Davis v. Francois Brief for Appellants

    3̂ 1 s~ R. 7 ?o
l 1!  U

I n the

lu M  §>M$b (Eiwrt at Appeals
F or the F ifth  Circuit 

No. 25562

H all Davis, et al.,
Appellants,

John G. F rancois, et al.,
Appellees.

A PPE A L FROM  T H E  U N ITED  STATES DISTRICT COURT 
FOR T H E  EASTERN D ISTRICT OF LO U ISIAN A

BRIEF FOR APPELLANTS

Jack Greenberg 
Charles Stephen R alston 
M elvyn Z arr

10 Columbus Circle 
New York, New York 10019

M urphy B ell

971 S. 18th Street 
Baton Rouge, Louisiana

L olis E . E lie

Collins, D ouglas, and E lie 
2211 Dryades Street.
New Orleans, Louisiana 70113

Attorneys for Appellants



TABLE OF CONTENTS

PAGE

Statement of the Case ............................ ......................... 1

Specifications of Error .................................................... 5

A bgument :

I. The Port Allen Picketing Ordinance Is Un­
constitutional on Its Face in Violation of the 
First and Fourteenth Amendments to the Con­
stitution ........................................................ ..........  6

II. The Decision in Zwickler v. Koota Requires the 
Entry of a Declaratory Judgment of Uncon- 
stitutionality of the Port Allen Picketing Ordi­
nance .........................................................................  11

Conclusion ..........................................      16

Certificate of Service .......................................................... 17

T able of Cases

Baker v. Bindner, 274 F. Supp. 658 (W.D. Ky., 1967) 15

Cameron v. Johnson, 262 F. Supp. 873 (S.D. Miss.
1966), prob. juris, noted------ U .S.------- , 19 L.ed.2d 63
(1967) ............................................................................... 15

Carlson v. California, 310 U.S. 106 (1940) ................... 8, 9

Dombrowski v. Pfister, 380 U.S. 479 (1965) .....4 ,1 1 ,13,14
Douglas v. City of Jeannette, 319 U.S. 157 (1943) ...A, 5,11

Greenwood v. Peacock, 384 U.S. 808 (1966) ..............   4
Guyot v. Pierce, 372 F.2d 658 (5th Cir. 1967) ............. 15



u

PAGE

Hague v. C.I.O., 307 U.S. 496 (1938) ............................  7
Hughes v. Superior Court, 339 U.S. 460 (1950) ........... 8

Kelly v. Page, 335 F.2d 114 (5th Cir. 1964) ................... 8
Kunz v. New York, 340 U.S. 290 (1951) ......................  6

McNeese v. Board of Education, 373 U.S. 668 (1963) .... 12 
Milk Wagon Drivers Union v. Meadowmoor Dairies,

312 U.S. 287 (1941) ........................................................ 8
Murdock v. Pennsylvania, 319 U.S. 105 (1943) ...........  14

Schneider v. State, 308 U.S. 147 (1939) ........................  7, 9

Thornhill v. Alabama, 310 U.S. 88 (1940) ..................... 7,8

United Electrical, E & M Workers v. Baldwin, 67 
F. Supp. 235 (D. Conn. 1946) ....................................  9

Ware v. Nichols, 266 F. Supp. 564 (N.D. Miss. 1967) 15

Zwickler v. K oota,------U.S.

Statutes:

28 U.S.C. §1343 .... .............

28 U.S.C. §2283 ..................

42 U.S.C. §1983 .................

19 L.ed.2d 444 (1967)
11,12,13,14

................................  12

................................... 15,16

................................... 12,15



I n  the

Infteft States (tart nf AppraiB
F ob the F ifth  Circuit 

No. 25562

H all D avis, et al.,

— v .—
Appellants,

John G. F rancois, et al.,
Appellees.

APPE A L FROM  T H E  U N ITED  STATES DISTRICT COURT 
FOR T H E  EASTERN DISTRICT OF LOU ISIAN A

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from an order of the Honorable E. 
Gordon West, United States District Judge for the East­
ern District of Louisiana, dismissing appellants’ suit seek­
ing declaratory and injunctive relief against the picketing 
ordinance of the City of Port Allen, Louisiana, as violative 
of the First and Fourteenth Amendments to the Consti­
tution of the United States.

According to the allegations of appellants’ complaint, 
which must be taken as true since the court below granted 
appellees’ motion to dismiss, appellants are Negro citizens 
of the United States residing in West Baton Rouge Parish, 
Louisiana. Prior to July 24, 1967, they and other Negro 
citizens had been peacefully picketing the West Baton 
Rouge Parish School Board Building in the City of Port



2

Allen, Louisiana, protesting “ racist policies of the Board” 
(R. 2-3). They marched in an orderly fashion and in small 
numbers in front of the School Board’s building (R. 3). 
In no way did they obstruct pedestrian or vehicular traffic 
or block any entrances to the building (R. 3-4).

On July 24, 1967, apparently in direct response to ap­
pellants’ activities, the mayor and board of aldermen of 
Port Allen passed City Ordinance No. 11, the ordinance 
challenged by this suit.

Section I.

It shall be unlawful for more than two (2) people to 
picket on private property or on the streets and side­
walks of the City of Port Allen in front of a residence, 
a place of business, or public building. Said two (2) 
pickets must stay five (5) feet apart at all times and 
not obstruct the entrance of any residence, place of 
business, or public building by individuals or by auto­
mobiles.

Section II.

Any person who violates the provisions of this ordi­
nance shall be subject to a fine not exceeding $100.00 
or imprisonment for a period not to exceed 30 days, 
or both. (R. 4.)

Thereafter every time more than two persons appeared 
at the building and peacefully picketed, they were imme­
diately arrested and charged with violations of the ordi­
nance (R. 4-5).

Subsequent to the arrests, appellants filed a petition for 
removal of the criminal prosecutions to the United States 
District Court for the Eastern District of Louisiana. A 
motion to remand was filed by the City and the State of 
Louisiana (see, R. 39, 22, 35-36). The motion was granted



3

by the court on October 13, 1967, and all the cases were 
remanded for trial to the City Court of the City of Port 
Allen.

On August 4, 1967, during the pendency of the removal 
petition, the present action was filed in the district court. 
The complaint invoked the jurisdiction of the district court 
under 28 U.S.C. §§1331, 1343, 2201 and 2204, and was 
brought under the authority of 42 U.S.C. §§1981 and 1983. 
It sought a declaratory judgment that City Ordinance No. 
11 of the City of Port Allen, Louisiana, was unconstitu­
tional as violating the First and Fourteenth Amendments 
to the Constitution of the United States. It also sought 
a temporary restraining order and preliminary and perma­
nent injunctions against any enforcement of the ordinance 
and specifically against the arrest or prosecution of ap­
pellants or members of their class pursuant to the ordi­
nance (R. 1-7).

In addition to the facts set out above, the complaint 
alleged that in view of the fact that at all times appellants 
had picketed in an orderly manner, exercising their rights 
of freedom of speech and peaceable assembly, the ordinance 
was neither passed nor enforced in good faith. Rather, it 
was passed and enforced with the sole purpose and effect 
of harassing appellants and their supporters and discour­
aging them from picketing and otherwise exercising their 
constitutional rights (E. 4-5). It was claimed that there 
was no remedy in the state courts adequate to prevent 
the arrests and prosecutions of appellants from having a 
present “ chilling effect” on their Federal constitutional 
rights. Moreover, the arrests were discouraging others 
who were sympathetic to appellants’ position from joining 
in the picketing. Finally, it was alleged that the ordinance, 
in making it a crime for more than two persons to picket 
at one time, violated on its face the First and Fourteenth



4

Amendments to the Constitution since it was excessively 
restrictive and hence overbroad (E. 5-6).

On October 2, 1967, the defendants, the Mayor of Port 
Allen, members of the board of aldermen, the City’s police 
chief and the city judge (R. 2), filed a motion to dismiss 
for lack of subject matter jurisdiction. The motion dis­
puted none of plaintiffs’ allegations of fact but basically 
argued that equitable relief was barred by Douglas v. 
City of Jeannette, 319 U.S. 157 (1943) (R. 38-41).

Plaintiffs filed an opposition to the motion to dismiss, 
arguing that Dombrowski v. Pfister, 380 U.S. 479 (1965), 
rather than Douglas, governed their right to relief (R. 44- 
45). Attached to this opposition was an affidavit of the 
three named plaintiffs stating: (1) they, as citizens of 
Louisiana living in West Baton Rouge Parish, had been 
protesting certain policies of the School Board; (2) ordi­
nance No. 11 had caused their arrest, detention, and in­
carceration for attempting to exercise their right of free 
speech by peacefully picketing; (3) they wished to con­
tinue peaceful picketing, but not under the threat of im­
mediate prosecution for it; and (4) the enforcement of 
the ordinance’s severe limitation of the number of pick­
ets had caused and would in the future cause them ir­
reparable injury unless the ordinance was declared void 
(R. 46).

The case was heard on October 13, 1967, the same day 
the removed cases were remanded,1 on an order to show 
cause why a preliminary injunction should not issue and 
on the motion to dismiss. After hearing the arguments 
of counsel, Judge West ordered the case submitted on the

_ 1 The parties agreed that if any Federal remedy lay, it was by injunc­
tion and not by removal. See Greenwood v. Peacock, 384 U.S. 808, 829 
(1966).



5

record as it stood, i.e., oil the basis of tlie plaintiffs’ un­
contradicted complaint and affidavit. On December 8, 1967, 
Judge West handed down his order denying all relief to 
the appellants and dismissing the action. The primary 
basis for the order was that the case was governed by 
Douglas v. City of Jeannette, supra, in that no grounds 
had been presented showing that “ the intervention of a 
Federal Court in order to secure plaintiffs’ constitutional 
rights will be either necessary or appropriate” (R. 49). 
Therefore, the question of the constitutionality of the ordi­
nance “could and should be determined in the orderly 
process of a criminal proceeding brought in connection 
therewith rather than by the intervention of this Court” 
(R. 51). The lower court also expressed the opinion that 
the ordinance was “not unconstitutional on its face, and 
certainly the ordinance, on its face, does not evidence bad 
faith” (Ibid).

The court’s judgment was filed on December 13, 1967 
(R. 52), as was plaintiffs’ notice of appeal (R. 53). Also 
on December 13, application was made to this Court for 
a stay pending appeal of prosecutions of appellants and 
members of their class scheduled in the City Court of Port 
Allen for December 14. On the same day this Court 
granted the stay and subsequently expedited the appeal.

Specifications of Error

1. The court below erred in dismissing the complaint 
for lack of subject matter jurisdiction.

2. The court below erred in failing to declare the Port 
Allen picketing ordinance unconstitutional under the First 
and Fourteenth Amendments to the Constitution.



6

A R G U M E N T

I.

The Port Allen Picketing Ordinance Is Unconstitu­
tional on Its Face in Violation of the First and Four­
teenth Amendments to the Constitution.

The specific language of Ordinance No. 11 of the City of 
Port Allen, Louisiana, challanged in this action is as 
follows:

It shall be unlawful for more than two (2) people to 
picket on private property or on the streets and side­
walks of the City of Port Allen in front of a residence, 
a place of business, or public building (R. 4).2

Appellants contend that this ordinance is unconstitutional 
under the First and Fourteenth Amendments to the Con­
stitution.

Appellants start as did the Supreme Court in Kunz v. 
New York, 340 U.S. 290, 293 (1951): “ In considering the 
right of a municipality to control the use of public streets 
for the expression of . . . views, we start with the words of 
Mr. Justice Roberts:”

Wherever the title of streets and parks may rest, they 
have immemorially been held in trust for the use of the 
public, and, time out of mind, have been used for pur­
poses of assembly, communicating thoughts between 
citizens, and discussing public questions. . . . The privi­
lege of a citizen of the United States to use the streets

2 The rest of the ordinance, making it a crime for two pickets to be 
less than 5 feet apart or to obstruct building entrances, is not directly at 
issue here, sinee all arrests were made because more than two persons 
were present. The ordinance is plainly not severable.



7

and parks for communication of views on national 
questions may be regulated in the interest of all; it is 
not absolute, but relative, and must be exercised in 
subordination to the general comfort and convenience, 
and in consonance with peace and good order; but it 
must not, in the guise of regulation, be abridged or 
denied. Hague v. C.I.O., 307 U.S. 496, 515-16 (1938).

Thus, the issue presented by a city ordinance that places 
an unconditional ban on all picketing by more than two 
persons regardless of time, place, and circumstances is: Is 
such a restriction on the right to use the public streets to 
express opinions on topics important to the public justifi­
able as a necessary regulation of the use of sidewalks? 
The approach to be followed in judging such a restriction 
has been enunciated by the Supreme Court as follows:

In every case, therefore, where legislative abridgement 
of the rights is asserted, the courts should be astute to 
examine the effect of the challenged legislation. Mere 
legislative preferences or beliefs respecting matters of 
public convenience may well support regulation directed 
at other personal activities, but be insufficient to justify 
such as diminishes the exercise of rights so vital to the 
maintenance of democratic institutions. And so, as 
cases arise, the delicate and difficult task falls upon the 
courts to weigh the circumstances and to appraise the 
substantiality of the reasons advanced in support of 
the regulation of the free enjoyment of the rights. 
Schneider v. State, 308 U.S. 147, 161 (1939).

In 1940, the Supreme Court applied these principles to 
the question of whether a state could place an absolute ban 
on picketing. In Thornhill v. Alabama, 310 U.S. 88 (1940), 
the Supreme Court held that any such ban violated the 
Fourteenth and First Amendments to the Constitution since



8

peaceful picketing was a protected form of expression. In 
both Thornhill and its companion case, Carlson v. California, 
310 U.S. 106 (1940), it was indicated that the vice of the 
prohibition lay in its being sweeping and unconditional. It 
was unrelated in any way to the circumstances surrounding 
the picketing, such as time, place, the presence of violence, 
or whether entrances or exits to buildings were blocked.

On the other hand, in cases subsequent to Thornhill in 
which limitations on or prohibitions of picketing were ap­
proved, there were specific facts showing the necessity of 
such limitations. Thus, in Milk Wagon Drivers Union v. 
Meadowmoor Dairies, 312 U.S. 287 (1941), an injunction 
against picketing was justified because of evidence in the 
record that violence and intimidation accompanied the 
picketing. And in cases such as Hughes v. Superior Court, 
339 U.S. 460 (1950), picketing was held enjoinable since it 
was shown to be for a purpose ruled unlawful by the state.

Thus, the approach to be taken in judging restrictions on 
picketing is whether they are justified in light of time, place, 
and circumstances. As this Court stated in Kelly v. Page, 
335 F.2d 114, 119 (5th Cir. 1964):

And these rights to picket and to march and to assemble 
are not to be abridged by arrest or other interference 
so long as asserted within the limits of not unreason­
ably interfering with the right of others to use the 
sidewalks and streets, to have access to store entrances, 
and where conducted in such manner as not to deprive 
the public of police and fire protection.

Appellants contend that these standards should be ap­
plied in deciding the constitutionality of the Port Allen 
ordinance which, while not prohibiting outright all picket­
ing, so severely limits and restricts the number of pickets 
so as to interfere substantially with its effectiveness.



9

Appellants, of course, do not argue that no restriction 
on the number of pickets could be valid.3 Clearly, in situa­
tions where there is mass picketing so that the use of the 
streets or access to or from buildings is interfered with, 
limitation on numbers may be imposed. See, e.g., United 
Electrical, JR. & M. Workers v. Baldwin, 67 F. Supp. 235 
(D. Conn. 1946) (in a labor dispute, an injunction was 
proper that temporarily limited pickets to fifteen where 
evidence showed mass picketing that blocked access to en­
trances). Nor do appellants contend that under no imagin­
able circumstances could a limit of two pickets ever be valid.

What is urged is that a flat, unconditional, absolute ban 
on any picketing by more than two persons regardless 
of circumstances has not been justified, cannot be justified, 
and must fall. Such a limitation cannot be supported by 
any legitimate interest of the city in restricting First 
Amendment rights involving the use of public sidewalks, 
viz., the convenience of the public, access to buildings, 
and the free use of sidewalks. It is simply inconceivable 
that three, four, or five persons walking peacefully and in 
an orderly fashion in front of a public building would auto­
matically interfere with the use of sidewalks or with access 
to the buildings. Certainly the city has not made any such 
showing here. Rather, the record is uncontroverted that 
there has been no blockage of streets or doorways. The un­
reasonably small number of pickets allowed regardless of 
circumstances thus is arbitrary and wholly unrelated to any 
valid governmental purpose.4

Indeed, applying the standard of Schneider v. State, 
supra, and examining “the effect of the challenged legisla­

3 Cf., the language in Carlson v. California, 310 U.S. 106, 112 (1940).
4 Those valid purposes could be adequately accommodated by an ordi­

nance that made it unlawful to picket in such a way so as to interfere 
with pedestrian or vehicular traffic or with access to buildings.



10

tion” and weighing “ the substantiality of the reasons ad­
vanced in support of the regulation of the free enjoyment 
of the rights,” 308 U.S. at 161, only one conclusion is pos­
sible. The Port Allen picketing ordinance, by restricting the 
number of pickets to two persons, was intended to and has 
the effect of limiting and destroying the effectiveness of 
appellants’ protected activities. Two persons obviously can 
have only a small impact on persons to whom appellants 
wish to communicate their ideas. And, more importantly, 
two and only two Negroes picketing against what they con­
sider racist policies of a Louisiana school board are ex­
tremely vulnerable to harassment by those antagonistic to 
their goals. The conclusion that the city has no valid pur­
pose for Ordinance No. 11 is further compelled by the fact 
that it was passed in the middle of picketing by the appel­
lants in spite of its being at all times peaceful, orderly, and 
non-obstructive.

In summary then, appellants contend: (1) that it is clear 
that peaceful, non-obstructive picketing such as they have 
at all times conducted is protected by the First and Four­
teenth Amendments; (2) that any restrictions on it can be 
justified only by valid considerations such as keeping side­
walks and streets passable and allowing access to build­
ings; and (3) that an absolute ban on picketing by more 
than two persons regardless of circumstances cannot be 
reasonably related to any valid purposes. Therefore, Ordi­
nance No. 11 of the City of Port Allen violates the First 
and Fourteenth Amendments on its face in that it unduly 
restricts and interferes with rights protected by those 
amendments and hence is overbroad.



11

II.

The Decision in Zwickler v. Koota Requires the Entry 
of a Declaratory Judgment o f  Unconstitutionality of the 
Port Allen Picketing Ordinance.

The apparent basis for the lower court’s decision was 
that, under the rule of Douglas v. City of Jeannette, 319 
U.S. 157 (1943), the court should not intervene in the en­
forcement by the state courts of the Port Allen picketing 
ordinance. Rather, “its validity, and the question of the 
good or bad faith of its enactors, could be just as well, 
and certainly more properly determined in a State crimi­
nal proceeding than in a proceeding in equity before this 
Court” (R. 51). Appellants contend that this conclusion 
was in error in light of the decisions in Zwickler v. Koota,
------U.S. —— , 19 L.ed.2d 444 (1967), and Dombrowski v.
Pfister, 380 U.S. 479 (1965).

In Zwickler, which is identical in all significant respects 
to the present case, the plaintiff sought in federal court 
declaratory and injunctive relief, challenging the validity 
under the federal Constitution of a New York statute mak­
ing it illegal to pass out anonymous handbills containing 
a statement about any political candidate. The three-judge 
district court “ applied the doctrine of abstention and dis­
missed the case, remitting appellant to the New York courts 
to assert his constitutional challenge in defense of any 
criminal prosecution for any future violations of the stat­
ute.” 19 L.ed.2d at 448. The Supreme Court reversed and 
remanded the case to the district court with orders to 
reach and rule upon the issue of the constitutionality of 
the state statute. There were four main grounds for the 
court’s decision, all of which apply and govern here.



12

First, the Court held that McNeese v. Board of Educa­
tion, 373 U.S. 668 (1963), established that the Civil Rights 
Acts of 1871 and 1875, now codified in 42 U.S.C. §1983 and 
28 U.S.C. §1343, gave jurisdiction to the federal courts, in­
dependent of any remedies available in state courts, to en­
force federal constitutional rights. That jurisdiction ex­
tended not only to claims under the equal protection clause 
as in McNeese, but also to claims under the due process 
clause, particularly when they involved First Amendment 
rights. 19 L.ed.2d at 448-50. Just as in ZwicMer, jurisdic­
tion is asserted here under 42 U.S.C. §1983 and 28 U.S.C. 
§1343 and appellants seek in the same way vindication of 
First and Fourteenth Amendment rights by a federal 
forum.

Second, the doctrine of abstention, by which a federal 
court may defer to the state courts when presented with a 
federal claim, is to be applied only in “ special circum­
stances.” 19 L.ed.2d at 450. One of those circumstances 
may be present when a statute or ordinance is challenged 
on the ground it is vague, i.e., its language is imprecise and 
unclear and hence may reach protected activities. It may 
be appropriate for a federal court to require a plaintiff to 
litigate the issue first in state court, since there a narrow­
ing construction may be given the statute that avoids or 
modifies the constitutional question. Ibid.

In Zwichler, on the other hand, the claim was not that 
the statute was vague; rather, its meaning was agreed by 
all to be precise and clear. Plaintiff challenged it on the 
ground that it clearly reached and punished federally pro­
tected activities, i.e., it was overbroad. Thus, since a state 
court could not construe the statute and avoid deciding the 
federal question, there was no reason for the federal court, 
with its primary obligation of deciding such questions, to 
abstain. 19 L.ed.2d at 451-53.



13

The claim of appellants here is identical; the Port Allen 
picketing ordinance violates the First and Fourteenth 
Amendments because under its clear and precise language 
it unduly restricts and impinges upon protected rights. 
No claim is or indeed could be made that the language is 
vague. Indeed, it would be hard to imagine language more 
clear and precise; the ordinance unequivocally prohibits 
more than two pickets anywhere, regardless of place, time, 
or circumstances, without exception. The only issue to be 
decided is whether such a prohibition violates the Consti­
tution, and Zwichler makes it clear that the federal courts 
must decide the issue and that:

. . . escape from that duty is not permissible merely be­
cause state courts also have the solemn responsibility, 
equally with the federal courts, ‘ . . . to guard, enforce, 
and protect every right granted or secured by the Con­
stitution of the United States . . 19 L.ed.2d at 450.

Third, the duty of the federal courts to reach and decide 
constitutional questions is particularly compelling when a 
statute or ordinance is attacked because it violates the 
First Amendment. 19 L.ed.2d at 452. In such a case the 
rule of Dombrowski v. Pfister, 380 TJ.S. 479 (1965) applies, 
for to require a plaintiff, “ to suffer the delay of state court 
proceedings might itself effect the impermissible chilling” 
of the protected right. 19 L.ed.2d at 452. Here, as well, 
plaintiffs demonstrated by their uncontradicted complaint 
and affidavit the chilling effect of the ordinance and the 
arrests and prosecutions under it. They wish to continue 
picketing now; as long as the ordinance is there and as 
long as its unconstitutionality has not been definitively de­
clared, they and others in their class are “unwilling to in­
vite criminal prosecution”  (E. 46; 5-6).



14

Finally, the Supreme Court held in Zwichler that Douglas 
v. City of Jeannette, 319 U.S. 157 (1943), relied upon by the 
district court in this case, was inapplicable. In Douglas, 
the plaintiffs asked only for injunctive relief against prose­
cutions under a challenged ordinance. Douglas, said the 
court in Zwichler, held only that there was no showing of 
special circumstances requiring the issuance of an injunc­
tion. This was so because on the same day the Supreme 
Court had held, in Murdoch v. Pennsylvania, 319 U.S. 105 
(1943), that the ordinance challenged in Douglas was un­
constitutional. There was no reason to believe that the 
Pennsylvania courts would not follow that decision, and 
hence it could not be said to he necessary that an injunc­
tion against the prosecutions issue. 19 L.ed.2d at 453-54.

In Zwichler, on the other hand, as in the present case, 
declaratory relief, as well as an injunction, was requested. 
In both cases, plaintiffs seek the effect of Murdoch, that is, 
a determination of the constitutionality of a state statute 
or city ordinance. On the question of the appropriateness 
of declaratory relief, the issue of the necessity and appro­
priateness of injunctive relief posed by Douglas is simply 
irrelevant. 19 L.ed.2d at 454. A federal court has the duty 
to grant the requested declaration (assuming the ordinance 
is unconstitutional), “ irrespective of its conclusion as to 
the propriety of the issuance of the injunction.” Ibid.

This raises the final issue presented by this case, the 
nature of the relief to be granted to the appellants. Zwich­
ler makes it clear that the district court erred in relying on 
Douglas v. City of Jeannette and dismissing the complaint. 
I f the court had clearly expressed no view on the consti­
tutionality of the ordinance, Zwichler indicates that the 
proper disposition of this appeal would he to reverse the 
order of dismissal and to remand for a decision on the 
constitutional question. 19 L.ed.2d at 454.



15

However, although its opinion is ambiguous, the court 
did express the view, unsupported by any discussion, that 
the ordinance is not unconstitutional on its face (R. 51). 
Therefore, it is appropriate for this Court to reach and 
decide the constitutional question. If the court agrees with 
appellants’ contention, set out in Part I, supra, that the 
Port Allen picketing ordinance violates rights under the 
First and Fourteenth Amendments, then the decision below 
should be reversed with directions to enter a declaratory 
judgment declaring the ordinance unconstitutional.

As to the prayer for injunctive relief, appellants suggest 
that this Court follow the approach taken in Zwickler, Ware 
v. Nichols, 266 F. Supp. 564 (N.D. Miss. 1967), and Guyot 
v. Pierce, 372 F.2d 658 (5th Cir. 1967) and defer deciding 
at this time whether an injunction is necessary. See also, 
Baker v. Bindner, 274 F. Supp. 658 (W.I). Ky. 1967). In 
Zwickler, the Supreme Court stated that it would be the 
task of the district court, after a declaratory judgment was 
issued, to decide whether an injunction was necessary or 
appropriate, 19 L.ed2d at 454. At the present time this 
Court can assume, as did the court in Ware, that the city 
and state officials will not act to enforce the ordinance until 
the court’s decision is made final, and when final, that the 
charges against plaintiffs will be dismissed. 266 F. Supp. at 
569. Only if this assumption proves incorrect will the ques­
tion of injunctive relief need to be reached.5

5 This disposition is particularly appropriate here since the Supreme 
Court has now before it a number of the issues involved in issuing an 
injunction against pending criminal prosecutions in Cameron v. Johnson,
262 F. Supp. 873 (S.D. Miss. 1966), prob. juris, noted, ------  U .S .------ ,
19 L.ed.2d 63 (1967). Chief among the questions is whether 28 U.S.C. 
§2283 bars injunctive relief against pending state criminal actions. I f  the 
question of the necessity for injunctive relief were to arise in this ease, 
appellants would contend that §2283 was no bar for the reasons set out 
by Judge Rives in dissent in Cameron (262 F. Supp. at 882-887) and 
Judge Wisdom in his concurrence in Ware (266 F. Supp. at 569-70), viz: 
(1) 42 U.S.C. §1983 is an exception to §2283; (2) §2283 is a codification



16

CONCLUSION

W herefore, for the foregoing reasons, appellants pray 
that the judgment below be reversed with directions to enter 
a declaratory judgment that the Port Allen picketing ordi­
nance is unconstitutional under the First and Fourteenth 
Amendments.

Respectfully submitted,

Jack Greenberg

Charles Stephen R alston

M elvyn Z arr

10 Columbus Circle 
New York, New York 10019

M urphy B ell

971 S. 18th Street 
Baton Rouge, Louisiana

L olis E . E lie

Collins, D ouglas, and E lie 
2211 Dryades Street 
New Orleans, Louisiana 70113

Attorneys for Appellants

of rules of comity and thus does not absolutely prohibit the issuance of 
an injunction where compelling circumstances, the preservation of First 
Amendment freedoms, are present; and (3) whatever the effect of §2283 
with reference to present prosecutions, it can serve as no bar to enjoining 
any arrests or prosecutions initiated after this suit was filed.



17

Certificate of Service

I hereby certify that copies of the Brief of Appellants 
have been served on the attorneys for appellees by mailing 
the same to Hon. Jack P. F. Gremillion, Attorney General, 
State of Louisiana, Hon. Thomas W. McFerrin, Assistant 
Attorney General, and Hon. Kenneth C. DeJean, Assistant 
Attorney General, P.O. Box 44005, Capitol Station, Baton 
Rouge, Louisiana 70304, United States mail, postage pre­
paid.

Done this day of February, 1968.

Attorney for Appellants



MEiLEN PRESS INC. —  N. Y. 219