraint. There might have been presentations by the 
Negro clergymen to the City Commission, and to the courts! 
But there would not have been on the streets of the city—• 
the forum where, in fact, history shows the advocates of 
civil rights spoke effectively to the Nation during that 
Easter season—the freedom of peaceful speech, assembly 
and petition which the Constitution commands.

In short, it was not heedlessly, we suggest, that this 
Court in Lovell, in Schneider, Largent and Jones, in Staub 
v. Baxley, and in Freedman v. Maryland, announced the 
preference of the First Amendment for allowing challenges 
to the whole regime created by overbroad licensing laws 
such as §1159. Those decisions recognize that only by facil­
itating challenges to the laws themselves could their coer­
cive sting be removed. By contrast, the decision below 
penalizes such challenges. It punishes the citizen who, by 
daring to assail an overbroad prior restraint, succeeds in 
having it limited to proper constitutional bounds. This pun­
ishment is the dues of that citizen although his challenge

arrest may not have been improper, the total pattern of official 
action, as indicated by the public statements of city officials, 
was to maintain segregation and to suppress protests. The 
police followed that policy and they were usually supported 
by local prosecutors and courts.”



41

is the only practicable and effective way to curb the re­
pressive effects of the unconstitutional law. The First 
Amendment forbids any such punishment. Petitioner’s 
conviction must therefore be reversed.

II.

Petitioner’s Conviction Must Be Reversed Because It 
Imposes Criminal Liability Upon Him Without the Fair 
Nptice Required by Due Process of Law. -A

A. Our principal submission under the Due Process 
Clause rests upon the two premises established at the outset 
of subsection I, supra: that, at the time petitioner partici­
pated in the Good Friday march in Birmingham in 1963, 
(i) Birmingham General City Code §1159, as written and 
in force, was plainly unconstitutional under innumerable, 
settled, squarely controlling decisions of this Court (pp. 
26-27, supra), and (ii) equally settled, squarely control­
ling decisions of this Court established petitioner’s right 
to ignore such an unconstitutional ordinance, and to con­
duct a peaceful public protest demonstration, not otherwise 
unlawful, without applying for a permit under §1159 (pp. 
28-29, supra).

If these two propositions are sound, petitioner acted 
squarely within the letter and the spirit of a constitutional 
immunity extended to him by the decisions of the Supreme 
Court of the United States.

We fail to see how, under these circumstances, a legal 
.jsysten^ which has always been supposed to require fair 

notice of potential criminal liability as a rudimentary de­
mand of due process, see, e.g., Uansettarv. New Jersey, 306



42

U. S. 451 (1939); Bouie v. City of Columbia, 378 U. S. 347
(1964), can countenance petitioner’s criminal conviction. 
If an individual who acts entirely within the unmistakable 
scope of protection of a constitutional immunity expressly 
and previously declared by the highest judicial tribunal 
of the land can retroactively be held criminally accountable-  
for that"'action^ notions of notice are meaningless.* The 
Grmshibutitnri^ the judicial process created to en­
force its guarantees, become simply “ the most indefensible 
sort of entrapment.” Raley v. Ohio, 360 U. S. 423, 438 
(1959); Cox v. Louisiana, 379 U. S. 559, 571 (1965). The 
bitter irony of any such result is highlighted by the recog­
nition which this Court has lately shown for reliance upon 
the Court’s decisions by public authorities who act—as it 
later is held—unconstitutionally. Linhletter v. Walker, 381 
U. S. 618 (1965); Johnson v. New Jersey, 384 U. S. 719
(1966). We would suppose that the citizen who claims a 
constitutional immunity has at least the same entitlement 
to stand upon this Court’s squarely controlling construc­
tions of the Bill of Bights as do public officials who jeopard­
ize those rights. Indeed, the Court has so held in another 
context. O’Connor v. Ohio, 385 U. S. 92 (1966).

But we need not reach for analogies, since the point is 
plainu Criminal punishment for conduct expressly validated 
by... l.QJjg-settled and oft-repeated decisions of the highest
court of the NaHdn would^affrnhW fh e^ R ^  con­
ception at the rooF~dr~dur cnmma]~~d
law) T'f. J a v ^ ^ T ^ ^ i t e d ^ ta te s r ^ ^  '. *ST~2f3 (1961). 
We submit that, for the same plain reasons, it violates the 
fair notice requirement of the Due Process Clause.

B. The want of fair notice in this case is compounded 
by an additional consideration. Although the protective



- application of the Constitution to petitioner’s conduct at
...the.time he acted was plain enough, the prohibitory ap-
_ plication of §1159 was not' Petitioner stands convicted for 

taking part in an orderly inarch of 52 persons on the side­
walks of Birmingham. He has uniformly taken the position 
that this was nothing like the sort of “ parade or procession 
or other public demonstration on the streets or other public 
ways of the city,” for which §1159 requires a permit. The 
Office of the City Clerk apparently agrees, forytbe clerk’s 
testimony makes clear that licenses were not issued for 
groups proceeding on the sidewalks (p. 9, supra). The 

.-..Court of Appeals o f .ALabama-als.Q agreed, holding that the 
Good Friday march was not “ a procession which would 
require, under the terms of § 1159, the gelling of a permit”
(A. 139). But the Supreme Court..of Alabama—which
adopted the canon of narrow construction of laws that may 
infringe upon First Amendment rights, to the extent of 
narrowing the licensing standards of §1159 in a manner 
designed to avert impending constitutional invalidation of 
the ordinance—flouted that same canon in regard to the 
question of §1159’s coverage.

The sum of the matter is that the Good Friday march 
in 1963 was dubiously within the scope of §1159 and plainly 
constitutionally protected. It was inconceivable that any 
court could give the applicable permit ordinance, §1159, a 
construction narrow enough to save that section constitu- 

# tionally and it would have bordered on perversity to sup­
pose that a court so minded to narrow the ordinance would 
simultaneously expanTITts scope to reach smalT sidewalk 

'  marches that did not disturb" orHnlerrupt pedestrian or 
vehicular use of the thoroughfares. Nevertheless, both of

------- ----------------------------------------------------------1



44

these implausible events followed in the wake of petitioner’s 
arrest and prosecution. We submit that their concurrence 
can hardly be squared with due process of law.

III.

Petitioner’s Conviction Must Be Reversed Because 
§1159, as Construed by the Supreme Court of Alabama, 
Remains Unconstitutional for Want of Procedural Safe­
guards Adequate to Assure Against Censorial Abuse of 
the Licensing Scheme.

The grounds asserted for reversal in parts I and II 
supra turn on the character of §1159 as it was written 
and in force prior to the restrictive construction of it by 
the Alabama Supreme Court on the appeal from peti­
tioner’s conviction.!,Neither submission, therefore, requires 
that this Court decide the question whether § 1159, as re-" 
formed by the Supreme Court of Alabama, is consf Million- ~ 
ally valid! If  that question werammacihndr  howevef"^we~~ 
would submitthat the ordinance, even as restrictively in­
terpretec is unconstitutional by force of the First and 

JESiirteenth Amendments ;~and that tor this~additionaI rea­
son petitioner’s conwkd4fffl-miTTst--Kp

“Any system of prior restraints of expression comes to 
this Court bearing a heavy presumption against its con­
stitutional validity. . . .  We have tolerated such a system 
only where it operated under iudicialysuperintendehoe .and 
assuEfd-mnmlmost-iminediate judicial determinatiopJtfi the 
validity of the restraint.” /Bantam, Boo^rtric. v. Sullivan, 
372 U. S. 58, 70 (1963). ^RemrF^ecisions by this Court 
have given practical significance to that paramount First



45

Amendment principle. Freedman v. Maryland, 380 U. S. 
51 (1965), and Teitel Film Cory. v. Cusack, 390 U. S. 139 
(1968), hold that a scheme of prior licensing of First 
Amendment activity “ avoids constitutional infirmity only 
if. it takes place under procedural safeguards designed to 
obviate the dangers of a censorship system.” 380 U. S. 
at 58; 390 U. S. at 141. The nature of the requisite safe­
guards is described in the Freedman opinion. They may 
be summarized by the .statement..that both the adminis­
trative and judicial proceedings provided by law must be 
such as clearly to assure prompt and effective judicial 
review of a permit denial.^ See 380 U. S. at 58-60.

Plainly, the licensing scheme of §1159 does not meet 
these standards.

The ordinance itself, pp. 4-5 supra, contains no proce- 
_ dural provisions of any sort (except that both permit ap­

plications and permits must be “ written” ). No regular 
, administrative procedures are shown on this record to be 

followed bv the City Commission in its enforcement of 
§1159, except that the Office of the City Clerk keeps a book 
containing carbon copies of issued permits. The clerk tes­
tified below that no record of permit applications or denials 

....,js kept (A. 32-33). Section 1159 is also entirely silent 
on the question of judicial review of administrative action.

Tn its construction of the ordinance, the Alabama Su- 
almosf equally silent

C

, In its
preme Court is
of procedures! The only 
in that court’s opinion of the proceedings- 
or judicial—which are envisaged by the licensing scheme 
of §1159 consists of a single sentence in a quotation from

on the question 
discussion we* are able to find 

administrative



46

the dissenting opinion of Judge Johnson in the Court of 
Appeals, to the effect that: “ If they [the Commissioners] 
should act arbitrarily, resort may be had toJJa&usouxts” 
(A. 168). This sentence is also the only discussion of pro­
cedural matters throughout Judge Johnson’s opinion. 
Judge Cates’ majority opinion for the Court of Appeals, 
voiding §1159, does undertake a detailed study of the 
ordinance, in comparison with the Model Ordinance Regu­
lating Parades, drafted by NIMLO, the National Institute 
of Municipal Law Officers. That analysis discloses that 
§1159 comports no regular administrative procedures, and 
that its procedures for review of the initial administrative 
determination are: j“ None, except to courts, presumably 
by way of mandamus with alternative prayer for certio­

own understanding of Alabama law is also that 
mandamus would be the available remedy for review of 
administrative discretion (however defined) in denial of 
a permit under an ordinance like §1159. See Payne v. 
Spragins, 207 Ala. 264, 92 So. 466 (1922); cf. Rodgers v. 
Meredith, 274 Ala. 179, 146 So. 2d 308 (1962).^The ex- 
traordinary writ proceeding must be first brought in the 
CiTcuitA3uurtT777J^"^^es7T3FAla. 211, 32 So. 167 (1902); 
froTh71Ajujwusn decision by that court, appeal goes to the 
Supreme Court _olLth.e State._ Ala. Code Arm7 Idt'7P§r074 
(Recomp. vol. 1960). The statutory provisions governing 
procedure in mandamus and like proceedings in the Circuit

rari” 'tA . t23; see A. T17-123).



47

administrative review proceeding;16 and Ala. Code Ann., 
tit. 7, §248 (Recomp. vol. 1960), allowing a defendant 30 
flays to plead, answer or demur, appears applicable) Thb 
scope of review in mandamus is stated in Lassiter v. 
Werneth, 275 Ala. 555, 156 So. 2d 647, 648 (1963):

“ To warrant the issuance of mandamus, not only 
must there be a legal right in the relator, but, owing 
to the extraordinary and drastic character of man­
damus and the caution exercised by courts in award­
ing it, it is also important that the right sought to 
be enforced be clear and certain, so as. not to admit 
of any reasonable controversy. The writ does not issue 
in cases where the right in question is doubtful. . . . ”

See also Shirey v. City Board of Education, 266 Ala. 185, 
94 So. 2d 758, 761-762 (1957). This narrow scope of re­
view was applied in a licensing case in State ex rel. 
Ducourneau v. Lang an, 149 Ala. 647, 43 So. 187 (1907).17

We submit that, for several reasons, the licensing scheme 
approved by the court below, as set forth by the terms 
of §1159,- by the Alabama Supreme Court’s opinion con­
struing that section, and by the general Alabama law ap-

18 Alabama Supreme Court Rule 47, cited in respondent’s Brief 
in Opposition to Petition for Writ of Certiorari, pp. 23-24, n. 10, 
applies only to proceedings in the Supreme Court of Alabama on

17 We cannot purport to know, of course, whether the ordinary 
mandamus jurisprudence of Alabama would be applied in §1159 
cases. The State appears to have had little experience in judicial 
review of administrative proceedings by any form of judicial 
process. VJBut, if some streamlined and new-fashioned sort of 
judicial hevltrw“|i rot-ebdirigOCi'eWTnvrsaprod fo r m  foreeruent 6f~§T159, 
the Supreme Court o f Alabama has failed fb~say~sbT



48

plicable to administration of the ordinance, fails the con­
stitutional requirements of Freedman and Teitel Film by 
a wide margin.

In the first place,..uo-jieg-ulari t:y -of administrative pro­
cedure in the processing of license applications is provided 
for or assured. The administrative decision to grant or 
deny a permit is not required to be made on a rdct)rd.jr r  
by any standardized form of/proceeding conducive to ad­
ministrative fairness or judicial- review. NcT FeTTkon s for
the denial of a permit are required to be stated. It is not

/
even required that an administrati*q^"recording be made 
gnd kept of permit applications and aenials,_„JIiider-.-tfeese 

Circumstances, the citizen who seeks to challenge the Bir­
mingham City Commission’s denial to him of a permit 
is impossibly handicapped. He cannot, without indepen­
dent investigation demanding the expenditure of consider­
able resources, determine and judicially prove that the
promise of the Alabama Supreme Court in its construction 
of §1159—“ A systematic, consistent and just order of treat­
ment with reference to the convenience of public use of 
the streets and sidewalks” (A. 170-171)—is being observed 
by the Commission. Arbitrary and discriminatory enforce­
ment remains invisible, virtually impossible to prove.

The difficulty is exemplified by this case. Judge Cates, 
for the majority of the Court of Appeals, took judicial 

-_noticfi_pf the records of prior §1159 cases in that Fmrrf- 
ai|fl found a,pattern of discriminatory application in vio­
lation of Tick Wo v. Ilophins, 118 U. S. 356 (1 8 8 6 ) The 
Alabama Supreme Court apjpears to 

, notice was i i > ipi'o.pexvjy.i.d Uii.- dahnaj '  discrimination not
factually sustainable. However valid the latter vlew~as 
a matter of Alabama appellate practice, it highlights the



4 9

impracticability of a system of .judicial review of admin­
istrative decision-making which sits atop an administrative 
process—-like that for enforcement of §1159—which is 
totally devoid! of regular and visible procedures.

Second, no time limits are prescribed within which ad­
ministrative action on a permit application under §1159 
must be had. The ordinance itself makes no reference to 
time, and does not even require that the application specify 
a date certain on which the parade, procession or demon­
stration is to be held—although the purpose of the demon­
stration is required to be stated. It apparently is not 
envisaged that the Birmingham City Commission is to be 
held to any particular period—let alone to any particular 
short period—in its consideration of permit applications.

Third, whgpjudicial review of a permit denial is sought, 
, there is again no fixedf hrieFperiod of limitation for 
either the pleading of tEuThearing or The delusion phases 
of the review proceeding in the Circuit Court. If the gen­
eral pleading rules apply, they allow the Commission 30 
days to reply to the mandamus petition of the aggrieved 
license applicant; if those rules do not apply, there is no 
stated time limitation. Hearing may be set by the Circuit 
Court, and its decision rendered, at the court’s discretion.

Finally, the scope of judicial review of an administra- 
tive permit denial is exceediilidv narrow. Thejnst is abuse 
of discretion, and abuse must be clearly shown. Thus, the 
difficulties which inhere in demonstrating that an adminis­
trator has acted wrongly in regard to a decision made 
without a record, without a statement of reasons, and with­
out even a regular bookkeeping system in which is re­
corded the history of administrative action in previous like 
cases, is exacerbated.



50

In its totality, this licensing scheme is procedur- 
ally deficient, and unconstitutional under the First 
Amendment. While the Alabama Supreme Court has, with 
considerable effort, supplied verbal standards for the ad­
ministration of §1159 which appear consistent with the 
standards articulated by this Court in Cox^it has failed 

Jo  prescribe or require “procedural safeguards,” Teitel 
Film Corp. v. Cusack, supra, 390 U. S. at 141, adequate 
■ to make the constitutionalizing standards more than verbal. 
For this reason, §1159 is void, and petitioner’s conviction 
under it must be reversed.

CONCLUSION

Petitioner’s conviction must be reversed.

Respectfully submitted,

J ack Greenberg
J ames M. Nabrit, III
Norman C. A maker
Charles Stephen R alston
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

A rthur D. Shores
1527 Fourth Avenue North 
Birmingham, Alabama 35203

Orzell B illingsley, J r .
1630 Fourth Avenue North 
Birmingham, Alabama 35203

A nthony 0 . A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioner



>

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