Walker v. City of Birmingham Petition for Writ of Certiorari
Public Court Documents
October 4, 1965

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Brief Collection, LDF Court Filings. Walker v. City of Birmingham Petition for Writ of Certiorari, 1965. ea998041-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b4996f91-9cff-4a9e-b216-607f3189c358/walker-v-city-of-birmingham-petition-for-writ-of-certiorari. Accessed April 27, 2025.
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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. MEILEN PRESS INC. — N. Y. C