Walker v. City of Birmingham Petition for Writ of Certiorari

    I n  THE

dkmrt of tip linxk'h Hiatus
O ctober T erm , 1965 

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

W yatt  T ee W alker , M artin  L u th er  K in g , J r ., R alph  
A bern ath y , A . D. K in g , J. W. H ayes, T. L . F ish e r , 
F. L . S h u ttlesw orth  and J. T. P orter,

— v .—
Petitioners,

C ity  of B ir m in g h a m , a Municipal Corporation 
of the State of Alabama.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ALABAMA

J ack  Greenberg 
J ames M. N abrit, III 
N orman  C. A m aker  
L eroy D . Clark

10 Columbus Circle 
New York, New York 10019

A r th u r  D. S hores
1527 Fifth Avenue North 
Birmingham, Alabama

Orzell  B illin gsley , J r .
1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Petitioners

H arry H . W ach tel  
B e n ja m in  S piegel

575 Madison Avenue 
New York, New York

Of Counsel



I N D E X
PAGE

Citations to Opinions Below .............................................. 1

Jurisdiction .......................................................................... 2

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

Statement .............................................................................. 4

A. General Background ............................................. 4

B. Events Leading to the City of Birmingham’s
Prayer for Injunction ..........................................  7

C. The Injunction ..............................................  11

I). Continuation of Peaceful Protests Against 
Segregation .......................................................   12

E. Contempt Judgment: How the Federal Ques­
tions Were Raised and Decided Below .............  14

R easons foe Gran tin g  th e  W r i t :

I. Petitioners’ rights under the due process and 
equal protection clauses of the Fourteenth 
Amendment were infringed by their conviction 
for contempt where the injunction they are 
charged with disobeying is in violation of their 
First and Fourteenth Amendment rights .......... . 19

A. The ex parte injunction of April 10, 1963, 
and Section 1159 of the Birmingham City 
Code violate petitioners’ First and Fourteenth
Amendment rights ..............................................  21

1. Vagueness of the Injunction’s Terms .......  21

2. The Uneonstitutionality of §1159 on Its
Face and as Applied ....................................  25



3. Improper Exclusion of Evidence on the 
Unconstitutional Application of §1159 .... 29

B. The conviction denied due process because 
there was no evidence petitioners participated 
in a forbidden “unlawful” parade or demon­
stration ..................................................................  30

II. Assuming* arguendo that petitioners did disobey 
the injunction, Alabama may not validly punish 
them because the ex parte injunction was void 
as an unconstitutional infringement of their 
rights to free speech and assembly .......... ........  32

III. Petitioners King, Abernathy, Walker and Shut- 
tlesworth may not be punished for their Con­
stitutionally Protected statements to the press 
criticizing the injunction and Alabama officials .... 38

IV. The conviction of petitioners J. W. Hayes and
T. L. Fisher denied them due process because 
there was no evidence that they had notice of or 
knowledge of the terms of the injunction ........... 42

C onclusion  ..............................    45

A p p e n d ix —

Circuit Court Opinion Dated April 26, 1963 .........  la

Opinion of Supreme Court of Alabama Dated 
December 9, 1965 ................................................... 8a

Judgment of Supreme Court of Alabama Dated 
December 9, 1965 ........................................    30a

Denial of Rehearing Dated January 20, 1966 .......  32a

i i
PAGE



Some Ordinances of City of Birmingham. Ala­
bama, Requiring Segregation by Race ...............  33a

Statutes of State of Alabama Conferring Con­
tempt Powers on Courts ....................................... 34a

Table or A uthorities
Cases:

Ashton v. Kentucky, ------  U.S. ——  (May 16, 1966),
34 U.S.L. Week 4398 ......................................................  24

Baggett v. Bullitt, 377 U.S. 360 ..................................  24
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 ...........24, 35
Barr v. City of Columbia, 378 U.S. 146 ....................... 30
Barrows v. Jackson, 346 U.S. 249 ................................... 35
Bridges v. California, 314 U.S. 252 .............................40, 41

Cantwell v. Connecticut, 310 U.S. 296 ........................... 24
Carter v. Texas, 177 U.S. 442 ..........................................  30
Coleman v. Alabama, 377 U.S. 129 — ....................-....  30
Congress of Racial Equality v. Douglas, 318 F.2d 95

(5th Cir. 1963) ............................................ -................  33
Cooper v. Aaron, 358 U.S. 1 ........................-.......... -.....  35
Cox v. Louisiana, 379 U.S. 536 ...... ........ 20, 22, 24,26, 28, 29
Cox v. New Hampshire, 312 U.S. 569 .................... -.......  26
Craig v. Harney, 331 U.S. 367 ..... ......................... ........ 40, 41
Cramp v. Board of Public Instruction, 368 U.S. 278 .... 24

Davis v. Wechsler, 263 U.S. 22 ....... ..... ....... .................  37
Dombrowski v. Pfister, 380 U.S. 479 ........................... 24
Donovan v. Dallas, 377 U.S. 408 ............... ...................  33

Edwards v. South Carolina, 372 U.S. 229 ...........20, 22, 24
Ex parte Fisk, 113 U.S. 713 .........-............. -.................  36
Ex parte Rowland, 104 U.S. 604 ..................................  36
Ex parte Sawyer, 124 U.S. 200 ..................................... 36

Ill
PAGE



IV

Fields v. City of Fairfield, 375 U.S. 248 .......21, 30, 32, 33
Fields v. South Carolina, 375 U.S. 44 ...... ............... .22, 24
Freedman v. Maryland, 380 U.S. 51 ...........................26, 35

Garner v. Louisiana, 368 U.S. 157 ________ _____ 23, 30
Garrison v. Louisiana, 379 U.S. 64 ....................... ...40, 41
George v. Clemmons, 373 U.S. 241 ................... ........  36
Gober v. Birmingham, 373 U.S. 374 _______ ________ 6, 22

Hague v. C.I.O., 307 U.S. 496 .................. ....................  26
Hamilton v. Alabama, 376 U.S. 650 ............................ 24, 35
Hamm v. Rock Hill, 379 U.S. 306 ......... .........................  37
Henry v. Rock Hill, 376 U.S. 776 .............................. 22,24
Holt v. Virginia, 381 U.S. 131 ............. ............. ...... ....  40

Johnson v. Virginia, 373 U.S. 61 ..... ....... ............. 24, 35, 37

Kunz v. New York, 340 U.S. 290 ....... ......... ...... ...... . 26

Lanzetta v. New Jersey, 306 U.S. 451 .......................  42
Largent v. Texas, 318 U.S. 418 ............ ..........................  26
Lombard v. Louisiana, 373 U.S. 267 ............. ............  28
Lovell v. Griffin, 303 U.S. 444 ............................ .... ....  26

NAACP v. Alabama, 357 U.S. 449 ........ ........... ...... 24, 33, 37
NAACP v. Alabama, 377 U.S. 288 _______ _______ ___ 37, 41
NAACP v. Button, 371 U.S. 415........ ......... ............ 24, 35, 36
Near v. Minnesota, 283 U.S. 697 ....... ............ ..............  35
New York Times Co. v. Sullivan, 376 U.S. 254 __ __ _ 40
Niemotko v. Maryland, 340 U.S. 268 ....... .... ................  26

Pennekamp v. Florida, 328 U.S. 331 ................. ......... 40, 41
Primm v. City of Birmingham, 42 Ala. App. 657, 177 

So.2d 326 (1964) ................................. ................. ........  27

PAGE



V

Re Green, 369 U.S. 689 ....................................................  36
Re Oliver, 333 U.S. 257 ..... .....................................34,36,37
Re Sawyer, 360 U.S. 622 ........ ..... ................................38,40
Saia v. New York, 334 U.S. 558 ................................... 26
Schneider v. State, 308 U.S. 147 ................................... 26
Shelley v. Kraemer, 334 U.S. 1 .................................. 24, 35
Shuttlesworth v. Birmingham, 382 U.S. 87 ...............26, 30
Shuttlesworth v. City of Birmingham,------ Ala. App.

------ , 180 So. 2d 114 (1965) ........... ............... 25,27,31,41
Shuttlesworth and Billups v. Alabama, 373 U.S. 262 .... 22
Smith v. California, 361 U.S. 147 ................................... 24
Staub v. Baxley, 355 U.S. 313 ..... ... .............................26, 27
Stevens v. Marks, 383 U.S. 234 .................................... 36, 37
Stromberg v. California, 283 U.S. 359 .......................24, 38

Taylor v. Louisiana, 370 U.S. 154 ................. ...............  30
Terminielio v. Chicago, 337 U.S. 1 ............................ ...  24
Thomas v. Collins, 323 U.S. 516 ........ .............. 24, 35, 36, 38
Thompson v. Louisville, 362 U.S. 199 .......21, 30, 32, 42, 44
Thornhill v. Alabama, 310 U.S. 8 8 ..................................  24

United Gas, Coke and Chemical Workers v. Wisconsin
Employment Relations Bd., 340 U.S. 383 ............... 36

United States v. Chambers, 291 U.S. 217 ....................... 37
United States v. Shipp, 203 U.S. 563 ............................. 34
United States v. State of Alabama, 252 F. Supp. 95

(M.D. Ala. 1966) ....................... ............. .............. ........  6
United States v. United Mine Workers, 330 U.S. 258

20, 32, 33, 34, 35,36

Williams v. North Carolina, 317 U.S. 287 ..................... 38
Wood v. Georgia, 370 U.S. 375   ................................40,41
Worden v. Searls, 121 U.S. 1 4 ........................................ 34
Wright v. Georgia, 373 U.S. 284 ....................................  37

Yick Wo v. Hopkins, 118 U.S. 356 ................................ 25, 27

PAGE



VI

Statutes :

Alabama Code (Recompiled 1958), Title 13, §§4, 5, 9 .... 4

Building Code of City of Birmingham (1944), §2002.1 .. 4, 6

General Code of City of Birmingham (1944), §369 ....4, 6,17
General Code of City of Birmingham (1944), §597 .......  4, 6
General Code of City of Birmingham (1944), §1159..... 3, 8,

19, 20, 21, 25, 27, 
29, 30, 31, 41,43

28 U.S.C. §1257(3) ..............................................................  2

Other Authorities:

Congress and the Nation 1945-1964: A  Review of Gov­
ernment and Politics in the Postwar Years (Congres­
sional Quarterly Service, 1965) ...................................  5, 6

Note, Amsterdam, The Void-for-Vagueness Doctrine 
in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960) .. 23

1963 Report of the United States Commission on Civil 
Rights (Government Printing Office, 1963) .............5,6,7

United States House of Representatives, Committee on 
the Judiciary, 88th Congress, 1st Session, Hearings 
on Civil Rights, Part II ...

PAGE

7



I n  the

Olflurt it! %  Imtpft #tat£0
O ctober T erm , 1965 

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

W yatt  T ee W alker , M artin  L u th er  K in g , J r ., R alph  
A bernath y , A. D. K in g , J. W. H ayes, T. L . F ish er , 
F . L . S h u ttlesw orth  and J. T. P orter,

Petitioners,

Cit y  oe B ir m in g h a m , a Municipal Corporation 
of the State of Alabama.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ALABAMA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Alabama entered 
in the above entitled cause December 9, 1965, infra, p. 30a, 
rehearing denied January 20, 1966, infra, p. 32a.

Citations to Opinions Below

The opinion of the Supreme Court of Alabama is re­
ported at ------  Ala. ------ , 181 So.2d 493 (1965), and is
printed in the Appendix hereto, infra, pp. 8a-29a. The 
opinion of the Circuit Court for the Tenth Judicial Cir­
cuit of Alabama (Jefferson County) is unreported, but is 
printed in the Appendix hereto, infra, pp. la-7a.



2

Jurisdiction

The judgment of the Supreme Court of Alabama was 
entered December 9, 1965, infra, p. 30a. Motion for re­
hearing was denied by the Supreme Court of Alabama 
January 20, 1966, infra, p. 32a. Petitioners’ time for filing 
petition for writ of ceritorari was extended to and includ­
ing June 19, 1966 by an order signed by Mr. Justice Black 
on April 13, 1966.

The jurisdiction of this Court is invoked under 28 U.S.C. 
§1257(3), petitioners having asserted below and asserting 
here deprivation of rights secured by the Constitution of 
the United States.

Questions Presented

I. Whether petitioner’s convictions for contempt for 
alleged disobedience of an ex parte injunction restraining 
certain protest demonstrations against racial segregation 
violate the First Amendment and the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment 
on the ground that:

A. The injunction was unconstitutional because,

1. The terms of the injunctive decree were imper­
missibly vague;

2. The injunction enforced an ordinance punishing 
parades without permits which is unconstitutional on 
its face and as applied on due process and equal pro­
tection grounds;

3. The trial court improperly excluded evidence 
bearing on the unconstitutional administration of the 
parade ordinance;



3

B. There was no evidence that petitioners violated 
the terms of the injunction’s prohibition against “un­
lawful” parades and demonstrations I

II. Whether the court below was correct in holding that 
even if the injunction unconstitutionally restrained free 
expression, petitioners could be held in contempt for fail­
ure to obey it?

III. Whether petitioners M. L. King, Jr., Abernathy, 
Walker and Shuttlesworth were denied due process by 
being punished in part because of constitutionally pro­
tected statements to the press criticizing the ex parte 
injunction and Alabama officials?

IY. Whether petitioners Hayes and Fisher were denied 
due process by conviction without any evidence that they 
had notice of or knowledge of the terms of the injunction?

Constitutional and Statutory Provisions Involved

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

2. This case also involves the following ordinance of the 
City of Birmingham, a municipal corporation of the State 
of Alabama:

General Code of City of Birmingham, 
Alabama (1944), §1159

It shall be unlawful to organize or hold, or to assist 
in organizing or holding, or to take part or participate 
in, any parade or procession or other public demon­
stration on the streets or other public ways of the 
city, unless a permit therefor has been secured from 
the commission.



4

To secure such permit, written application shall he 
made to the commission, setting forth the probable 
number 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 other public ways over, 
along or in which it is desired to have or hold such 
parade, procession or other public demonstration. The 
commission shall grant a written permit for such 
parade, procession or other public demonstration, pre­
scribing the streets or other public ways which may 
be used therefor, unless in its judgment the public wel­
fare, peace, safety, health, decency, good order, morals 
or 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.

3. The following Alabama statutes and Birmingham mu­
nicipal ordinances involved are set out in the Appendix, 
infra, pp. 33a to 35a:

Code of Alabama (Recompiled 1958), Title 13, §§4, 5, 9;

General Code of City of Birmingham, Alabama (1944), 
§§369, 597;

Building Code of City of Birmingham, Alabama (1944),
§2002.1

Statement

A. General Background

These cases involve judgments of contempt adjudicated 
against petitioners by the Circuit Court of Birmingham,



5

Alabama, for peaceful protest demonstrations against 
racial segregation on two occasions, contrary to an ex 
parte injunction ordering them to refrain from “unlaw­
ful” parades, and for allegedly speaking in a contumacious 
manner about the court which issued the injunction. The 
case involves, of course, certain discrete acts of petitioners. 
But these acts have limited meaning unless seen in their 
historical context. Petitioners, therefore, introduce this 
Statement by reference to officially documented facts which 
put the issue in perspective.

In early 1963, Birmingham. Negroes appealed to the 
public conscience through peaceful protest demonstrations 
in an effort to secure redress of their grievances, since 
other avenues were severely limited. Only 11.7% of 
Negroes of voting age were registered to vote in 1962 
in Jefferson County (Birmingham), despite long-standing 
suits against voting discrimination by the United States 
and private individuals.1 This situation was reflected in 
the fact that no Negroes were employed as city police 
officers, tax officials, government lawyers, court officials, 
officials in the public health or public works department 
in the City of Birmingham, except in the performance 
of maintenance, janitorial or similar duties (R. 188). A 
“ self-proclaimed white supremacist, Eugene (“Bull” ) Con­
nor,” was Commissioner of Public Safety, the head of 
the police department and one of the three governing 
commissioners of the City.2

11963 Report of the United States Commission on Civil Rights (Gov­
ernment Printing Office, 1963), p. 32.

2 Congress and the Nation 1945-1961: A Review of Government and 
Politics in the Postwar Years (Congressional Quarterly Service, 1965), 
p. 1604.



6

Segregation of the white and Negro races was enforced 
by law in virtually every aspect of public life in Birming­
ham.8 Municipal ordinances provided for segregation in 
restaurants, places of entertainment, and sanitation facili­
ties.3 4 5 Gober v. Birmingham, 373 U.S. 374 (1963), decided 
following events involved in the instant case, held that 
enforcing the municipal segregation ordinances through 
trespass convictions denied equal protection of the laws. 
No Negroes attended schools with whites in Birmingham 
or elsewhere in Alabama during the school year 1962-63.6 
In June 1963, just after the Birmingham demonstrations, 
at the University of Alabama (Tuscaloosa) Governor 
George C. Wallace carried out his 1962 campaign pledge 
“ to stand in the schoolhouse door” to prevent integration 
of Alabama’s schools, in the face of a federal court order.6

But despite the fact that an appeal to conscience through 
peaceful protests against legally enforced segregation was

3 Alabama had enacted sweeping racial segregation laws which were 
applicable in Birmingham. In United States v. State of Alabama, 252 
F. Snpp. 95, 101 (M.D. Ala. 1966), Circuit Judge Rives pointed out 
in 1966 that “ there are still forty-four sections of the Alabama Code 
dedicated to the maintenance of segregation.” The opinion recounts 
many aspects of the official policy of segregation and cites the statutes 
and eases.

4 Birmingham municipal ordinances provided, among other things, that 
places for the serving of food (§369 General Code), places for the 
playing of certain games (§597 General Code), and toilet facilities 
(§2002-1 Building Code) must be segregated (R. 110). These ordinances 
are printed in the Appendix hereto, infra, p. 33a.

5 1963 Report o f the United States Commission on Civil Rights, supra, 
p. 65.

6 Congress and the Nation 1945-1964, supra, p. 1601.



7

an appropriate response to the situation, the United States 
Civil Eights Commission concluded in its 1963 Report that:

The official policy in . . . Birmingham, throughout 
the period covered by the Commission’s study, was 
one of suppressing street demonstrations. While 
police action in each arrest may not have been im­
proper, the total pattern of official action, as in­
dicated 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.7

Referring to the Birmingham situation, President Ken­
nedy in June 1963 submitted a broad civil rights program 
to the Congress which became the Civil Rights Act of 1964. 
The President addressed the American people in a nation­
wide television address and made “an appeal to conscience 
—a request for their cooperation in meeting the growing- 
moral crisis in American race relations.” 8

B. Events Leading to the City of Birmingham’s 
Prayer for Injunction

Petitioners Wyatt Tee Walker, Martin Luther King, Jr., 
Ralph Abernathy, A. D. King, J. W. Hayes, T. L. Fisher, 
F. L. Shuttlesworth and J. T. Porter are members and

7 1963 Report of the United States Commission on Civil Bights, supra, 
p. 112.

8 United States House of Representatives, Committee on the Judiciary, 
88th Congress, 1st Session, Hearings on Civil Bights, Part II, pp. 1446- 
1447. In his message to the Congress, the President said:

“ The venerable code of equity law commands ‘for every wrong, 
a remedy.’ But in too many communities, in too many parts of 
the country, wrongs are inflicted on Negro citizens for which no 
effective remedy at law is clearly and readily available. State and 
local laws may even affirmatively seek to deny the rights to which 
these citizens are fairly entitled—”



8

officers of the Alabama Christian Movement for Human 
Eights and/or the Southern Christian Leadership Con­
ference, which seek to eliminate racial segregation through 
constitutionally protected activities such as free speech and 
picketing, through the courts, and other legal means (R. 
260, 361, 385). An Alabama Department of Public Safety 
investigator assigned to “racial” problems testified that 
the organizations’ “ teachings have been non-violent” (E. 
276), and “ the general theme is non-violence in every pro­
gram” (E. 277).

Objecting to legally enforced racial segregation in the 
City of Birmingham described above, these organizations 
began a program of peaceful protests in April 1963 which 
were part of the series described above. Some protests 
took the form of sit-ins in the face of the Birmingham 
ordinance requiring segregation in eating* establishments.9

Other protests took different form. Officers of the or­
ganizations, aware that city officials might view some of 
these protests as “ parades” requiring city permits,10 on 
several occasions attempted to secure permits. Mrs. Lola

9 On April 5, 1963, several Birmingham Negro citizens seated them­
selves at the lunch counter in Lane’s Drug Store, a business establish­
ment open to the general public; the waitress asked if she could help 
them and each ordered a cup of coffee. Shortly thereafter the manager 
appeared with a city police officer who arrested them for “ trespass after 
warning” (R. 113-114). A  similar incident occurred the same day, when 
four Negro citizens of Birmingham sought service at the Tutwiler Hotel 
Coffee Shop (R. 115-116).

On April 9, several Negro citizens entered the Bohemian Bakery, a 
business establishment open to the general public, obtained food in the 
cafeteria line and seated themselves. Shortly thereafter the store manager 
appeared with some city policemen. One officer said, “What should we 
charge them with?” ; another answmred, “ Trespass” ; and another said, 
“ Give them disorderly conduct, too.” Each member of the group was 
ordered to rise and was searched; they were arrested and taken to city 
jail (R. 116-117).

10 See text of §1159, General Code of City of Birmingham, supra, pp. 
3-4.



9

Hendricks, a member of the Alabama Christian Movement 
for Human Rights, authorized by its president, Rev. Shut- 
tleswortk, on April 3, 1963, went to the Police Department 
and asked to see the person in charge of issuing permits, 
and was directed to Police Commissioner Eugene (“Bull” ) 
Connor’s office in City Hall. When Commissioner Connor 
received her, she said, “We came up to apply or see about 
getting a permit for picketing, parading, demonstrating,” 
and asked if he could issue the permit, or refer her to 
other persons who would issue it. Commissioner Connor 
replied, “No you will not get a permit in Birmingham, 
Alabama to picket. I will picket you over to the city jail.” 
He repeated that twice (R. 418-421).

On April 5, Rev. Shuttlesworth, President, and N. H. 
Smith, Secretary, of the Alabama Christian Movement, 
sent a telegram to Police Commissioner Connor at City 
Hall, requesting “ a permit to picket peacefully against the 
injustices of segregation and discrimination in the gen­
eral area of Second, Third and Fourth Avenues on the 
east and west sidewmlks of 19th Street on Friday and Sat­
urday April Fifth and Sixth. We shall observe the normal 
rules of picketing. Reply requested” (R. 412-416, 484). 
Commissioner Connor replied that he could not grant such 
permits since this was the responsibility of the entire City 
Commission and said, “I insist that you and your people 
do not start any picketing on the streets in Birmingham, 
Alabama” (R. 352-355, 484).

Petitioners offered to prove below that the City Com­
mission never issued permits for parades or marches; that 
these were, in fact, issued by the City Clerk at the request 
of the Traffic Department without authority of statute or 
ordinance (R. 344-348, 354). The Court, however, ruled 
that since the law required action by the Commission, it 
was not relevant to show whether the Commission in fact



10

followed the statutory procedure and refused to hear the 
proof (R. 348-350).

On April 6, at about 12:30 P.M., about 42 persons left 
the Gaston Motel in Birmingham and walked two abreast 
towards the City Hall to petition the city government for 
redress of grievances. They were orderly and obeyed all 
traffic signals. Police officers stopped them and inquired 
whether they had a parade permit. Upon answering “No”, 
they were arrested for “parading without a permit” and 
taken to the city jail (R. 112-113). April 7, at about 4 
P.M., a similar incident occurred (R. 111-112). April 10, 
at about noon, about ten Negro citizens walked together 
towards City Hall carrying picket signs, intending to picket 
peacefully to protest the city’s segregation policy. The 
Chief of Police stopped them before they reached City 
Hall, asked whether they had a permit to picket; upon say­
ing they did not, he arrested them (R. 118-119).

Petitioners offered evidence below on the question of 
how the permit statute was applied, to show that it was 
being applied discriminatorily against them. However, 
Chief Inspector W. J. Haley of the Birmingham Police 
Department, was not allowed to answer the question “Isn’t 
what is customarily known as parades something with 
bands and signs and— !” (R. 234), or the question “ Have 
you in your twenty-odd years of experience, yourself, do 
you know of your own knowledge of any other group of 
people similarly situated being arrested for parading with­
out a license!” (R. 232). Inspector Haley had seen school 
children marching in two’s to the auditorium or to the 
museum or to the City Hall, but did not believe this con­
stituted a parade and did not challenge them for parading 
without a permit (R. 234). He implied that what made 
petitioners’ processions “ parades” was that the leaders 
(clergymen) were dressed in robes (R. 234). Haley stated



11

that some parades were considered “legal” in Birmingham, 
but petitioners were not permitted by the court to ascer­
tain what types of parades were allowed (R. 233).

C. The Injunction

On April 10, the City of Birmingham filed an ex parte 
bill for injunction against petitioners in the Circuit Court 
for the Tenth Judicial Circuit of Alabama, Equity Divi­
sion, Jefferson County (R. 65-82). The City alleged that 
from April 3 through April 10, petitioners sponsored and 
participated in “ sit-in” demonstrations, “ trespasses” or 
“ invasions” into the lunch counters of business establish­
ments where food is served to customers, street proces­
sions with the intent to march on City Hall without a 
permit, and picketing places of business (R. 70-72), and 
that one man in a crowd “ attacked a police dog of the City 
of Birmingham, a member of the Canine Corps” (R. 72). 
The City alleged that “ the present acts and conduct of 
the respondents [petitioners] hereinabove alleged, is a part 
of a massive effort by respondents [petitioners] and those 
allied or in sympathy with them to forcibly integrate all 
business establishments, churches, and other institutions 
of the City of Birmingham” (R. 73).11

The bill for injunction was presented to W. A. Jenkins, 
Jr., Circuit Judge of the Tenth Judicial Circuit of Ala­
bama, without notice to petitioners, at 9 :00 P.M., April 10 
(R. 65-84, 120); a temporary injunction immediately is­
sued enjoining petitioners from:

11 The City also alleged, as the basis for injunctive relief, that “ the 
said actions and conduct aforesaid are calculated to cause and if allowed 
to continue will likely cause injuries or loss of life to Police Officers of 
the City of Birmingham and have caused and will likely to continue to 
cause damage to property owned by the City of Birmingham in the 
operation of its Police Department and will continue to be an undue 
burden and strain upon said Police Department” (R. 73).



12

Engaging in, sponsoring, inciting or encouraging mass 
street parades or mass processions or like demonstra­
tions without a permit, trespass on private property 
after being warned to leave the premises by the owner 
or person in possession of said private property, con­
gregating on the street or public places into mobs, and 
unlawfully picketing business establishments or public 
buildings in the City of Birmingham, Jefferson County, 
State of Alabama or performing acts calculated to 
cause breaches of the peace in the City of Birmingham, 
Jefferson County, in the State of Alabama or from 
conspiring to engage in unlawful street parades, un­
lawful processions, unlawful demonstrations, unlawful 
boycotts, unlawful trespasses, and unlawful picketing 
or other like unlawful conduct or from violating the 
ordinances of the City of Birmingham and the Stat­
utes of the State of Alabama or from doing any acts 
designed to consummate conspiracies to engage in said 
unlawful acts of parading, demonstrating, boycotting, 
trespassing and picketing or other unlawful acts, or 
from engaging in acts and conduct customarily known 
as “kneel-ins” in churches in violation of the wishes 
and desires of said churches (R. 76-77).

D. Continuation of Peaceful Protests Against 
Segregation

After the City of Birmingham obtained the injunction, 
petitioners Martin Luther King, Jr., Shuttles worth, Ab­
ernathy and Walker issued a public statement (in the 
form of a press release) on April 11, saying in part:

In our struggle for freedom we have anchored our 
faith and hope in the rightness of the Constitution and 
the moral laws of the universe. . . . However we are 
now confronted with recalcitrant forces in the Deep



13

South, that will use the courts to perpetuate the un­
just and illegal system of racial separation. Alabama 
has made clear its determination to defy the law of 
the land. Most of its public officials . . , have openly 
defied the desegregation decision of the Supreme 
Court. We would feel morally and legal responsible 
to obey the injunction if the courts of Alabama ap­
plied equal justice to all of its citizens. . . .  We cannot 
in all good conscience obey such an injunction which 
is an unjust, undemocratic and unconstitutional mis­
use of the legal process. We do this not out of any 
disrespect for the law but out of the highest respect 
for the law. . . . Out of our great love for the Constitu­
tion of the U.S. and our desire to purify the judicial 
system of the state of Alabama, we risk this critical 
move with an awareness of the possible consequences 
involved (R. 305-307, 482-483).

On Good Friday (April 12) and Easter Sunday (April 
14) some of the petitioners participated in peaceful protest 
demonstrations against segregation. On both occasions they 
notified city police in advance to aid them in the perform­
ance of their duties (R. 231, 235, 269-271) and police ap­
peared at the protests (R. 406-407). Police did not permit 
automobiles containing white persons, nor any white pe­
destrians, to enter the predominantly Negro residential 
area where the protest demonstrations were to begin (R. 
210, 225).

On both Good Friday and Easter Sunday some of the 
petitioners and about 50 to 60 others left church after mid­
day services, walking in orderly fashion two by two on 
the sidewalk. They had informed city officials that they 
intended to proceed to City Hall. They were joined by sev­



14

eral hundred others who had been permitted by the police 
to congregate near the church (R. 209-210, 219, 223, 231, 
235, 262-263, 284-285). Those who came from church 
walked in columns of two’s; those who joined them were 
not in columns but walked abreast, children in front, older 
people behind (R. 225). No band played, nor were there 
any uniformed persons among the walkers (R. 330-331), 
nor were there any placards (R. 230). They did not cross 
against red lights or violate traffic regulations (R. 216). 
Police described them as orderly, and said that at all times 
they had the situation under control; and that law and 
order were maintained (R. 216, 219, 238, 332, 357).

On both occasions persons in the walk from the churches 
including petitioners, were arrested within a few blocks 
of the church, and charged with parading without a permit 
in violation of §1159.

E. Contempt Judgment: How the Federal Questions 
Were Raised and Decided Below

On April 15, petitioners filed a “motion to dissolve in­
junction and/or application for stay of execution pending 
hearing,” in which they asserted that the injunction denied 
them due process of law under the Fourteenth Amendment 
because it was issued without notice to them, because it 
was excessively vague, because it was a prior restraint on 
free speech protected by the First Amendment, because it 
was designed to enforce segregation, because it was based 
upon a complaint which described only constitutionally pro­
tected conduct, and because the ordinance upon which it 
was based was excessively vague (R. 100-119). Petitioners 
also filed a demurrer (R. 176-178), an answer (R. 178-180), 
and an amended answer (R. 186-189) to the bill for in­



15

junction in which they raised similar constitutional claims. 
After petitioners filed their motion to dissolve the injunc­
tion, the City of Birmingham filed a motion for an order 
to show cause why petitioners should not be held in con­
tempt for violating the ex parte temporary injunction (R. 
119-144). The court ruled that even though petitioners had 
filed their motion to dissolve first, it would consider the 
City of Birmingham’s show cause order for contempt first 
(R. 194-195).

In response to the City of Birmingham’s show cause 
order for contempt, petitioners filed a “motion to discharge 
and vacate order and rule to show cause” saying that they 
had not violated the injunction because it prohibited en­
gaging in or encouraging others to eng*age in “unlawful” 
conduct specified therein, whereas the petitioners’ conduct 
was lawful conduct protected by the First Amendment and 
the due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United States. 
Petitioners also said that the original bill for injunction 
upon which the temporary injunction was based did not 
show that they had engaged in unlawful conduct but that 
they had engaged in conduct protected by the First and 
Fourteenth Amendments (R. 181-182).

In their answer to the show cause order, petitioners de­
scribed the lawful conduct protected by the First and 
Fourteenth Amendments in which they had engaged:

a) Walking two abreast in orderly manner on the pub­
lic sidewalks of Birmingham observing all traffic regu­
lations with prior notice having been given to city 
officials in order to peacefully express their protest 
against continuing racial discrimination in Birming­
ham.



16

b) Peaceful picketing in small groups and in orderly 
manner of publicly and privately owned facilities.

c) Requesting service in privately owned stores open 
to the general public in exercise of their right to equal 
protection of the laws and due process of law which 
are denied by Section 369 of the 1944 General City 
Code of Birmingham (R. 184-185).

At the contempt hearing petitioners offered evidence on 
the issue of what constituted activity falling within the ban 
on parading without a permit, to show that this rule was 
applied discriminatorily against petitioners in violation 
of their rights to equal protection under the Fourteenth 
Amendment. The court excluded the evidence, saying “I 
think the only question was did they or did they not have a 
permit” (R. 232-234).

Petitioners also offered evidence that they requested a 
“parade” permit which was denied arbitrarily, in violation 
of the Fourteenth Amendment. This was excluded on the 
ground that they had not followed the statutory procedure 
for obtaining permits (R. 420-421).

Petitioners offered to prove that the statutory procedure 
was in fact never followed, and that it would be a denial 
of equal protection of the laws secured by the Fourteenth 
Amendment to require petitioners to follow it (R. 344-348, 
354). The Court ruled this was not relevant, and refused 
the offer (R. 348-350). The Court refused an offer of proof 
that there were no published rules and regulations pre­
scribing the manner in which permits are actually ob­
tained (R. 350).

Petitioners offered to prove that parade permits were 
freely given to white persons under similar circumstances 
and for similar activities, which denied petitioners’ Four­



17

teenth Amendment rights. The court refused this offer 
(R. 344-355, 232-234).

Petitioners offered to prove that the purpose of their 
activities was to protest against unconstitutional racial 
discrimination by exercising the right of free speech pro­
tected by the First and Fourteenth Amendments; this was 
refused (R. 360).

After presentation of the City of Birmingham’s evidence 
during the hearing on the show cause order, petitioners 
filed a “motion to exclude testimony against all respon­
dents [petitioners]” (R. 190-191) in which they asserted 
that there was no evidence showing why they should be 
punished for contempt based on “ the statements made pub­
licly at press conferences and mass meetings on April 11, 
1963,” since the evidence showed that they had “ engaged 
only in activity protected by the First Amendment and 
by the due process clause of the Fourteenth Amendment 
to the Constitution of the United States.” Petitioners T. 
L. Fisher and J. W. Hayes asserted that there was no evi­
dence showing that they were served with copies of the 
court’s injunctive order of April 10, 1963, prior to their 
arrest and imprisonment for parading without a permit on 
April 12 or April 14, 1963 (R. 191).

The court said that the basis of the show cause order, 
charging contempt, was the issuance of the press release 
containing allegedly derogatory statements about Alabama 
courts and, particularly, the injunctive order of that court, 
and petitioners’ participation in alleged parades in viola­
tion of the permit ordinance (R. 475-476). In response to 
petitioners’ claim that their acts were lawful because con­
stitutionally protected by the First and Fourteenth Amend­
ments, and that the order enjoining peaceful protests was 
void because it enforced Section 369 of the 1944 Code of 
Birmingham requiring segregation in eating facilities, the



18

Court said the parade ordinance “is not invalid upon its 
face as a violation of the constitutional rights of free 
speech as afforded to these defendants in the absence of 
a showing of arbitrary and capricious action upon the part 
of the Commission of the City of Birmingham in denying 
the defendants a permit to conduct a parade” (R. 476- 
478). The Court held petitioners in contempt (R. 478) 
and sentenced them to 5 days in jail and $50 fines (R. 480).

In petition for certiorari to the Supreme Court of Ala­
bama, petitioners made substantially the same claims as 
below, asserting that the judgment of contempt denied 
rights secured by the First and Fourteenth Amendments 
in that the punishment constituted a prior restraint on 
freedom of speech, association, and the right to petition 
for redress of grievances; that the injunction was exces­
sive and vague, contrary to the due process clause of the 
Fourteenth Amendment, particularly in the context of an 
order restraining First Amendment rights; and that the 
City of Birmingham failed to produce evidence which 
showed that petitioners did anything other than exercise 
constitutional rights of free expression, and that, there­
fore, the contempt decree was based on no evidence of 
guilt, in violation of the due process clause of the Four­
teenth Amendment (R. 24).

The Alabama Supreme Court held that because peti­
tioners admittedly continued protest demonstrations after 
the injunction issued, they violated the order against en­
gaging in parades without permit (R. 512-514). The Court 
said, “ Petitioners rest their case on the proposition that 
Section 1159 of the General City Code of Birmingham, 
which regulates street parades, is void because it violates 
the First and Fourteenth Amendments of the Constitution 
of the United States, and, therefore, the temporary in­
junction is void as a prior restraint on the constitutionally



19

protected rights of freedom of speech and assembly” (R. 
515). The Court held that “the circuit court had the duty 
and authority, in the first instance, to determine the va­
lidity of the ordinance, and, until the decision of the cir­
cuit court is reversed for error by orderly review, either 
by the circuit court or a higher court, the orders of the 
circuit court based on its decision are to be respected and 
disobedience of them is contempt of its lawful authority, 
to be punished,” and therefore affirmed petitioners’ con­
victions for contempt (R. 522).

REASONS FOR GRANTING THE WRIT

I.

Petitioners’ rights under the due process and equal 
protection clauses of the Fourteenth Amendment were 
infringed by their conviction for contempt where the 
injunction they are charged with disobeying is in viola­
tion of their First and Fourteenth Amendment rights.

Petitioners contend that suppressing their protests 
against racial segregation violated constitutional guaran­
tees. The ex parte injunctive order of April 10, 1963 
(R. 76-77), the city ordinance prohibiting parades with­
out permits which underlies the injunction (General City 
Code, 1944, Section 1159, supra, pp. 3-4), and the judg­
ment of contempt (R. 475-480), violated First and Four­
teenth Amendment guarantees of free speech and assembly. 
The case presents important issues of free assembly, speech 
and petition for redress of grievances in the context of 
the total racial segregation policy of Birmingham in 1963. 
This Court has reviewed other cases involving similar ques­



20

tions and has recognized the public importance of the is­
sues.12

The case comes here three years after the events because 
the Alabama Supreme Court kept it under advisement from 
August 22, 1963 (R. 499), until December 9, 1965. But the 
use of state court injunctive and criminal process to sup­
press peaceable assembly continues to present public ques­
tions of first importance.

The trial court rejected petitioners’ constitutional at­
tack on the injunction and the parade permit ordinance on 
the merits (R. 477-478), and held petitioners in contempt 
for disobedience of an order enjoining “unlawful parades” 
and parades without permits provided for in City Code 
§1159. (The trial court also apparently found some peti­
tioners in contempt for issuing a statement at a press 
conference which was allegedly disrespectful and in defiance 
of the court’s authority. See part III, infra.)

On certiorari the Alabama Supreme Court held that 
petitioners might be punished for disobeying the injunction, 
whether or not the injunction violated their constitutional 
rights, relying upon its interpretation of United States v. 
United MineworJcers, 330 U.S. 258 (20a-25a). With that 
view of the law, the court found it unnecessary to discuss 
the validity of the injunctive order and constitutional 
objections pressed by petitioners. Nor did the court below 
mention petitioners’ defense that their conduct did not 
violate the injunction because the order prohibited “un­
lawful parades” and their conduct was not “unlawful,” 
but was constitutionally protected.

12 Between 1961 and 1965, this Court passed on more than 30 eases 
involving sit-in demonstrations. During recent years the Court also 
passed on numerous cases involving protest marches as in Edwards V. 
South Carolina, 372 U.S. 229, and Cox v. Louisiana, 379 U.S. 536.



21

In the discussion which follows, we first urge that the 
injunctive order of April 10, 1963, and §1159 are both un­
constitutional and violate petitioners’ constitutional rights 
to free speech and assembly on various grounds including 
Fourteenth Amendment vagueness and equal protection 
claims. Second, we urge that there was no evidence of an 
“unlawful” parade forbidden by the injunction, and hence 
no evidence of guilt within the doctrine of Thompson v. 
Louisville, 362 U.S. 199, and Fields v. City of Fairfield, 375 
U.S. 248. Third, we argue that even assuming, arguendo, 
that petitioners did disobey the injunction, the state may 
not constitutionally punish disobedience of an ex parte in­
junctive order which infringes constitutional rights to 
free speech and assembly.

A. The ex  parte injunction o f  April 10, 1963, and 
Section 1159 o f  the Birm ingham  City Code violate 
petitioners’ First and Fourteenth Amendment rights.

1. Vagueness of the Injunction’s Terms.

The April 10, 1963, injunction undertook to end all Negro 
protest against the segregationist regime of Birmingham. 
The order was issued without notice or hearing on the 
basis of the City’s complaint verified by Public Safety 
Commissioner Eugene “Bull” Connor, and affidavits of 
several policemen describing certain demonstrations against 
discrimination. In broad and sweeping language the order 
undertook to prohibit, inter alia, parades without permits, 
trespasses after warning, “unlawfully picketing business 
establishments or public buildings,” “unlawful boycotts,” 
and “performing acts calculated to cause breaches of the 
peace in the City of Birmingham” (R. 76-77).

I f  this case requires review of all the injunction’s pro­
hibitions there should be no doubt of its invalidity. For 
example, the anti sit-in demonstration provision directly



22

aided the City ordinance compelling restaurant segregation 
which this Court referred to in invalidating convictions 
in Gober v. Birmingham, 373 U.S. 374, and Shuttlesworth 
and Billups v. Birmingham, 373 U.S. 262. The general 
prohibition against “Acts calculated to cause breaches of 
the peace” is plainly a vague and overbroad infringement 
of free speech and assembly. Edwards v. South Carolina, 
372 U.S. 229; Fields v. South Carolina, 375 U.S. 44; Henry 
v. Rock Hill, 376 U.S. 776; and Cox v. Louisiana, 379 U.S. 
536, 544-552.

But the trial court apparently based its contempt find­
ing only on an alleged violation of the portions of the in­
junction prohibiting certain petitioners13 “ from engaging 
in, sponsoring, inciting, or encouraging mass street parades 
or mass procession or like demonstrations without a per­
mit” and from “ conspiring to engage in unlawful street 
parades, unlawful processions, unlawful demonstrations . . . 
or other like unlawful conduct or from violating the ordi­
nances of the City of Birmingham and the Statutes of the 
State of Alabama . . . ” . The trial court never stated pre­
cisely what portion of the order it thought was violated, 
but rests on the conclusion that petitioners conducted al 
parade without a permit as well as upon alleged disrespect­
ful remarks at a press conference. There was no apparent 
reliance upon any theory that petitioners violated the 
order by any means other than parading without a per­
mit (R. 360):

The Court: The only chargn has been this particular
parade, the one on Easter Sunday and the one on

18 Petitioners J. W. Hays and T. L. Fisher were not named as respon­
dents in the injunction suit, named in the injunction order, or served with 
copies of the injunction prior to the alleged violation of the order. The 
separate arguments addressed to this situation are set forth below at 
pp. 42 to 44.



Good Friday, and on the question of the meeting at 
which time some press release was issued. Am I cor­
rect in that?

Mr. McBee: Essentially that is correct.

The Court: I don’t know of any other evidence or any 
other occasions other than those, and I see no need 
of putting on testimony to rebut something where 
there has been no proof along that line.

The Alabama Supreme Court quotes this statement and 
says that petitioners did parade or march without a permit 
contrary to the order (17a-18a).

The order is vague and overbroad insofar as it merely 
enjoins “unlawful” parades and demonstrations. A gen­
eral prohibition against “unlawful” parades requires those 
enjoined to determine at their peril the lawfulness of a 
proposed parade by reference to the wThole body of the law, 
including applicable constitutional provisions. Where the 
only guideline is the Constitution those enjoined are left 
to gauge the full range of legal and factual issues neces­
sary to a decision of whether a particular parade is con­
stitutionally protected. An injunction making the constitu­
tional boundary the line of criminality is obnoxious to all 
the objections which have led this Court to void statutes 
which encroached overbroadly on constitutionally pro­
tected conduct. First, because the constitutional boundary 
is obscure and often presents a difficult question, the in­
junction gives no fair notice, “no warning as to what may 
fairly be deemed to be within its compass.” Mr. Justice 
Harlan, concurring in Garner v. Louisiana, 368 U.S. 157, 
185, 207; see Note, Amsterdam, The Void-for-Vagueness 
Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 76 
(1960), and authorities cited in footnote 51. Second, such 
a vague proscription is readily susceptible of harsh, im­



24

proper and discriminatory enforcement. Cf. N.A.A.C.P. v. 
Button, 371 U.S. 415, 433; Thornhill v. Alabama, 310 U.S. 
88, 97-98. Lastly, such an order effectively coerces the 
citizen to surrender his right to engage in protected pro­
test through fear of punishment for contempt, and thus 
inhibits free expression. See Thornhill v. Alabama, 310 
U.S. 88, 97-98; Smith v. California, 361 U.S. 147, 150-151; 
Cramp v. Board of Public Instruction, 368 U.S. 278, 286- 
288; Bantam Boohs, Inc. v. Sullivan, 372 U.S. 58, 66-70; 
Baggett v. Bullitt, 377 U.S. 360, 378-379; Dombrowshi v. 
Pfister, 380 U.S. 479, 494.

This general prohibition against “unlawful” parades 
and demonstrations presents essentially the same question 
presented by prosecutions under generalized conceptions 
of breach of the peace in Edwards v. South Carolina, 372 
U.S. 229; Fields v. South Carolina, 375 U.S. 44; Henry v. 
Rock Hill, 376 U.S. 776; and Cox v. Louisiana, 379 U.S. 
536, 544-552. In each case the Court made clear that free 
speech and assembly may be regulated only by precise 
and narrowly drawn rules. See also Cantwell v. Connecti­
cut, 310 U.S. 296; Terminiello v. Chicago, 337 U.S. 1; 
Stromberg v. California, 283 U.S. 359; Ashton v. Kentucky,
____ U.S..........  (May 16, 1966, 34 U.S. Law Week 4398).
And, of course, the fact that the vague proscription ema­
nates from a sweeping judicial edict rather than from a 
vague legislative enactment cannot save it, because the pro­
tections of the Fourteenth Amendment apply with equal 
force to the judiciary. N.A.A.C.P. v. Button, 371 U.S. 415; 
Thomas v. Collins, 323 U.S. 516; cf. Shelley v. Kraemer, 
334 U.S. 1; Johnson v. Virginia, 373 U.S. 61; Hamilton v. 
Alabama, 376 U.S. 650; N.A.A.C.P. v. Alabama, 357 U.S. 
449, 462.



25

2. The Unconstitutionality of §1159 on Its Face and as 
Applied.

The injunction’s prohibition against parades “without 
permits” is equally invalid because the applicable permit 
requirement is in Birmingham City Code §1159 which is 
unconstitutional on its face, and as applied. Indeed, the 
Alabama Court of Appeals has held §1159 unconstitutional 
in a criminal proceeding arising from the same Good Fri­
day walk involved in this case. See Shuttlesworth v. City
of Birmingham,.......Ala. App..........., 180 So.2d. 114 (1965),
(cert, granted by Ala. Sup. Ct., January 20, 1966). Judge 
Cates wrote that the conviction was invalid on several dis­
tinct grounds, viz., because §1159 imposed an invidious 
prior restraint on free use of the streets; because it lacked 
ascertainable standards for granting or denying permits; 
because it was discriminatorily applied contrary to Yick 
Wo v. Hopkins, 118 U.S. 356; and because there was in­
sufficient evidence that §1159 was violated by the Good 
Friday walk on the sidewalks. The City’s appeal from that 
decision is now pending in the Alabama Supreme Court, 
but the invalidity of §1159 under a host of this Court’s 
decisions is plain.

The ordinance plainly fails to provide meaningful and 
constitutional standards for granting or denying permits 
and commits the decision of the right to peaceful use of 
the streets for protest to the uncontrolled discretion of 
the licensing officers. Pursuant to §1159 the Birmingham 
City Commission should grant a permit “unless in its judg­
ment the public welfare, peace, safety, health, decency, 
good order, morals or convenience require that it be re­
fused.” The ordinance requires that the applicant state 
“ the purpose for which it [any parade, procession or other 
public demonstration on the streets] is to be held or had.” 
Thus, by committing to the commissioners the right to



26

decide, in view of the purpose of a demonstration, whether 
the “public welfare,” etc., will be served, the Commis­
sioners are empowered to suppress any protest they dis­
approve of. The law is unconstitutional on its face under 
this Court’s decision in Cox v. Louisiana, 379 U.S. 536, 
553-558, and the precedents cited therein. As the Court 
stated in Cox, supra, 379 U.S. at 557-558:

It is clearly unconstitutional to enable a public official 
to determine which expressions of view will be per­
mitted and which will not or to engage in invidious 
discrimination among persons or groups either by use 
of a statute providing a system of broad discretionary 
licensing power or, as in this case, the equivalent of 
such a system by selective enforcement of an extremely 
broad prohibitory statute.

See also, Schneider v. State, 308 U.S. 147, 163-164; Lovell 
v. Griffin, 303 U.S. 444, 447, 451; Hague v. C.I.O., 307 U.S. 
496, 516; Largent v. Texas, 318 U.S. 418, 422; Saia v. New 
York, 334 U.S. 558, 559-560; NiemotJco v. Maryland, 340 
U.S. 268, 271-272; Kuns v. New York, 340 U.S. 290, 294; 
and Staub v. Baxley, 355 U.S. 313, 322-325. Cf. Shuttles- 
worth v. Birmingham, 382 U.S. 87, 90; Freedman v. Mary­
land, 380 U.S. 51, 56.

Cox v. New Hampshire, 312 U.S. 569, cited by the trial 
court, is distinguishable from this case. For in Cox there 
were no “licensing systems which vest in an adminis­
trative official discretion to grant or withhold a permit 
upon broad criteria unrelated to proper regulation of pub­
lic places.” Kuns v. New York, 340 U.S. 290, 293-294.

And, of course, the Court has “ uniformly held that the 
failure to apply for a license under an ordinance which on 
its face violates the Constitution does not preclude review



27

in this Court of a judgment of conviction under such an 
ordinance.” Staub v. Baxley, 355 U.S. 313, 319.

The Alabama Court of Appeals has held that §1159 was 
discriminatorily applied in reversing the prosecution of pe­
titioner Shuttlesworth for the Good Friday 1963 march.
Shuttlesworth v. City of Birmingham,.......Ala. App...........,
180 So.2d 114, 136-139 (1965). After analyzing the record 
in that case and in other prosecutions under the law (in 
particular, Primm v. City of Birmingham, 42 Ala. App, 657, 
177 So.2d 326 (1964)), Judge Cates concluded that the 
“ pattern of enforcement exhibits a discrimination within 
the rule of Tick Wo v. Hopkins, supra”  (180 So.2d at 139).

In this contempt proceeding, petitioners made repeated 
efforts to prove their claim of discriminatory enforcement 
in violation of the equal protection clause. (See infra, 
pp. 29 to 30). The trial court refused to admit much 
of the testimony. However, a sufficient showing was made 
to establish a violation of the equal protection clause in the 
administration of §1159.

Some parades were considered “legal” and allowed in 
Birmingham, although the trial court would not allow peti­
tioners to develop what type of parades were permitted 
(ft. 233). Repeated efforts of civil rights demonstrators 
to obtain permits were rebuffed, although the authorities 
were advised of their plans by the demonstrators them­
selves (R. 231, 235, 269, 271) and by police investigators 
(R. 219-221). When representatives of Rev. Shuttlesworth 
went to see the person in charge of issuing permits for pa­
rading, picketing and demonstrating they were referred to 
Public Safety Commissioner Eugene “Bull” Connor. Mrs. 
Lola Hendricks told Connor “We came up to apply or see 
about getting a permit for picketing, parading, demon­
strating” (R. 420), and “asked if he could issue the permit”



28

or refer her to “persons who would issue a permit.” Mr. 
Connor replied by stating:

No, you will not get a permit in Birmingham, Alabama 
to picket. I will picket you over to the City Jail 
(R. 420).

This evidence is sufficient to invalidate the ordinance and 
the convictions. Cf. Lombard v. Louisiana, 373 U.S. 267.

Two days later, Rev. Shuttlesworth sent a telegram to 
Mr. Connor (R. 484), requesting a permit to picket (R. 
484). Mr. Connor wired back that a permit “ cannot be 
granted by me individually but is the responsibility of the 
entire commission,” and then added: “I insist that you 
and your people do not start any picketing on the streets 
in Birmingham, Alabama” (R. 484).

Mr. Connor’s statement to Mrs. Hendricks plainly es­
tablishes an arbitrary and capricious administration of the 
permit law. The refusal to receive an application for a 
permit or to furnish her with information other than the 
statement that picketing would not be permitted plainly 
shows the operation of uncontrolled and abused discre­
tionary power. Mr. Connor did not even seek from Mrs. 
Hendricks any information as to the time and place of 
proposed demonstrations, the number of participants or 
any information relevant to any permissible factors in de­
ciding a permit request. Immediately when confronted 
with a representative of the Alabama Christian Movement 
for Human Rights, Connor rejected the request.

As Mr. Justice Black wrote concurring in Cox v. Loui­
siana, supra, 379 U.S. at 580-581:

I believe that the First and Fourteenth Amendments 
require that if the streets of a town are open to some 
views, they must be open to all.

*  #  #



29

And to deny this appellant and his group use of the 
streets because of their views against racial discrimi­
nation, while allowing other groups to use the streets 
to voice opinions on other subjects, also amounts, I 
think, to an invidious discrimination forbidden by the 
Equal Protection Clause of the Fourteenth Amend­
ment.

See also, the concurring opinion of Mr. Justice Clark in 
Cox, supra, 379 U.S. at 589. Under the regime of Eugene 
“Bull” Connor the streets of Birmingham were “ open to 
some views,” but not open to all. The ordinance as applied 
denied equal protection.

3. Improper Exclusion of Evidence on the Unconstitutional 
Application of %1159.

Petitioners’ various proffers of evidence which the trial 
court refused to hear demonstrate even more conclusively 
that the ordinance was not fair in its application. Indeed, 
petitioners offered to prove that the procedure specified by 
§1159 was never followed, that the city commission never 
issued permits under §1159 and that this function cus­
tomarily was performed by the City Clerk at the request 
of the Traffic Department without any statutory authority 
(R. 344-354). It was established that there were no pub­
lished rules or regulations other than §1159 (R. 350). How­
ever, the trial court would not permit witnesses to answer 
whether the city commission had ever voted on issuance of 
permits (R. 347).

If the Court should believe that the evidence is insuf­
ficient to establish an unconstitutional administration of 
the ordinance, petitioners are at the least entitled to an 
opportunity to prove the facts at a new hearing. The trial 
court’s conclusion that there was an “absence of a show­
ing of arbitrary and capricious action upon the part of



30

the Commission of the City of Birmingham in denying the 
defendants a permit to conduct a parade on the streets . . . ” 
was patently erroneous in view of the refusal to hear evi­
dence on the subject. The exclusion of such evidence was 
in itself a denial of due process of law to petitioners. Cf. 
Coleman v. Alabama, 377 U.S. 129, 133; Carter v. Texas, 
177 U.S. 442, 448-449.

B. The conviction denied due process because there 
was no evidence petitioners participated in a for­
bidden “ unlawful” parade or demonstration.

This Court has made it plain in Thompson v. Louisville, 
362 U.S. 199, and in subsequent cases applying its rule, that 
a conviction where there is no evidence of guilt denies due 
process. See Garner v. Louisiana, 368 U.S. 157; Fields v. 
City of Fairfield, 375 U.S. 248; Taylor v. Louisiana, 370 
U.S. 154; Barr v. City of Columbia, 378 U.S. 146; Shuttles- 
worth v. Birmingham, 382 U.S. 87, 93-95. Fields v. Fair- 
field, supra, makes clear that this applies as much to a con­
tempt prosecution as to other criminal charges. In such 
cases the Court has ascertained the elements of criminal­
ity and examined the record to determine if there was any 
evidence of guilt. Here petitioners were enjoined against 
“unlawful” parades in violation of the Birmingham parade 
ordinance. To sustain a conviction, the State was bound to 
prove that petitioners knowingly participated in an “ unlaw­
ful” parade.

There was no proof that the parades were unlawful. The 
arguments set forth in Part IA, above, pp. 25 to 29, 
demonstrate the invalidity of the permit requirement of 
§1159 on its face and as applied, as well as the vagueness 
of the injunction against “unlawful” parades and demon­
strations. And, of course, there was no evidence, and there 
could have been no evidence, that petitioners knew the



31

demonstrations were unlawful. There has never been any 
suggestion that the parades were unlawful except by 
reference to the permit requirement of section 1159. The 
constitutional invalidity of that provision undermines any 
possible claim that the petitioners knowingly violated the 
injunction’s prohibition against “unlawful” parades.

Neither was there any evidence that petitioners partici­
pated in any parade for which a permit was required under 
§1159. The Alabama judicial construction of §1159 as ap­
plied to the very same Good Friday events involved in 
this case is that the mere presence of a group walking 
together on the sidewalks, obeying traffic regulations and 
not walking on the roadway does not require a permit.
Shuttlesworth v. City of Birmingham,..... . Ala. App....... -  ,
180 So.2d 114, 139 (1965) (pending on certiorari). Judge 
Cates concluded that the proof “ fails to show a procession 
which would require, under the terms of §1159, the getting 
of a permit.”

The same conclusion follows with respect to petitioners 
who participated in the Easter Sunday march. They, too, 
were walking on the sidewalks, and obeyed traffic signals. 
On both occasions police blocked off traffic and had large 
numbers of officers present and in control of spectators 
whom the police permitted to gather. And on both occasions 
members of the crowd of spectators followed the people 
who came out of the church. The conviction is based on 
no evidence of guilt because there was no prohibited ‘ un­
lawful” parade, and no parade in violation of the permit 
requirement of §1159 as construed by the Alabama Court 
of Appeals.

The Alabama Supreme Court relies upon a supposed 
admission in petitioners’ brief in the court below (18a- 
19a). The brief said only that after the injunction peti­



32

tioners continued their participation in “protest demonstra­
tion.” There was no admission that petitioners participated 
in a prohibited “unlawful”  parade or demonstration or that 
they violated a valid permit requirement. To the contrary, 
petitioners’ brief argued at length that their conduct was 
constitutionally protected and that there was no evidence 
of their guilt under the doctrine of Thompson v. Louisville, 
362 U.S. 199.

I f  the Court should determine that there was no evidence 
that petitioners violated the injunction, it will be unneces­
sary to decide whether a court may validly punish violation 
of an unconstitutional ex parte injunction. Fields v. City 
of Fairfield, 375 U.S. 248.

II.

Assuming arguendo that petitioners did disobey the 
injunction, Alabama may not validly punish them be­
cause the ex  parte injunction was void as an unconstitu­
tional infringement of their rights to free speech and 
assembly.

The opinion of the Alabama Supreme Court holds that 
United States v. United Mine Workers, 330 U.S. 258, per­
mits punishment by criminal contempt for the violation 
of an ex parte injunction without regard to the constitu­
tionality of the injunctive decree. Indeed, the court below 
(unlike the court in Mine Workers) did not even discuss 
whether or not the injunctive order was valid.

The case thus presents the grave question, whether citi­
zens may be jailed for disobeying an ex parte injunctive 
order which violates their constitutionally protected rights 
to free speech, peaceable assembly and petition for the 
redress of grievances. This is a question of paramount



33

importance. Its decision may well determine whether the 
First Amendment freedoms will have continued vitality.

This Court recognized the gravity of this question by 
granting certiorari in a similar Alabama case and inviting 
the United States to participate and argue the cause orally 
as amicus curiae. Fields v. City of Fairfield, 375 U.S. 248. 
In Fields, the court found it unnecessary to decide this 
issue which had been thoroughly briefed and argued.14 15 
More recently, in Donovan v. Dallas, 377 U.S. 408, 414, in­
volving the power of states to deny access to the federal 
courts, the Court expressly declined to pass on whether dis­
obedience of an invalid order could be punished, because 
the issue had not been previously considered by the state 
court. We read the Donovan case as at least a partial con­
firmation of our view, urged in detail below, that the ques­
tion is not foreclosed by Mine Workers, supra.

First Amendment freedoms can be destroyed if citizens 
may be punished for disobeying ex parte injunctive decrees 
which violate the First Amendment. The proposition is so 
plain that it requires no elaborate analysis to demonstrate 
its validity. Plainly, some courts will use the injunctive 
power to suppress free expression of unpopular ideas.16

14 Fields v. City of Fairfield, No. 30, Oct. Term, 1963, Brief for Appel­
lants, pp. 21-36; Brief for the N.A.A.C.P. Legal Defense and Educational 
Fund, Inc. as amicus curiae urging reversal, passim; Brief for the United 
States as amicus curiae urging reversal, pp. 11-13. The United States 
pointed out in its brief (at pp. 12-13, n. 19) :

It is, of course, well settled that failure to apply for a permit 
under a licensing statute does not bar a subsequent attack on its 
constitutionality. Smith v. Cahoon, 283 U.S. 553; Lovell v. Griffin, 
303 U.S. 444; Staub v. City of Baxley, 355 U.S. 313. By a parity 
of reasoning, it may be argued that one should not be compelled to 
apply for the dissolution of a plainly invalid judicial decree in order 
to preserve the question of its constitutionality upon conviction for 
disobeying it.

15 See for example N.A.A.G.P. v. Alabama, 357 U.S. 449; id., 360 U.S. 
240 ; id., 377 U.S. 288; Congress of Racial Equality v. Douglas, 318 F.2d
95 (5th Cir. 1963).



34

Plainly, the power to enforce unconstitutional law is the 
power to govern unconstitutionally. We do not believe that 
the power of courts to defend their dignity requires or 
permits the power to destroy or “whittle away” the First 
Amendment. Cf. Re Oliver, 333 U.S. 257, 278.

The Mine Workers’ decision should be distinguished, 
limited to its non-constitutional context, or overruled. The 
result in Mine Workers did not depend on the view that 
void orders must be obeyed, because five members of the 
Court held the injunction valid.16 There was no claim in 
Mine Workers that the injunctive order was unconstitu­
tional or affected free speech rights; the possible applica­
tion of the rule against disobeying invalid orders to con­
stitutional claims was discussed only by the dissenters 
(330 U.S. at 352). The principal precedent relied on for 
the Mine Workers rule (United States v. Shipp, 203 U.S. 
563),17 was a case where the judicial order was plainly 
valid, and where there was no tenable claim that the court 
order violated the contemnor’s First Amendment or other 
constitutional rights.

16 In United States v. United Mine Workers, 330 U.S. 258, the opinion 
of the Court, by Chief Justice Yinson (joined by Justices Reed and 
Burton) held the injunction valid and stated as an alternative ground 
that disobedience of non-frivolous orders could be punished. Justices 
Black and Douglas concurred, solely on the ground that the injunction 
was valid without deciding whether violation of void orders might be 
punished. Justices Jackson and Frankfurter held the order invalid but 
agreed with C. J. Vinson and Justices Reed and Burton that invalid or­
ders could be enforced by criminal contempt. Justices Murphy and 
Rutledge dissented on the ground that the order was invalid and that 
invalid orders might not be enforced by contempt.

Thus, the contempt judgment was affirmed by a 7-2 vote. Five justices 
thought the order valid, four thought it invalid. Five thought invalid 
orders might be enforced by contempt; two justices disagreed; and two 
expressed no view.

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



35

This Court has said that “ First Amendment freedoms 
need breathing space to survive.” N.A.A.C.P. v. Button, 
371 U.S. 415, 433. A “ system of prior restraints of ex­
pression comes to this Court bearing a heavy presumption 
against its constitutional validity,” Bantam Boohs, Inc. v. 
Sullivan, 372 U.S. 58, 70. See Near v. Minnesota, 283 U.S. 
697; Thomas v. Collins, 323 U.S. 516; Freedman v. Mary­
land, 380 U.S. 51. Ex parte injunctive orders restraining 
free expression without any adversary contest of factual or 
legal issues determinative of constitutional claims, impose 
prior restraints totally devastating to the right of free ex­
pression. They should be treated with the same suspicion 
accorded to administrative prior restraints. Cf. Freedman 
v. Maryland, 380 U.S. 51, 57-59. A  rule that forbids chal­
lenge of ex parte injunctions in contempt proceedings, 
despite their unconstitutionality, creates a prior restraint 
effectively immunized from challenge.

The undeniable effect of the rule stated by the court below 
is to permit the states to jail persons for acts protected 
by the Constitution. In other contexts this Court has 
recognized that both direct and indirect state efforts to 
render constitutional rights ineffective must be prevented 
whatever the form of the state action. Compare Barrows 
v. Jackson, 346 U.S. 249, with Shelley v. Kraemer, 334 U.S. 
1. And see, Cooper v. Aaron, 358 U.S. 1,17, and cases cited.

It is argued in support of the result reached below that 
the principle stated is necessary in aid of respect for the 
courts and to preserve the rule of law through orderly 
judicial processes. A variety of decisions of this Court 
(both before and after Mine Workers, supra) demonstrate 
that this is not sound. In such cases as Johnson v. Virginia, 
373 U.S. 61 (courtroom segregation), and Hamilton v Ala­
bama, 376 U.S. 650 (witness ordered to testify despite 
racially discriminatory form of address), this Court re­



36

jected arguments that a judge’s orders, like those of a 
ship’s captain, must be obeyed whether right or wrong. See 
also, George v. Clemmons, 373 TT.S. 241 (courtroom segrega­
tion). And where a judge improperly ordered a witness to 
surrender his privilege against self-incrimination, the Court 
reversed a contempt conviction notwithstanding the affront 
to the Court’s dignity. Stevens v. Marks, 383 U.S. 234. See 
also Re Oliver, 333 U.S. 257, 278. The only difference be­
tween those cases and this one is that here the court order 
is labeled “ injunction.” Mere labels should not determine 
basic constitutional rights. N.A.A.C.P. v. Button, 371 U.S. 
415, 429.

Thomas v. Collins, 323 U.S. 516, was similiar to this 
case. There was no suggestion that disobedience of the in­
valid order required punishment notwithstanding the in­
fringement of constitutional rights. And see the pre-Mme 
Workers cases holding that no penalty could be imposed for 
disregard of void orders. Ex parte Sawyer, 124 U.S. 200; 
Ex parte Fisk, 113 U.S. 713; Ex parte Rowland, 104 U.S. 
604.

In the 19 years since Mine Workers this Court has not 
applied its principle to enforce a void decree by criminal 
contempt. Indeed, it has been distinguished or ignored in 
the context of labor disputes where no constitutional claims 
were tendered. Mine Workers was not mentioned at all 
in United Gas, Coke and Chemical Workers v. Wisconsin 
Employment Relations Bd., 340 U.S. 383, when the Court 
reversed contempt convictions on the ground that the in­
junction disobeyed was void because of federal preemption. 
In Re Green, 369 U.S. 689, the Court explicitly distinguished 
Mine Workers and reversed a contempt conviction where 
the injunction was void because Congress preempted the 
field. Re Green, supra, leads, a fortiori, to the conclusion



37

that an inhibition on state judicial power of constitutional 
(as opposed to statutory) dimension renders an injunction 
equally void.

Certainly this issue, which is so vital to the enjoyment of 
First Amendment rights, cannot turn solely on the basis 
of local practice or procedure. Punishment under an un­
constitutional injunction presents a constitutional question 
for this Court to decide apart from any issue of Alabama 
procedure. Of. Davis v. Wechsler, 263 U.S. 22, 24; Wright 
v. Georgia, 373 U.S. 284; NAACP v. Alabama, 357 U.S. 
449; NAACP v. Alabama, 377 U.S. 288.

We submit that a doctrine compelling obedience to a 
lawless judicial order will do more to promote disrespect 
for law than a contrary rule. Mr. Justice Black wrote in 
Re Oliver, 333 U.S. 257, 278:

The right to be heard in open court before one is con­
demned is too valuable to be whittled away under the 
guise of “ demoralization of the court’s authority.”

The right of free expression is equally precious, as were 
the rights involved in Johnson v. Virginia, supra; and 
Stevens v. Marks, supra. Citizens are entitled to conduct 
their affairs on the basis of the law of the Constitution as 
declared by the highest Court of the land. When they in 
good faith disobey the orders of lower tribunals on the 
ground that such orders are inconsistent with the Constitu­
tion, they must run the risk of punishment if they are 
wrong. But, they should not be punished when they are 
right. Our law has long permitted citizens assumed guilty 
of violating a valid law to go free when subsequent changes 
of law effectively repeal the criminal provisions involved. 
United States v. Chambers, 291 U.S. 217; Hamm v. Rock 
Hill, 379 U.S. 306. The law can certainly tolerate freeing



those who are finally determined to have engaged in con­
stitutionally protected activities in the face of an invalid 
ex parte injunction.

III.
Petitioners King, Abernathy, Walker and Shuttles- 

worth may not be punished for their Constitutionally 
Protected statements to the press criticizing the injunc­
tion and Alabama officials.

The trial court’s judgment of contempt seemingly rests 
in part upon the ground that statements and news releases 
by some of the petitioners contained derogatory statements 
about the Alabama courts and the injunctive order. How­
ever, the matter is not entirely clear. There is certainly 
no indication that the punishment, or any part of it, was 
imposed solely because of allegedly derogatory statements. 
I f  petitioners prevail with the arguments in Parts I and II 
above, it may be unnecessary for the Court to pass upon the 
claims made in this part. See Re Sawyer, 360 U.S. 622, 
636-638.

However, petitioners were found generally guilty of con­
tempt under an accusation relying on the alleged deroga­
tory remarks, and the trial court did consider and give 
some weight to this evidence. Thus, the conviction must 
be reversed if this or any of the charges is constitutionally 
vulnerable. This result is required by the settled principles 
enunciated in Thomas v. Collins, 323 U.S. 516, 529; Strom- 
berg v. California, 283 U.S. 369, 367-368; Williams v. North 
Carolina, 317 U.S. 287, 291-293. “ The judgment must be 
affirmed as to both [charges] or as to neither.” Thomas 
v. Collins, supra, 323 U.S. at 529.

The role played by the charge of disrespectful remarks 
requires some explanation. The City’s petition for a show



39

cause order charged petitioners Walker, Martin L. King, 
Shuttlesworth and Abernathy with contempt on the basis 
of the April 11, press release (quoted in the opinion be­
low, lla-12a).18 On April 15, Judge Jenkins ordered peti­
tioners Walker, Abernathy, Shuttlesworth and M. L. King, 
Jr. to show cause why they should not be punished for 
contempt “unless they shall publicly retract or recant the 
statements made publicly at press conference and mass 
meeting on April 11, 1963, or their intention to violate the 
injunction . . . ” (R. 46).

At trial the State put on evidence about the press con­
ference, introduced the press release, and evidence that 
King read the statement and that Shuttlesworth reaffirmed 
the matter contained in the release (R. 305-310; 482-483). 
The City also proved that when Shuttlesworth was served 
with the injunction in the middle of the night he said, 
“ This is a flagrant denial of our constitutional privileges” 
(R. 249). This and similar evidence was summarized and 
quoted by the Alabama Supreme Court (opinion below, 
infra 10a-15a).

During the trial the court said the press conference 
and the two marches were the grounds for the contempt 
charge (R. 360). Petitioners’ counsel, cognizant of the 
demand for a retraction, offered a statement explaining 
petitioners’ position (R. 421-423; 486-487); the Court re­
jected it as not “ in any way purging the contempt” (R. 
423).

18 It was alleged that the statement “ constitutes an open, defiant re­
peated and continuing day by day contempt of this court and contempt 
of said injunction, and said contempt is continued and repeated each day 
until said respondents shall publicly recant or retract same by announce­
ment by said respondents so recanting or retracting same with similar or 
equal press, radio and T.V. coverage as when said statements were made” 
(E. 42).



40

The trial court opinion noted that the petition “ charges 
the violating of the Court’s order granting the temporary 
injunction by their issuance of a press release . . . which 
release allegedly contained derogatory statements concern­
ing Alabama Courts and the injunctive order of this Court 
in particular” (la, infra). The court went on to find gen­
erally that “ the actions” (without further specification) 
of petitioners were “ obvious acts of contempt, constituting 
deliberate and blatant denials of the authority of this 
Court and its order” (4a, infra), and noted that petitioners 
had given “no apology” (5a, infra). The Alabama Su­
preme Court opinion recites the evidence but does not 
specifically rely upon anything other than the two marches 
to sustain the judgment.

To the extent that the contempt judgment was based on 
the alleged derogation of the court by petitioners’ press 
release and statements, it plainly violates First Amend­
ment rights. Garrison v. Louisiana, 379 U.S. 64; New York 
Times Co. v. Sullivan, 376 U.S. 254; Wood v. Georgia, 
370 U.S. 375; Bridges v. California, 314 U.S. 252; Penne- 
kamp v. Florida, 328 U.S. 331; Craig v. Harney, 331 U.S. 
367; cf. Holt v. Virginia, 381 U.S. 131 (attorney’s criti­
cism) ; Re Sawyer, 360 U.S. 622 (attorney’s criticism). Mr. 
Justice Brennan wrote in Garrison, supra, 379 U.S. at 
74-75:

For speech concerning public affairs is more than self- 
expression; it is the essence of self-government. The 
First and Fourteenth Amendments embody our “pro­
found national commitment to the principle that debate 
on public issues should be uninhibited, robust, and 
wide-open, and that it may well include vehement, 
caustic and sometimes unpleasantly sharp attacks on 
government and public officials.” New York Times Co. 
v. Sullivan, 376 U.S., at 270.



41

Petitioners’ statement (reprinted infra lla-12a) criti­
cized Alabama officials for perpetuating segregation and 
defying the desegregation decisions of this Court and as­
serted that the injunction was an “ unjust, undemocratic 
and unconstitutional misuse of the legal process” (lla-12a). 
Neither of the courts below made any findings or conclu­
sions appraising this statement in accord with the stan­
dards set down in Craig, supra; Bridges, supra; Pen- 
nekamp, supra; and Wood, supra. Nor was there any find­
ing, or effort to prove, that the statements were false or 
malicious under the standards of Garrison, supra.

Petitioners had a right under the First Amendment to 
say that the injunction was unconstitutional, unjust and a 
violation of their rights, and that Alabama officials were 
working to support segregation. They were surely free 
to say that the judge was wrong on his law*. Craig v. 
Harney, 331 U.S. 367, 375-377. As Mr. Justice Brennan 
wrote in Re Sawyer, 360 U.S. 622, 735 “ [djissenting opin­
ions in our reports are apt to make petitioner’s speech 
look like tame stuff indeed.” The Alabama official govern­
mental attitude toward desegregation and civil rights or­
ganizations is a matter of common repute and well known 
to this Court. See the history of litigation set forth in 
Mr. Justice Harlan’s opinion in N.A.A.C.P. v. Alabama, 
377 U.S. 288. Petitioners’ assertion that the law enforce­
ment officials of Birmingham were discriminating against 
them made basically the same point that was made by the 
Alabama Court of Appeals holding that the administration 
of City Code §1159 was discriminatory and unconstitxf-
tional. Shuttlesworth v. Birmingham,.......Ala. App........... ,
180 So.2d 114 (1965).



42

IV.

The conviction of petitioners J. W . Hayes and T. L. 
Fisher denied them due process because there was no 
evidence that they had notice of or knowledge of the 
terms of the injunction.

The conclusion of the court below that petitioners Hayes 
and Fisher had knowledge of the terms of the injunction 
is plain error. There is no evidence to support that con­
clusion. There obviously could be no punishable violation 
of an order by one who had no knowledge of its prohibi­
tions. Thomas v. Louisville, 362 U.S. 199; Lanzetta v. 
New Jersey, 306 U.S. 451.

Petitioners Hayes and Fisher were not named as par­
ties to the bill of injunction and were not named in the 
injunctive order. This was flatly acknowledged in the 
City’s petition for a show cause order (R. 38). Both 
Hayes and Fisher were alleged to have violated the in­
junction by participating in the march on Easter Sun­
day, April 14, 1963. They were not served with copies 
of the injunctive order until after their alleged violation 
of it.19

The court below concluded that Rev. Fisher knew of the 
injunction based upon his own testimony. The court men­
tions that he had attended church meetings on Friday and 
Saturday, but there was no indication how this had any 
probative value with respect to knowledge of the injunction. 
The opinion then quotes some of Fisher’s testimony on

19 Hayes acknowledged being served on April 16 (E. 397). Fisher ac­
knowledged receiving the contempt citation but said he never was served 
with the injunction (R. 362). The court below stated that Hayes and 
Fisher were not served “until after the Sunday March” (opinion below 
27a, infra).



43

cross examination; we set out in the margin the entire 
series of questions and answers.20

This testimony shows that Fisher did not admit knowl­
edge of the terms of the injunction. He specifically denied 
understanding- the order. He also denied reading about it 
in the newspapers (R. 370-371). Testimony that he was 
told that he probably would go to jail if he marched im­
plies no knowledge of the terms of the injunction since the 
marchers were arrested under §1159 of the City Code and 
not the injunction. The State offered no proof of its own 
tending to show that Fisher had knowledge of the injunc­
tion.

20 “ Q. What did you hear about the injunction? What did they
tell you about it? A. I only heard about the injunction. It wasn’t 
interpreted to me.

Q. Was it interpreted to you you would probably have to go to 
jail if you took part in that march or walk? A, Yes, but I  didn’t 
see any reason I would have to go.

Q. I understand, but you were not told if you got in that march 
you would have to go to jail? A. I was told if I walked on the 
streets of Birmingham I would have to go to jail.

Q. I am talking about this Easter Sunday procession. That is 
what they were talking about? A. That’s right.

Q. And you were told that you would go to jail if  you did, or 
probably would? A. I was never told that.

Q. You understood you would? A. Not for just walking on the 
streets o f Birmingham.

Q. You mean for walking in this procession you didn’t understand 
you would be arrested? A. I  didn’t understand I would be arrested 
for walking.

Q. You didn’t understand you would be arrested for walking? A. 
I  can’t understand it yet.

Q. You didn’t understand it then and you don’t understand it now? 
A. That’s right.

Q. All right, did anybody say anything to you about who was in­
cluded in the injunction? A. After I was confined and after the 
contempt I  read it.

Q. You have read the contempt? A. That’s right, but I haven’t 
read the injunction yet.

Q. When did you hear about the injunction? A. When did I hear 
about the injunction?

Q. Yes, not the contempt but the injunction? A. I think I told 
the detective that interviewed me that I  heard about an injunction, 
about an injunction, not any particular injunction”  (B. 368-369).



44

As to petitioner Hayes, the court below concluded he 
had knowledge of the injunction on testimony by Detec­
tive Harry Jones that he asked Hayes about the injunc­
tion, that Hayes said he knew of it; and that he was 
marching in the face of it anyway; that he was doing it 
for human dignity (R. 315). Hayes acknowledged that 
he told the detective that he had heard about the injunc­
tion (R. 402), and stated that he had heard about the 
injunction on Good Friday on TV (R. 402). He said, 
“ I just heard this news flash that an injunction had been 
issued against demonstrators in Birmingham” (R. 403). 
He said that he did not inquire about the injunction “be­
cause I had not been enjoined” (R. 403-404). Thus, there 
was no evidence that Hayes had knowledge of what the 
injunction actually prohibited. There was no showing that 
he understood it or had an opportunity to understand it. 
He was exactly correct in thinking that “he” had not been 
enjoined for he was not a party to the injunction suit 
and had not been named in the injunction.

The finding that Hayes and Fisher clearly had knowl­
edge of the order in such a way as to understand it, and 
that they committed a willful violation of it, rests only 
on speculation. This is no substitute for evidence. 
Thompson v. Louisville, 362 U.S. 199.



45

CONCLUSION

It is respectfully submitted that the petition for writ 
of certiorari should be granted.

Respectfully submitted,

J ack  Greenberg 
J am es M. N abrit, III 
N orman  C. A m aker  
L eroy I). Clark

10 Columbus Circle 
New York, New York 10019

A rth u r  D . S hores
1527 Fifth Avenue North 
Birmingham, Alabama

Orzell  B illin gsley , J r .
1630 Fourth Avenue North 

, Birmingham, Alabama
Attorneys for Petitioners

H arry H . W ach tel  
B e n ja m in  S piegel

575 Madison Avenue 
New York, New York

Of Counsel



A P P E N D I X



APPENDIX

Opinion and Decree

(Decided: April 26, 1963)

I n th e

Circu it  C ourt, T e n t h  J udicial C ircuit of A labama

Cit y  of B ir m in g h a m , a M u n icipal  C orporation of the  
S tate of A labam a ,

v.

W yatt  T ee W alker  et a l .

T h is  Cause coming on to be beard is submitted for 
decree upon the original petition of complainant to re­
quire tbe defendants, as named therein, to show cause, 
if any they have, why they should not be found guilty 
of contempt for violating this Court’s order which en­
joined the original respondents as named in the bill of 
complaint and others acting in concert with them from 
doing said unlawful acts as prohibited therein.

The said petition charges the violating of the Court’s 
order granting the temporary injunction by their issuance 
of a press release, a copy of which is attached as an 
exhibit to the petition, which release allegedly contained 
derogatory statements concerning Alabama Courts and 
the injunctive order of this Court in particular. The said 
petition further charges the violation of the said injunc­
tive order by the defendants’ participating in and con­
ducting certain alleged parades in violation of an ordinance



2a

of the City of Birmingham which prohibits parading with­
out a permit.

The defendants in answer thereto filed a general denial 
of the pertinent allegations as contained in the said peti­
tion of the City.

Evidence was thereupon taken in open Court upon the 
issues as raised by said pleadings. Upon conclusion of 
the evidence as offered by the city, the respondents’ counsel 
moved the Court to exclude the evidence as to the following 
defendants: Ed Gardner, Calvin Woods, Aberham Woods, 
Jr. and Johnny Louis Palmer and to dismiss said defen­
dants from said petition for failure of the city to offer 
proof upon which said defendants could be found guilty, 
and the Court, thereupon, granted said motion and dis­
missed said defendants. A  like motion was made at the 
conclusion of the evidence as to the Defendant, Andrew 
Young, and was taken under submission, but the Court 
is now of the opinion that said motion should be denied.

The Charges cited in the said petition constitute past 
acts of disobedience and disrespect for the orders of this 
Court and the nature of the order sought would be to 
punish the defendants for their said acts of contempt 
and would, in the opinion of this Court, constitute this 
proceeding as an action for criminal contempt.

The defendants have assumed the position throughout 
this proceeding that the acts for which they are cited 
are not unlawful acts and that they do not refuse to obey 
the lawful order of this Court, but that the acts which 
they have performed were those protected by the First 
and Fourteenth Amendments to the Constitution of the 
United States, the due process and equal protection clauses 
thereof, and by Article I, Section 25 of the Alabama Con­
stitution; that the exercise of their constitutional rights

Opinion and Decree



3a

under the above stated provisions were denied them by 
Section 369 of the 1944 Code of Birmingham; and that 
because of such denial of said rights, the order of this 
Court enjoining the violation of said ordinance was a 
void order for which they were not required to comply, 
citing as their authority, among other cases, that of Thomas 
vs. Collins. 65 Sup Ct 315

On the other hand, the City takes the position that the 
order of this Court granting the temporary injunction 
was an exercise of the authority of a Court of Equity 
over such subject matter and such individuals over which 
the Court maintained lawful jurisdiction. The City further 
takes the position that the said ordinance as it applies 
to these defendants requiring a permit to parade is on its 
face a valid and legal exercise of the police power; and 
that in order to attack its validity all the requirements 
of the said ordinance must be complied with or the defen­
dants must make a showing to a duly constituted tribunal 
that a substantial compliance was attempted and the City 
was unreasonable and arbitrary in its denial of such re­
quests. That before attacking the validity of this Court’s 
order enjoining the violation of such ordinance, the defen­
dants would be required first to seek to prove to the Court 
that such unconstitutional action in depriving the parties 
of a permit would amount to a violation of their rights 
and would require the City to issue such a permit. The 
City contends that the defendants made no valid attempt 
to secure a permit in accordance with the requirements 
of the ordinance; and that there is no evidence that if 
such request was made that the permit would have been 
denied. The City cites as its authority for its position, 
among other cases, that of Cox vs. State of New Hampshire 
61 Supreme Court 762.

Opinion and Decree



4a

It is the considered opinion of this Court that the prin­
ciples and the law as enunciated in the case of Cox vs. 
New Hampshire, supra, is controlling in this cause; and 
that the said ordinance is not invalid upon its face as a 
violation of the constitutional rights of free speech as 
afforded to these defendants in the absence of a showing 
of arbitrary and capricious action upon the part of the 
Commission of the City of Birmingham in denying the 
defendants a permit to conduct a parade on the streets 
of the City of Birmingham. The legal and orderly processes 
of the Court would require the defendants to attack the 
unreasonable denial of such permit by the Commission 
of the City of Birmingham through means of a motion to 
dissolve the injunction at which time this Court would 
have the opportunity to pass upon the question of whether 
or not a compliance with the ordinance was attempted 
and whether or not an arbitrary and capricious denial 
of such request was made by the Commission of the 
City of Birmingham. Since this course of conduct was 
not sought by the defendants, the Court is of the opinion 
that the validity of its injunction order stands upon its 
prima facie authority to execute the same.

Under all the evidence in the case, the Court is con­
vinced beyond a reasonable doubt that the remaining 
defendants had actual notice of the existence of the pro­
hibitions, as contained in the injunction, and of the existence 
of the order itself; and that the actions of all the re­
maining defendants were, in the opinion of this Court, 
obvious acts of contempt, constituting deliberate and 
blatant denials of the authority of this Court and its 
order and were concerted efforts to both personally vio­
late the said injunctive order and to use the persuasive 
efforts of their positions as ministers to encourage and 
incite others to do likewise.

Opinion and Decree



5a

There has been no apology or indication whatsoever 
on the part of the remaining defendants to comply in the 
future with this injunctive order. Under these circum­
stances it must be expected that the full authority as 
allowed by statute must be exercised in order to protect 
the dignity of this Court of Equity and to enforce its 
lawful orders.

However, the Court feels compelled to urge upon the 
defendants to consider carefully their course of conduct 
in the future and the following words of Mr. Justice 
Frankfurter (from his concurring opinion in the case of 
the United States vs. The United Mine Workers of America 
330 US 308) should be a guide to us all when considering 
the jurisdictional authority of a Court of law:

“ The historic phrase “ a government of laws and not 
of men” epitomizes the distinguishing character of 
our political society. By putting that phrase into the 
Massachusetts Declaration of Bights, John Adams was 
expressing the aim of those who, with him, framed 
the Declaration of Independence and founded the 
Republic. This phrase was the rejection in positive 
terms of Rule by Fiat, whether by the fiat of gov­
ernmental or private power. Every act of govern­
ment may be challenged by an appeal to law, as finally 
pronounced by this Court. Even this Court has the 
last say only for a time. Being composed of fallible 
men, it may err. But revision of its errors must be 
by orderly process of law. But no one, no matter how 
exalted his public office or how righteous his private 
motive, can be judge in his own case. That is what 
courts are for. And no type of controversy is more 
peculiarly fit for judicial determination than a con­

Opinion and Decree



6a

troversy that calls into question the power for a 
court to decide.

“ Short of an indisputable want of authority on the 
part of a court, the very existence of a court presup­
poses its power to entertain a controversy, if only to 
decide, after deliberation that it has no power over 
the particular controversy.

“Whether a defendant may be brought to the bar of 
justice is not for the defendant himself to decide.

“In our country law is not a body of technicalities in 
the keeping of specialists or in the service of any 
special interest. There can be no free society without 
law administered through an independent judiciary. 
I f  one man can be allowed to determine for himself 
what is the law, every man can. That means first 
chaos then tyranny. Legal process is an essential 
part of the democratic process. For legal process is 
subject to democratic control by defined, orderly ways 
which themselves are part of law. In a democracy, 
power implies responsibility. The greater the power 
that defies law the less tolerant can this Court be of 
defiance.

“ This Court is the trustee of law and charged with the 
duty of securing obedience to it.”

It is , therefore, ordered, adjudged and decreed by the 
Court as follows:

1. That motion of Defendants, Ed Gardner, Calvin 
Woods, Aberham Woods, Jr. and Johnny Louis Palmer, 
to exclude the evidence as to said defendants and to dis­
miss said defendants as to this petition be and the same 
is hereby granted;

Opinion and Decree



7a

2. That the motion of Defendant, Andrew Young, to 
exclude the evidence as to him and to dismiss him as a 
defendant to the petition herein be and is hereby denied;

3. That the following defendants be and the same are 
hereby adjudged in contempt of this Court: Martin Luther 
King, Jr., Ralph Abernathy, A. D. King, Wyatt Tee Walker, 
Andrew Young, J. W. Hayes, N. H. Smith, Jr., James 
Bevels, T. L. Fisher, John Thomas Porter, and F. L. 
Shuttlesworth, and all of said defendants shall hereby 
stand committed to the custody of the Sheriff of Jefferson 
County, Alabama, for a period of five consecutive days 
beginning at 10:00 A. M. on Thursday, the 16th day of 
May, 1963;

4. That the said defendants as herein adjudged to be 
in contempt be and the same are also hereby fined the 
sum of Fifty (50) Dollars each and upon failure of any 
defendant to pay the said fine so imposed, the Sheriff 
of Jefferson County, Alabama, is ordered to retain the 
custody of such defendant and that said defendant, there­
upon, perform hard labor for said county for said fine 
at the rate of Three (3) Dollars per clay not to extend 
twenty (20) days;

5. That the taxing of costs in this proceeding is hereby 
reserved until such time as a hearing has been held as to 
the amended petition to show cause.

D one and ordered, this the 26 day  o f  April, 1963.

W. A. Jenkins, Jr.
C ircuit J udge, I n E quity  S ittin g .

Opinion and Decree

Filed in Office April 26, 1963.



8a

Opinion

(Decided: December 9, 1965)

THE STATE OF ALABAM A 

J udicial D epartm ent

THE SUPREME COURT OF ALABAM A 

O ctober T erm , 1965-66
6 Div. 999

Ex parte Wyatt Tee Walker, et al. 

(In re: Wyatt Tee Walker, et al.

v.

City of Birmingham, a Municipal 
Corporation of the State of 

Alabama)

Petition for Writ of Certiorari to Jefferson Circuit Court,
In Equity

C ole m a x , J u stice .

We review by certiorari convictions of petitioners for 
criminal contempt for violating a temporary injunction 
issued by the Circuit Court of Jefferson County, in equity.

On April 10, 1963, the City of Birmingham, a municipal 
corporation, presented its verified bill of complaint to one 
of the judges of the Tenth Judicial Circuit. The bill prayed 
for temporary and permanent injunctions. The judge to 
whom the bill was presented ordered the temporary in­
junction to issue upon the City’s making bond for $2,500.00.



9a

The prescribed bond was filed and injunction issued out 
of the circuit court and was served on certain of petitioners.

The return of the sheriff shows that a copy of the in­
junction was personally served on petitioners as follows :

On Martin Luther King, A. D. King, P. L. Shuttlesworth, 
Wyatt Tee Walker, and Ralph Abernathy on April 11, 1963, 
at 1:00 a.m.;

On John Thomas Porter on April 12, 1963, at 4:13 p.m.; 
and

On N. H. Smith, Jr. on April 15, 1963, at 8:35 a.m.
We have not found a return of the sheriff showing service 

on the other petitioners who were adjudged to be in con­
tempt. Notice to those not personally served is hereinafter 
discussed.

The injunction recites in part as follows:

“ T hese , therefore, are to temporarily Enjoin you 
Wyatt Tee Walker; Ralph Abernathy; A1 Hibler; 
P. L. Shuttlesworth; Martin Luther King, Jr.; Aber- 
ham Woods, Jr.; Calvin Woods; A. D. King; Alabama 
Christian Movement for Human Rights by serving 
copy on Fred L. Shuttlesworth as President, and all 
other persons in active concert or participation with 
the respondents to this action and all persons having 
notice of this action from engaging, sponsoring, in­
citing or encouraging mass street parades or mass 
processions or like demonstrations without a permit, 
trespass on private property after being warned to 
leave the premises by the owner or person in pos­
session of said private property, congregating on the 
street or public places into mobs, and unlawfully 
picketing business establishments or public buildings

Opinion



10a

in the City of Birmingham Jefferson County, State 
of Alabama or performing acts calculated to cause 
breaches of the peace in the City of Birmingham, 
Jefferson County, in the State of Alabama or from 
conspiring to engage in unlawful street parades, un­
lawful processions, unlawful demonstrations, unlaw­
ful boycotts, unlawful trespasses, and unlawful picket­
ing or other like unlawful conduct or from violating 
the ordinances of the City of Birmingham and the 
Statutes of the State of Alabama or from doing any 
acts designed to consumate (sic) conspiracies to en­
gage in said unlawful acts of parading, demonstrating, 
boycotting, trespassing and picketing or other unlawful 
acts, or from engaging in acts and conduct customarily 
known as ‘Kneel-In’s’ in churches in violation of the 
wishes and desires of said churches, until further 
orders from this Court; and this you will in no wise 
omit under penalty, etc.”

On April 11, 12, and 13, 1963, certain meetings were 
held at which some or all of petitioners were present.

On April 11, 1963, “ The Revs. King, Abernathy, and 
Shuttlesworth were seated at the round table.” Several 
copies of “a news bulletin put out by the Alabama Chris­
tians for Human Rights” were brought there by “Rev. 
Wyatt Tee Walker.” After the bulletin was distributed 
to members of the press, . . . Rev. Martin Luther King 
took one copy of it and read verbatim the entire text.” 
The paper he read appears in the record as follows:

Opinion



11a

“ C o m plain an t ’s E x h ib it  2

“ N ews fro m

“ A labam a C hristian  M ovement eor H u m an  R ights 
5051/2 No. 17th Street 
B ’ham, Ala.

“ F or R elease 12:00 Noon, April 11, 1963

“ S tatem ent  by M. L. K in g , J r ., P. L. S h u ttlesw orth , 
R alph  D. A bernath y , et al. eor E ngaging in . P eaceful 
D esegregation D emonstrations

“In our struggle for freedom we have anchored our 
faith and hope in the rightness of the Constitution 
and the moral laws of the universe.

“Again and again the Federal judiciary has made it 
clear that the priviledges (sic) guaranteed under the 
First and the Fourteenth Amendments are to (sic) 
sacred to be trampled upon by the machinery of state 
government and police power. In the past we have 
abided by Federal injunctions out of respect for the 
forthright and consistent leadership that the Federal 
judiciary has given in establishing the principle of 
integration as the law of the land.

“However we are now confronted with recalcitrant 
forces in the Deep South that will use the courts 
to perpetuate the unjust and illegal system of racial 
separation.

“Alabama has made clear its determination to defy 
the law of the land. Most of its public officials, its 
legislative body and many of its law enforcement 
agents have openly defied the desegregation decision

Opinion



12a

of the Supreme Court. We would feel morally and 
legal responsible to obey the injunction if the courts 
of Alabama applied equal justice to all of its citizens. 
This would be

“ M o r e  M o r e

MHH

— 2—

sameness made legal. However the ussuance (sic) of 
this injunction is a blatant of difference made legal.

“Southern law enforcement agencies have demonstrated 
now and again that they will utilize the force of law 
to misuse the judicial process.

“ This is raw tyranny under the guise of maintaining 
law and order. We cannot in all good conscience 
obey such an injunction which is an unjust, undemo­
cratic and unconstitutional misuse of the legal process.

“We do this not out of any desrespect (sic) for the 
law but out of the highest respect for the law. This 
is not an attempt to evade or defy the law or engage 
in chaotic anarchy. Just as in all good conscience 
we cannot obey unjust laws, neither can we respect 
the unjust use of the courts.

“We believe in a system of law based on justice and 
morality. Out o f our great love for the Constitution 
of the U. S. and our desire to purify the judicial 
system of the state of Alabama, we risk this critical 
move with an awareness of the possible consequences 
involved.

Opinion



13a

“ F o b  F u r t h e r  I n f o r m a t i o n — Phone 324-5944
Wyatt tee walker 
Public Information 
Officer”

. Shuttlesworth read from a typed statement more 
or less re-affirming what was said in the statement that 
was read by Rev. King.” Shuttlesworth made the state­
ment :

“ ‘That they had respect for the Federal Courts, or 
Federal Injunctions, but in the past the State Courts 
had favored local law enforcement, and if the police 
couldn’t handle it, the mob would.’ ”

“ . . . . Rev. Martin Luther, in response to a ques­
tion, said, ‘We will continue today, tomorrow, Satur­
day, Sunday, Monday, and on.’ . . .

Lieutenant House testified:

“ Q. All right. Now, a moment ago, you made the 
statement all three of them said that they were going 
to proceed regardless of the injunction, or words to 
that affect. I don’t recall the exact words you used. 
A. I don’t recall whether they said regardless of the 
injunction, but all three of them in their statement 
says, ‘This statement that Rev. Martin Luther King 
read was a joint statement of the three,’ and so stated 
on the top of his statement, and all three of them 
mentioned knowledge of the injunction, and said they 
were going to continue on. I believe Rev. Martin 
Luther King stated that the—just before stating, ‘We 
will continue on today, tomorrow, and Saturday, Sun­
day, and Monday, and on’, just before that remark,

Opinion



14a

lie stated that, ‘The attorneys would attempt to dis­
solve the injunction, but we will continue on today, 
tomorrow, Saturday, Sunday, Monday, and on’.

iC

“Q. What sort of reaction did you hear from those 
present, including the Rev. A. D. King? A. He said 
on three or four occasions, or two I remember specif­
ically, when he remarked, ‘Dam the torpedoes’, there 
was a loud applause by everyone in the background, 
and also the group that was gathered close by there, 
and also to ‘Give me liberty or give me death’, there 
was a lot of noise and applaud to that. There was 
applauding on several occasions. I don’t recall the 
exact terms.”

J. Walter Johnson, Jr., reporter for Associated Press, 
testified:

“Q. Were you present when the injunction was 
served? A. Yes, I was.

“ Q. You were present, and that was in the middle 
of the night, you say? A. Yes.

“ Q. Was this remark made then at that time? A. 
That direct quote, they were marching at the—just a 
minute, and I will be happy to find it. He said this 
direct—this is what Shuttlesworth said, speaking of 
the injunction handed to him: ‘This is a flagrant de­
nial of our constitutional privileges.’

“ Q. All right. A. ‘In no way will this retard the 
thrust of this movement.’ He said they would have 
to study the details. He said, ‘An Alabama injunction 
is used to misuse certain constitutional privileges that 
will never be trampled on by an injunction. That is

Opinion



15a

what they were saying that particular night right 
after the injunction.

“Q. All right, who was present there at that time? 
A. Ralph Abernathy was there, Martin Luther King, 
Mr. Shuttlesworth, Wyatt Tee Walker, and there was 
some others I did not recognize, did not know them.

“Q. Some you did not know? A. Some I did not 
know. Abernathy made a statement at that time also. 
He said, ‘An injunction nor anything else will stop the 
Negro from obtaining citizenship in his march for. 
freedom.’ ”

Elvin Stanton, news director for WSG-N Radio, testi­
fied that he was present at a meeting on April 11th, and 
that :

“A. The Rev. King said, ‘Injunction or no injunction 
we are going to march tomorrow.’ That is a direct 
quote.”

Petitioners did not obtain a permit to march or parade. 
A  march or parade occurred on Friday, April 12, and 
another march occurred on the streets of Birmingham on 
Sunday, April 14, 1963.

Willie B. Painter, investigator with Alabama Depart­
ment of Public Safety, testified that he observed the Friday 
march, that several of petitioners entered a church, that 
within several minutes a group came out of the church 
and began a parade or march in the direction of downtown 
Birmingham, that:

“A. This group was led by Rev. Martin Luther King, 
Jr., Rev. Ralph Abernathy, Rev. Shuttlesworth, as I 
recall, Rev. Bernard Lee was also in the formation

Opinion



16a

leading the group. There were several people fol­
lowing in this formation. As the group marched away 
from the church in the direction of downtown Birming­
ham a group of persons who had assembled along the 
sidewalk and the street followed this procession. This 
group of people would consist of several hundred.

“ Q. Now, do you mean the marchers or the other 
group? A. The group following the marchers. Ac­
tually the whole procession was going almost as a 
group. As the group came out of the church then the 
whole group of people who had assembled along the 
sidewalk followed along behind them and I think you 
could describe it as one procession.”

The witness, Painter, further testified that he was present 
at a church from 2:30 or 3:00 o’clock in the afternoon of 
Sunday, April 14., 1963; that he observed the petitioner, 
Walker, talking to a group “ and forming a group of people 
two or three abreast” ; that a group came out of the 
church and began walking rapidly along the sidewalk; that 
“ this large crowd of people that had gathered outside the 
church began moving along with them” ; that there were 
several hundred people within this group; that an object 
struck the windshield of one of the city motors and broke 
the windshield; that the witness saw a negro man throw 
a brick which “passed within a close range of one of the 
police officers there in the street on duty.”

James Ware, newspaper photographer, testified that a 
rock, “About the size of a large grapefruit” hit him on the 
back of the head and caused a knot which was still sore; 
that a lot of people were “hollering, apparently at the 
policemen making the arrests” ; that the witness saw only 
two rocks but heard several more falling around him;

Opinion



17a

that he was concentrating on taking pictures of what was 
happening; that he identified A. D. King and Wyatt Tee 
Walker in the picture.

The witness Ware identified four pictures, which were 
introduced into evidence and are before us. Ware identified 
the pictures as being pictures which he took of the paraders 
on Sunday afternoon. The pictures show people walking 
in and entirely occupying a street from curb to curb on 
each side and on the sidewalks.

On Monday, April 15, 1963, the City of Birmingham 
filed petition alleging that respondents had violated the 
injunction and praying that rule nisi issue to respondents 
requiring them to show cause why they should not be 
adjudged and punished for contempt. Rule nisi did issue, 
hearing was had, and those respondents who have applied 
for certiorari were adjudged guilty of contempt of the 
circuit court and committed to the sheriff for five days and 
fined Fifty dollars each. We review this judgment by 
certiorari.

On the same Monday, April 15, 1963, respondents filed 
a motion to dissolve the temporary injunction which had 
been issued on April 10, 1963.

During the hearing on the charge that petitioners had 
violated the injunction, the trial court stated the issues 
presented by the evidence as follows:

“ The Court: The only charge has been this partic­
ular parade, the one on Easter Sunday and the one 
on Good Friday, and on the question of the meeting 
at which time some press release was issued. Am I 
correct in that ?

“Mr. Me Bee: Essentially that is correct.
“ The Court: I don’t know of any other evidence 

or any other occasions other than those, and I see

Opinion



18a

no need of putting on testimony to rebutt something 
where there has been no proof along that line.”

Petitioners do not appear to deny the charge that they, 
or a number of them, did parade or march without a per­
mit contrary to the order temporarily enjoining them- 

. . . from engaging, sponsoring, inciting or encouraging 
mass street parades or mass processions or like demon­
strations without a permit . . .

Petitioners, on page 3 of brief, filed in this court July 19, 
1963, admit that “After issuance of the injunctive order, 
petitioners and others continued their participation in these 
protest demonstrations and accordingly were held in con­
tempt of the injunctive decree.” On page 3 of brief peti­
tioners say:

“ The circumstances out of which this action arose 
are well known to the court. During April and May 
1963, petitioners and others participated in protest 
demonstrations in Birmingham, Alabama in the form 
of picketing, ‘sit-ins’, and marches on the streets of 
the City of Birmingham, designed to evidence dis­
satisfaction with continuing racial segregation in that 
city and to persuade city officials and others to put an 
end to segregation. About one week after these demon­
strations began, the City of Birmingham secured an 
injunction from the Circuit Court for the Tenth Judi­
cial Circuit . designed to thwart their continuation. 
After issuance of the injunctive order, petitioners 
and others continued their participation in these pro­
test demonstrations and accordingly were held in con­
tempt of the injunctive decree. Petitioners argued 
at the contempt hearing that the injunctive decree, 
designed as it was to prevent the exercise of their

Opinion



19a

right to protest, was an invalid order. Petitioners 
reiterated this argument in the petition for certiorari 
filed herein, in the brief filed in support of the petition, 
and on oral argument before this Court on May 15, 
1963.

“Little, therefore, remains to be added to what has 
already been urged in this Court. The issuance of the 
injunctive order, seen against the backdrop of the exer­
cise by petitioners of well-established constitutional 
rights was beyond the jurisdiction of the court and 
hence void. . . . ”

In the light of petitioners’ statement in brief, it would 
be difficult to decide that petitioners did not violate the 
temporary injunction against engaging in mass street pa­
rades without a permit. Petitioners did engage in and in­
cite others to engage in mass street parades and neither 
petitioners nor anyone else had obtained a permit to pa­
rade on the streets of Birmingham.

Petitioners argue that the injunctive order is void and, 
for that reason, the judgment of contempt is void.

The circuit court, in equity, is a court of general equity 
jurisdiction and has power to issue injunctions. Section 
144 of Constitution of 1901 recites:

“ Sec. 144. A circuit court, or a court having the ju­
risdiction of the circuit court, shall be held in each 
county in the state at least twice in every year, and 
judges of the several courts mentioned in this section 
may hold court for each other when they deem it ex­
pedient, and shall do so when directed by law. The 
judges of the several courts mentioned in this section 
shall have power to issue writs of injunction, re­

Opinion



20a

turnable to the courts of chancery, or courts haying 
the jurisdiction of courts of chancery.”

§§ 1038 and 1039, Title 7, Code 1940, recite:

§ 1038. Injunctions may be granted, returnable into 
any of the circuit courts in this state, by the judges of 
the supreme court, court of appeals, and circuit courts, 
and judges of courts of like jurisdiction.”

§ 1039. Registers in circuit court may issue an in­
junction, when it has been granted by any of the judges 
of the appellate or circuit courts when authorized to 
grant injunctions, upon the fiat or direction of the 
judge granting the same indorsed upon the bill of com­
plaint and signed by such judge.”

Petitioners do not argue that there was any failure to 
observe procedural requirements in the issuance of the in­
junction. We discuss later the question of lack of service 
on some petitioners.

Petitioners rest their case on the proposition that Sec­
tion 1159 of the General City Code of Birmingham, which 
regulates street parades, is void because it violates the first 
and fourteenth amendments of the Constitution of the 
United States, and, therefore, the temporary injunction is 
void as a prior restraint on the constitutionally protected 
rights of freedom of speech and assembly.

It is to be remembered that petitioners are charged with 
violating a temporary injunction. We are not reviewing a 
denial of a motion to dissolve or discharge a temporary 
injunction. Petitioners did not file any motion to vacate 
the temporary injunction until after the Friday and Sunday 
parades. Instead, petitioners deliberately defied the order

Opinion



21a

of the court and did engage in and incite others to engage 
in mass street parades without a permit.

The Supreme Court of the United States has said:

“  . . . This Court has used unequivocal language in 
condemning such conduct, and has in United States v. 
Shipp, 203 U. S. 563 (1906), provided protection for 
judicial authority in situations of this kind. In that 
case this Court had allowed an appeal from a denial of 
a writ of habeas corpus by the Circuit Court of Ten­
nessee. The petition had been filed by Johnson, then 
confined under a sentence of death imposed by a state 
court. Pending the appeal, this Court issued an order 
staying all proceedings against Johnson. However, the 
prisoner was taken from jail and lynched. Shipp, the 
sheriff having custody of Johnson, was charged with 
conspiring with others for the purpose of lynching 
Johnson, with intent to show contempt for the order 
of this Court. Shipp denied the jurisdiction of this 
Court to punish for contempt on the ground that the 
stay order was issued pending an appeal over which 
this Court had no jurisdiction because the constitu­
tional questions alleged were frivolous and only a 
pretense. The Court, through Mr. Justice Holmes, re­
jected the contention as to want of jurisdiction, and in 
ordering the contempt to be tried, stated:

“ ‘We regard this argument as unsound. It has been 
held, it is true, that orders made by a court having 
no jurisdiction to make them may be disregarded 
without liability to process for contempt. In re 
Sawyer, 124 U. S. 200; Ex parte Fisk, 113 U. S. 713; 
Ex parte Rowland, 104 U. S. 604. But even if the 
Circuit Court had no jurisdiction to entertain John­

Opinion



22a

son’s petition, and if this court had no jurisdiction 
of the appeal, this court, and this court alone, could 
decide that such was the law. It and it alone neces­
sarily had jurisdiction to decide whether the case was 
properly before it. On that question, at least, it was 
its duty to permit argument and to take the time 
required for such consideration as it might need. 
See Mansfield, Coldwater & Lake Michigan By. Co. 
v. Swan, 111 U. S. 379, 387. Until its judgment de­
clining jurisdiction should be announced, it had au­
thority from the necessity of the case to make orders 
to preserve the existing conditions and the subject 
of the petition, just as the state court was bound to 
refrain from further proceedings until the same time. 
Eev. Stat. §766; act of March 3, 1893, c. 226, 27 
Stat. 751. The fact that the petitioner was entitled 
to argue his case shows what needs no proof, that 
the law contemplates the possibility of a decision 
either way, and therefore must provide for it.’ 203 
U. S. 573.
“ If this Court did not have jurisdiction to hear the 

appeal in the Shipp case, its order would have had to 
be vacated. But it was ruled that only the Court itself 
could determine that question of law. Until it was 
found that the Court had no jurisdiction, ‘ . . .  it had 
authority from the necessity of the case to make or­
ders to preserve the existing conditions and the sub­
ject of the petition. . . . ’

“Application of the rule laid down in United States 
v. Shipp, supra, is apparent in Carter v. United States, 
135 F. 2d 858 (1943). There a district court, after 
making the findings required by the Norris-LaG-uardia

Opinion



Opinion

Act, issued a temporary restraining order. An injunc­
tion followed after a hearing in which the court affirma­
tively decided that it had jurisdiction and overruled 
the defendants’ objections based upon the absence of 
diversity and the absence of a case arising under a 
statute of the United States. These objections of the 
defendants prevailed on appeal, and the injunction was 
set aside. Brown v. Coumanis, 135 F. 2d 163 (1943). 
But in Carter, a companion case, violations of the tem­
porary restraining order were held punishable as crim­
inal contempt. Pending a decision on a doubtful ques­
tion of jurisdiction, the District Court was held to have 
power to maintain the status quo and punish violations 
as contempt.

“ In the case before us, the District Court had the 
power to preserve existing conditions while it was de­
termining its own authority to grant injunctive relief. 
The defendants, in making their private determination 
of the law, acted at their peril. Their disobedience is 
punishable as criminal contempt.

“Although a different result would follow were the 
question of jurisdiction frivolous and not substantial, 
such contention would be idle here. The applicability 
of the Norris-LaGuardia Act to the United States in 
a case such as this had not previously received judicial 
consideration, and both the language of the Act and 
its legislative history indicated the substantial nature 
of the problem with which the District Court was 
faced.

“ Proceeding further, we find impressive authority 
for the proposition that an order issued by a court 
with jurisdiction over the subject matter and person



24a

must be obeyed by the parties until it is reversed by 
orderly and proper proceedings. This is true without 
regard even for the constitutionality of the Act under 
which the order is issued. In Howat v. Kansas, 258 
IT. S. 181, 189-90 (1922) this Court said:

“ ‘An injunction duly issuing out of a court of gen­
eral jurisdiction with equity powers upon pleadings 
properly invoking its action, and served upon per­
sons made parties therein and within the jurisdic­
tion, must be obeyed by them however erroneous the 
action of the court may be, even if the error be in 
the assumption of the validity of a seeming but void 
law going to the merits of the case. It is for the court 
of first instance to determine the question of the 
validity of the law, and until its decision is reversed 
for error by orderly review, either by itself or by a 
higher court, its orders based on its decision are to 
be respected, and disobedience of them is contempt 
of its lawful authority, to be punished.’

“Violations of an order are punishable as criminal con­
tempt even though the order is set aside on appeal, 
Worden v. 8 earls, 121 U. S. 14 (1887), or though the 
basic action has become moot, Gompers v. Bucks Stove 
& Range Co., 221 IT. S. 418 (1911).

“We insist upon the same duty of obedience where, 
as here, the subject matter of the suit, as well as the 
parties, was properly before the court; where the ele­
ments of federal jurisdiction were clearly shown; and 
where the authority of the court of first instance to is­
sue an order ancillary to the main suit depended upon 
a statute, the scope and applicability of which were

Opinion



25a

subject to substantial doubt. The District Court on 
November 29 affirmatively decided that the Norris- 
LaGuardia Act was of no force in this case and that 
injunctive relief was therefore authorized. Orders out­
standing or issued after that date were to be obeyed 
until they expired or were set aside by appropriate 
proceedings, appellate or otherwise. Convictions for 
criminal contempt intervening before that time may 
stand.

U

“Assuming, then, that the Norris-LaGuardia Act 
applied to this case and prohibited injunctive relief at 
the request of the United States, we would set aside 
the preliminary injunction of December 4 and the 
judgment for civil contempt; but we would, subject to 
any infirmities in the contempt proceedings or in the 
fines imposed, affirm the judgments for criminal con­
tempt as validly punishing violations of an order then 
outstanding and unreversed” United States v. United 
Mine Workers of America, 330 U. S. 258, 290-295.

No useful purpose would be served by further discussion 
of this point. See concurring opinion of Harlan, J., in 
In Be Green, 369 U. S. 689, 693.

"We hold that the circuit court had the duty and authority, 
in the first instance, to determine the validity of the ordi­
nance, and, until the decision of the circuit court is reversed 
for error by orderly review, either by the circuit court or 
a higher court, the orders of the circuit court based on its 
decision are to be respected and disobedience of them is 
contempt of its lawful authority, to be punished. Howat 
v. Kansas, 258 U. S. 181.

Opinion



26a

Petitioners Martin Luther King1, Jr., Ralph Abernathy, 
A. D. King, Wyatt Tee Walker, and F. L. Shuttlesworth, 
are named in the injunction and were served with a copy on 
April 11, 1963. That they were active in inciting others to 
parade and actively participated in the parades or marches 
after they were served with a copy of the injunction is 
clearly shown by the testimony. Petitioners do not seem to 
argue in brief to the contrary. As to those five of the peti­
tioners last named the judgment is due to be and is af­
firmed.

Petitioner Porter was served with a copy of the injunc­
tion on April 12, 1963, at 4:13 p.m. There is testimony 
that with respect to his participation in the parade on 
Sunday, April 14, 1963, “ Rev. Porter stated that he was 
one of the leaders.” There is other testimony that he en­
gaged in the Sunday parade. The judgment against him is 
affirmed.

The general rule is that one who violates an injunction 
is guilty of contempt, although he is not a party to the in­
junction suit, if he has notice or knowledge of the injunc­
tion order, and is within the class of persons whose conduct 
is intended to be restrained, or acts in concert wnth such a 
person. See 15 A.L.R. 387, and authorities there cited.

The instant injunction enjoins the named respondents 
“ and all other persons in active concert or participation 
with the respondents to this action.” As to the petitioners 
who were not named as parties in the bill, or were not 
served with a copy of the injunction, we come now to con­
sider the evidence going to show their knowledge of the 
terms of the injunction with respect to parades and the 
conduct of such petitioners in participating in the parades 
or marches.

Opinion



27a

Petitioners Hayes, Smith, and Fisher were not served 
with a copy of the injunction until after the Sunday march. 
Each of them participated in the Sunday parade and there 
is evidence that each of them had knowledge of the injunc­
tion prior to that parade. Fisher testified that he attended 
the Friday and Saturday meetings. He also testified:

“ Q. What did you hear about the injunction! What 
did they tell you about it? A. I only heard about the 
injunction. It wasn’t interpreted to me.

“ Q. Was it interpreted to you you would probably 
have to go to jail if you took part in that march or 
walk? A. Yes, but I didn’t see any reason I would 
have to go.

“ Q. I understand, but you were not told if you got 
in that march you would have to go to jail? A. I was 
told if I walked on the streets of Birmingham I would 
have to go to jail.

“ Q. I am talking about this Easter Sunday proces­
sion. That is what they were talking about? A. That’s 
right.”

The witness Jones, City Detective, referring to Hayes, 
testified that:

“ A. He stated he was with the leaders on the march. 
I asked him about the injunction. He knew of it, he 
said. I asked him was he just marching in the face 
of it anyway, and he said, ‘Yes, he was doing it for 
human dignity.’ ”

Jones also testified that petitioner Smith stated that he 
“had knowledge of the injunction” prior to his participa­
tion in the Sunday parade.

Opinion



28a

We think it would require of the trial court an unduly 
naive credulity to declare that the court erred in conclud­
ing that Hayes and Fisher had knowledge that inarching on 
the streets was enjoined and that they knowingly and de­
liberately violated the injunction by marching or parading 
on Sunday. As to Hayes and Fisher the judgment against 
them is affirmed.

As to petitioner Smith we reach a different result. Smith 
was not a party to the suit and was not served with a copy 
of the injunction prior to the Sunday March. He was 
bound, alike with other members of the public, to observe 
its restrictions when known, to the extent that he must not 
aid or abet its violation by others, and the power of the 
court to proceed against one so offending and punish for 
the contemptuous conduct is inherent and indisputable. 
Garrigan v. United States, 89 C.C.A. 494, 163 Fed. 16. But, 
in order to convict a person of contempt where he is not 
a party and has not been served with a copy of the order, 
it must be shown clearly that he had knowledge of the 
order for the injunction in such a way that it can be held 
that he understood it, and, with that knowledge committed 
a wilful violation of the order. Dowagiac Mfg. Co. v. Min­
nesota Moline Plow Co., 124 Fed. 736.

There is evidence that Smith “had knowledge” of the 
injunction and he testified that he had heard about the in­
junction on the radio, “Maybe Saturday,” before the Sun­
day March. It may well be that Smith was fully advised 
of the terms of the injunction, but we think a finding to 
that effect must rest on speculation rather than on a rea­
sonable inference from the testimony. The injunction re­
strains acts other than parading. Knowledge of other en­
joined acts would not be knowledge of the injunction

Opinion



29a

against parading. We hold that it is not clearly shown that 
Smith had knowledge of the injunction in such a way 
that it can be held that he understood it and with that 
knowledge committed a wilful violation of the injunction. 
The judgment of contempt against Smith is quashed.

We have not found in the record where petitioners Young 
and Bevel were served with a copy of the injunction. We 
have not found evidence to show that either of them par­
ticipated in the march on either Friday or Sunday. We are 
not persuaded that the evidence sustains the judgment of 
contempt against them, and as to Young and Bevel the 
judgment holding them in contempt is quashed.

Affirmed in part.

Quashed in part.

Livingston, C. J., and Lawson and Goodwyn, JJ., concur.

Opinion



30a

Judgment

(Decided: December 9, 1965)

THE SUPREME COURT OF ALABAMA 

Thursday, December 9, 1965

T h e  C o u r t  M e t  P u r s u a n t  t o  A d j o u r n m e n t  

Present: A l t , t h e  J u s t ic e s  

J u d g m e n t  o e  A e e i r m a n c e

6 Div. 999

Wyatt Tee Walker, et al. J e f f e r s o n  C i r c u i t  C o u r t

v  ( I n  E q u i t y

City of Birmingham

Come the parties by attorneys and the record and mat­
ters therein assigned for errors being submitted on peti­
tion for certiorari and the return thereto and briefs, and 
the same being duly examined and understood by the 
Court,

I t  i s  c o n s id e r e d , o r d e r e d , a d j u d g e d  a n d  d e c r e e d  that the 
decree of the Circuit Court insofar as it pertains to Wyatt 
Tee Walker, Martin Luther King, Jr., Ralph Abernathy, 
A. D. King, J. W. Hayes, T. L. Fisher, F. L. Shuttlesworth 
and John Thomas Porter be and the same is in all things 
affirmed.

I t  i s  f u r t h e r  c o n s id e r e d , o r d e r e d , a d j u d g e d  a n d  d e c r e e d  

that as to the petitioners, Andrew Young, N. H. Smith, Jr., 
and James Bevel, the decree of the Circuit Court adjudging



31a

Judgment

these petitioners guilty of contempt be and the same is 
hereby quashed.

I t  is f u r t h e r  o r d e r e d , a d j u d g e d  a n d  d e c r e e d  that Wyatt 
Tee Walker, Martin Luther King, Jr., Kalph D. Abernathy, 
A. D. King, J. W. Hayes, T. L. Fisher, F. L. Shuttlesworth 
and J. T. Porter, petitioners, and Jas. Esdale, Willie 
Esdale and Esdale Bail Bond Company, pay the costs in­
cident to this proceeding in this Court and in the Court 
below, for which costs let execution issue.

Opinion by Coleman, J.

Livingston, C. J., Lawson and Goodwyn, J.J., concur



32a

Denial of Rehearing

(Decided: January 20, 1966)

THE SUPREME COURT OF ALABAMA 

Thursday, January 20, 1966

T h e  C o u r t  M e t  P u r s u a n t  t o  A d j o u r n m e n t  

Present: A l l  t h e  J u s t ic e s

6th Div. 999

Wyatt Tee Walker, et al. J e e e e r s o n  C i r c u i t  C o u r t

| I n  E q u i t y

The City of Birmingham

I t  i s  o r d e r e d  that the application for rehearing filed on 
December 23, 1965, be and the same is hereby overruled.



33a

Some Ordinances o f  City o f  Birmingham, Alabama, 
Requiring Segregation by Race

General Code of City of Birmingham, Alabama (1944)

Sec. 369. Separation of races—It shall be unlawful to 
conduct a restaurant or other place for the serving of food 
in the city, at which white and colored people are served 
in the same room, unless such white and colored persons 
are effectually separated by a solid partition extending 
from the floor upward to a distance of seven feet higher, 
and unless a separate entrance from the street is provided 
for each compartment.

Sec. 597. Negroes and white persons not to play to­
gether—It shall be unlawful for a negro and a white per­
son to play together or in company with each other in 
any game of cards or dice, dominoes or checkers.

Any person who, being the owner, proprietor or keeper 
or superintendent of any tavern, inn, restaurant or other 
public house or public place, or the clerk, servant or em­
ployee of such owner, proprietor, keeper or superintendent, 
knowingly permits a negro and a white person to play 
together or in company with each other at any game with 
cards, dice, dominoes or checkers, or any substitute or 
device for cards, dice, dominoes or checkers, in his house 
or on his premises shall, on conviction, be punished as 
provided in section 4.

Building Code of City of Birmingham, Alabama (1944)

Sec. 2002.1. Toilet Facilities— Toilet facilities shall be 
provided in all occupancies for each sex, according to 
Table 2002.2 except one family living units. The number 
provided for each sex shall be based on the maximum num­
ber of persons of that sex that may be expected to use such 
building at any one time. Where negroes and whites are 
accommodated there shall be separate toilet facilities pro­
vided for the former, marked plainly “ For Negroes only.”



34a

Statutes of State of Alabama 
Conferring Contempt Powers on Courts

Code of Alabama (Recompiled 1958)

Title 13, §4. Other powers.—Every court has power:

To preserve and enforce order in its immediate presence, 
and as near thereto as is necessary to prevent interruption, 
disturbance or hindrance to its proceedings.

To enforce order before a person or body empowered to 
conduct a judicial investigation under its authority.

To compel obedience to its judgments, orders and proc­
ess, and to orders of a judge out of court, in an action or 
proceeding therein.

To control, in furtherance of justice, the conduct of its 
officers, and all other persons connected with a judicial 
proceeding before it, in every matter appertaining thereto.

To administer oaths in an action or proceeding pending 
therein, and in all other cases where it may be necessary 
in the exercise of its powers and duties.

To amend and control its process and orders, so as to 
make them conformable to law and justice.

Title 13, §5. Punishment for contempt.—For the effec­
tual exercise of the powers conferred by this chapter, the 
court may punish for contempt in the cases provided for 
in this chapter.

Title 13, § 9. Punishments by the respective courts for 
contempt.—The courts of this state may punish for con­
tempt by fine and imprisonment, one or both, as follows: 
The supreme court, by fine not exceeding one hundred dol­
lars, and imprisonment not exceeding ten days; the circuit 
courts by fine not exceeding fifty dollars, and imprisonment



35a

Statutes of State of Alabama 
Conferring Contempt Poivers on Courts

not exceeding five days; the courts of probate and county 
courts and registers by fine of not exceeding twenty dol­
lars and imprisonment not exceeding twenty-four hours; 
the courts of county commissioners, by fine not exceeding- 
ten dollars, and imprisonment not exceeding six hours; 
and justices of the peace, by fine of not exceeding six dol­
lars, and imprisonment not exceeding six hours.



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