Kelley v. Page Consolidated Brief

    UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT,

ASA D. KELLEY, JR,, Individually and as 
Mayor of the City of Albany, et al.,

Appellants,
v,

M, S, PAGE et al.,
Appellees,

V No. 20,720,

No, 20,711,

W. G. ANDERSON et al.,
Appellants-Appellees,

v,

THE CITY OF ALBANY, GEORGIA, et al., 
Appellees-Appellants.

(And Reverse Title.)

Appeals from the United States District Court for the 
Middle District of Georgia,

Albany Division,

CONSOLIDATED BRIEF
On Behalf of Asa D. Kelley and 

City of Albany et al.

40 Capitol Square, 
Atlanta, Georgia.

Albany, Georgia, 

Elberton, Georgia.

EUGENE COOK,
Attorney General of Georgia,

H. G, RAWLS,
City Attorney,

H. P. BURT.

E. FREEMAN LEVERETT,
Deputy Assistant Attorney General.

St . Louis L aw  P rinting  Co., I nc., 415 N. Eighth Street. CEntral 1-4477.



INDEX.

Page
Statement of the ease..................................................... 1

The complaints ........................................................ . 4
The evidence .............................................................. 5
Incident of December 12, 1961..................................  6
Incident of December 13, 1961.................................... 7
Incident of December 17, 1961................................ . 7
Incident of July 10, 1962............................................ 8
Incident of July 11, 1962............................................ 9
Incident of July 21, 1962...........................................  9
Incident of July 24, 1962............................................ 10
Other incidents ..........................................................  12
General .............................   13

Specifications of error relied upon...............................  15
Argument .......................................................................  16

1. Jurisdiction ..........................................................  16
2. The court erred in denying an injunction against

the illegal demonstrations ..................................  17
3. An injunction against illegal demonstrations

would violate no First Amendment rights of de­
fendants ................................................................ 27
(a) The parade ordinance ................................... 37
(b) An injunction was properly denied in Civil

Action 731 ..................................................... 41
4. The Court below erred in denying a default 

judgment on the counterclaim in Civil Action
731 ........................................................................  43

Conclusion .....................................................................  44



I I

TABLE OF AUTHORITIES.

Cases.

Anderson et al. v. City of Albany et al., 321 F. 2d 649 
(C. A. 5th 1963) ......................................................1,4,

Bailey v. Patterson, 323 F. 2d 201 (C. A. 5th 1963) .. 
Beal v. Missouri Pac. R. R. Coi-p., 312 U. S. 45, 85 L.

Ed. 577 (1941) ..........................................................
Brewer v. Hoxie School District, 238 F. 2d 91 (C. A. 

8th 1956) .................................................................. 16,

Cantwell v. Connecticut, 310 U. S. 296, 308, 84 L. Ed.
1213 (1940) .................................................................

Chaplinsky v. New Hampshire, 315 U. S. 568, 571,
86 L. Ed. 1031 (1942) .............................................. 29,

Childress v. Cook, 245 F. 2d 798 (C. A. 5th 1957) .. 
City Council of Augusta et al. v. Reynolds, 122 Ga. 754,

50 S. E. 998 (1905).....................................................
City of Miami v. Sutton, 181 F. 2d 644, 648 (C. A.

5th 1950) ...................................................................
Clemmons v. Board of Education of Hillsboro, 228 F.

2d 853 (C. A. 6th 1956) .............................................
Clemmons v. Congress of Racial Equality, 201 F.

Supp. 737 (D. C. La. 1962) ...................................... 23,
Congress of Racial Equality v. Clemmons, 323 F. 2d 54

(C. A. 5th 1963) ........................................................
Congress of Racial Equality v. Douglas, 318 F. 2d 95

(C. A. 5th 1963) ........................................................
Coosaw Mining Co. v. South Carolina, 144 U. S. 550,

36 L. Ed. 537 (1892) ........................... .....................
Cox v. New Hampshire, 312 U. S. 569, 544, 85 L. Ed. 

1049 (1941) ................................................................

Dennis et al. v. United States, 341 U. S. 494, 95 L. Ed. 
1137 (1950) ...............................................................

,41

26

43

23

38

33
16

22

43

26

24

16

35

20

39

34



Douglas v. Jeannette, 319 U. 8. 157, 87 L. Ed. 1324 
(1943) .........................................................................

Edwards v. South Carolina, 372 U. S. 229, 83 S. Ot.
680 (1963) .................................................................

Ellis et al. v. Parks, 212 Ga. 540, 93 S. E. 2d 708 
(1956) .........................................................................

Feiner v. New York, 340 II. S. 315, 95 L. Ed. 295
(1951) .................................................. ..................... 31,

Frohwerk v. United States, 249 U. S. 204, 206, 63 L. 
Ed. 561 (1919) ............................................................

Galfas v. City of Atlanta, 193 F. 2d 931 (C. A. 5th
1952) ..........................................................................

Georgia v. Pennsylvania Railroad, 324 U. S. 439, 451,
'89 L. Ed. 1051 (1945) .............................................

Giboney v. Empire Storage & Ice Company, 336 U. S.
490, 93 L. Ed. 834 (1949) ..........................................

Gilbert v. Minnesota, 254 U. S. 325, 332, 65 L. Ed.
287 (1920) .................................................................

Gitlow v. New York, 268 IT. S. 652, 69 L. Ed. 1138
(1925) .........................................................................

Goldsby v. Harpole, 263 F. 2d 71 (C. A. 5th 1959),
cert. den. 361 U. S. 838 ............................................

Great Lakes Auto Ins. Co. v. Shepherd, 95 F. Supp.
1 (D. C. Ark. 1951) ..................................................

Griffin v. CORE, 221 F. Supp. 889 (I). C. La. 1963). .16,
Hague v. C. I. O., 307 U. S. 496, 83 L. Ed. 1423

(1939) ................................................................... -.16,
Hasbrouek et al. v. Bondurant & McKinnon, 127 Ga.

220, 56 S. E. 241 (1906) .............................................
Hoosier Casualty Co. v. Cox, 102 F. Supp 214 (D. C.

Iowa, 1952) ...............................................................
Hughes v. Superior Court, 339 LT. S. 460, 94 L. Ed. 

985 (1950) ...................................................................
In re Debs, 158 IT. S. 564, 39 L. Ed. 1092 (1895) . . . .

43

32

31

33

27

43

21

30

27

27

25

16
23

38

22

16

31
17



IV

Local Union v. Graham, 345 IT. S. 192, 97 L. Ed. 946
(1953) ..........................................................................

Lovell v. Griffin, 303 IT. S. 444, 82 L. Ed. 949 (1938)..

McCain v. Davis, 217 F. Supp. 661, 666 (D. C. La.
1963) ...........................................................................

Milk Wagon Drivers’ Union v. Meadowmor Dairies,
312 U. S. 287, 85 L. Ed. 836 (1941)..............................

Monroe v. Pape, 365 U. S. 167, 187, 5 L. Ed. 2d 492
(1961) .........................................................................

Moore v. New York Cotton Exchange, 270 U. S. 593,
610, 70 L. Ed. 750 (1926) ..........................................

Morgan v. Sylvester, 125 F. Supp. 380, 389 (D. C. 
N. Y. 1954), aff’d 220 F. 2d 758, cert. den. 350 U. S. 
867 ..............................................................................

Picking v. Pennsylvania Railroad Co., 5 F. R. D. 76
(D. C. Pa. 1946) ........................................................

Poulos v. New Hampshire, 345 U. S. 395, 409, 97 L. 
Ed. 1105 (1953) .......................................................38,

Schaefer v. United States, 251 U. S. 466, 474, 64 L. Ed.
360 (1920) .................................................................

Schenck v. United States, 249 U. S. 73, 63 L. Ed. 470
(1910) ........................................................................

Stefanelli v. Minard, 342 U. S. 117, 96 L. Ed. 138 
(1951) .........................................................................

Times Film Corporation v. Chicago, 365 U. S. 43, 47,
5 L. Ed. 2d 403 (1961) ..............................................

United States ex rel. Milwaukee Publishing Co. v. 
Bureleson, 255 U. S. 407, 414, 65 L. Ed. 704 (1921)

United States v. Elliott, 64 Fed. 27 (1894)................
United States v. U. S. Klans, 194 F. Supp. 897 (D. C.

Ala, 1961) ...................................................................
U. S. ex rel. Seals v. Winian, 304 F. 2d 53 (C. A, 5th 

1962) ..........................................................................

31
38

25

42

24

17

25

25

,40

27

28

43

27

28
21

26

25



V

Virginian Rv. Co. v. System Federation, 300 U. S. 515,
552, 81 L. Ed. 789 (1937) ..........................................  20

Whitney v. California, 274 U. S. 357, 371, 71 L. Ed.
1095 (1927) ................................................................ 28

Statutes.
City Code of Albany:

Chap. 11, § 6................................................................ 35
Chap. 14, § 7 ............................. .......................... . 35
Chap. 24, § 35 ................ ..........................................  34
Chap. 24, § 36 ..................................................... 34

28 U. S. C. A. 1331............   16
28 IT. S. C. A. 1343 .................    16
42 U. S. C. A. 1985 (3) ................................................  16

Rules.
Federal Rules of Civil Procedure:

Rule 12 ....................................................................... 43
Rule 13 .....................................................................16,17
Rule 55 (d) ...............................................................  43

Textbooks.
28 Am. Jur. 695, § 160 .................................................  20
1A Barron & Holtzoff, § 392 ........................................16,17
43 C. J. S. 675, § 125 ...................................................  20
43 C. J. S. 676, § 128 .................................................... 20
2 Cyc. Federal Practice, § 2,440 ..................................... 16
3 Moore’s Federal Practice, §13.15 ................................ 16



UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT.

ASA D, KELLEY, JR., Individually and as 
Mayor of the City of Albany, et al.,

Appellants,
v.

M. S. PAGE et al.,
Appellees,

W. G. ANDERSON et al.,
Appellants-Appellees,

v.

THE CITY OF ALBANY, GEORGIA, et al., 
Appellees-Appellants.

(And Reverse Title.)

No. 20,720.

No. 20,711.

Appeals from the United States District Court for the 
Middle District of Georgia,

Albany Division.

CONSOLIDATED BRIEF
On Behalf of Asa D. Kelley and 

City of Albany et al.

I.

STATEMENT OF THE CASE*

Procedural Aspects.
Civil Action No. 727 as filed in the district court below 

on July 20, 1962, was a complaint brought by the Mayor, 
City Manager and Chief of Police of the City of Albany,

* Since these cases were consolidated on appeal by order of this court 
of October 24, 1963, the record in No. 20,720 will he cited as “R. . . .
and the record in No. 20,711 will be cited as “T.........” The transcript
of evidence, which is already before the court in another case, Anderson 
v. Albany, 321 F. 2d 649, Case No. 20,501, will be cited simply by the 
page number.



- 2

Georgia, against designated individuals and certain so- 
called “ Civil Rights” organizations, seeking temporary 
and permanent injunctive relief, by enjoining defendants 
from “ continuing to sponsor, finance, incite or encourage 
unlawful picketing, parading or marching in the City of 
Albany, from engaging or participating in any unlawful 
congregating or marching in the streets or other public 
ways of the City of Albany, Georgia; or from doing any 
other act designed to provoke breaches of the peace or 
from doing any act in violation of the ordinances and laws 
(referred to in the complaint) . . . ” (R. 10). A tempo­
rary restraining order was issued by the district judge 
on July 20, 1962 (R. 13). On application for a stay pend­
ing appeal, this restraining order was set aside by the 
Chief Judge of this court on July 24, 1962, on the theory 
that the order was tantamount to a preliminary injunction, 
and the court’s belief that the district court was without 
jurisdiction in the premises (R. 20). As a consequence, 
that same night the activities of the defendants precipi­
tated the most massive and riotous demonstration ever 
to be inflicted upon the people of Albany, Georgia, as will 
be more fully hereinafter shown, and pursuant thereto, 
the plaintiffs’ motion for preliminary injunction was 
brought on for hearing before the district judge on July 
30, 1962.

In the meanwhile, substantially the same persons who 
were defendants in the above case (Civil Action No. 727) 
filed two complaints in the same court against the City 
and certain of its officials. Of these two cases, Civil Ac­
tion No. 730 sought relief against alleged racial segrega­
tion in certain municipally-owned and municipally-regu­
lated facilities. The other case, Civil Action No. 731, 
sought injunctive relief against interference with the 
plaintiffs’ alleged rights of peaceful protest, picketing and 
assembly (T. 1).



The defendants in Civil Action No. 727 filed answer 
(R, 26).

The motion for preliminary injunction in the City’s 
case (No. 727) came on for hearing on July 30, 1962, and 
continued through August 8, at which time it was taken 
under advisement, the court also announcing at that time 
that the motions for preliminary injunction in the other 
two cases would he brought on for hearing as soon as 
the court’s schedule would permit (1014A et seq.). The 
defendants in these cases filed defensive pleadings, and in 
No. 731, the city officials filed a cross claim which for 
all practical purposes is identical to their original com­
plaint in Civil Action No. 727 (T. 15).

The motions of the plaintiffs for preliminary injunctions 
in Nos. 730 and 731 came on for hearing in Albany on 
August 30th, at which time an order was taken con­
solidating all three cases—No. 727, the suit by the City of 
Albany—and Nos. 730 and 731, the two suits against the 
city (9B). At the call of these two cases, plaintiffs 
moved to dismiss No. 731, apparently in an effort to have 
defendants’ cross action go with it, but this motion was 
denied (11B). As no answer had been filed by plaintiffs 
to the cross action in No. 731, motion for judgment by 
default was made which was taken under advisement 
(13B). Argument was had at this time on the defendants’ 
motions to dismiss, and on the following day, so much 
thereof as sought to have the City of Albany dismissed 
as a party defendant in No. 730 was sustained (22B), and 
ruling on the other grounds were reserved until after 
hearing (23B).

The hearing on the motions for preliminary injunction 
in Nos. 730 and 731, as well as the motion for preliminary 
injunction by defendants in No. 731 on their cross action 
proceeded through the day of August 31st, when it was 
continued over due to other commitments of the court



(197B). The hearing resumed and was concluded on Sep­
tember 26, 1962 (199B).

The first of the three cases to be decided was No. 730, 
the action seeking desegregation of municipal facilities, 
which was dismissed on February 14, 1963 (324B). On 
appeal to this court, the judgment below was reversed. 
Anderson et al. v. City of Albany et al., 321 F. 2d 649 
(C. A. 5th 1963).

The decision of the court below in the other two cases 
was rendered on June 28, 1963 (R. 35). In this decision, 
the court below denied the prayers of the City of Albany 
in its complaint in No. 727 and in its cross action in No. 
731. The court also denied the prayers of the Negro plain­
tiffs in No. 731.

The reasoning assigned by the court below as support­
ing its decision in both cases, including the cross-claim 
in No. 731, was a finding that tensions had been removed, 
conditions improved, and there was therefore no longer any 
need for injunctive relief in either case (R, 35).

Notice of appeal was filed by the plaintiffs in both cases 
(R. 46; T. 37) and by the defendants in No. 731 on their 
cross claims (T. 40).

The Complaints.

The complaint of the city officials in No. 20,720 (C. A, 
727), as amended, sets forth that the defendants were 
conducting, sponsoring, financing and fomenting mass 
demonstrations and marches, all of which have the effect 
of causing strife, violence, a disruption of orderly proc­
esses, blockage of streets, congestion of traffic, and dep­
rivation of the right of others freely to use the streets, 
public ways and private property; that defendants were 
also violating certain laws of the State of Georgia, as

—  4 —



0 —

well as ordinances of the city governing parades, compli­
ance with lawful orders of the police, and disturbing the 
peace; and that the activities of defendants were of such 
a massive nature as to require all of the city forces to 
control same, thereby preventing the plaintiffs from giv­
ing and securing to other citizens the equal protection of 
the laws (R. 1-10). More specifically the complaint al­
leges:

“ 14.

Petitioners say that the usual and ordinary proc­
esses of law available under criminal prosecutions, 
ordinances and statutes are wholly inadequate to cope 
with the situation at hand in that the mass demon­
strations, the threats and violence herein complained 
of were accentuated, aggravated and increased as the 
result of prior arrests of defendants, their agents and 
those acting in concert therewith for violations of 
the laws hereinafter referred to” (R. 6).

In No. 20,711 (C. A. 731), the complaint alleges that 
plaintiffs have been prevented from conducting peaceful 
demonstrations against state-enforced segregation; that 
several of the plaintiffs were arrested and charged with 
disorderly conduct while peacefully picketing and that 
application for a permit to conduct a peaceful demonstra­
tion was made and denied (T. 1-10).

The Evidence.

In February, 1961, defendants Anderson, Page and Slater 
King presented a request to the Mayor and City Commis­
sion of Albany, requesting action by the City with respect 
to complaints concerning alleged acts of vandalism in the 
Negro community, and requesting appointment of a bi- 
racial committee (775-6A). The City was successful in 
bringing to prosecution those responsible for the acts of



6

vandalism against the Albany State College, but the prose­
cutions were dropped upon request by the college officials 
(917A).

While the record is barren of definite evidence as to 
the negotiations immediately subsequent to the February, 
1961, communication, the “ Albany Movement” was formed 
on November 15, 1961, as an unincorporated association 
composed in part of representatives of various so-called 
“ Civil Rights” organizations, including the Student Non- 
Violent Coordinating Committee (SNCC), the National As­
sociation for the Advancement of Colored People (NA- 
ACP), the Congress of Racial Equality (CORE), and the 
Southern Christian Leadership Conference (SCLC), among 
others (637A). Slater King, vice president of the move­
ment, testified that all members of the Negro community 
are members of the movement (34A), and defendant Ander­
son stated that he estimated that some ten to twelve 
thousand people participated in the activities of the move­
ment (653A).

The gist of the complaint in the City’s suit concerns a 
systematic, continuous course of conduct which began in 
December, 1961, and continued up to the day of the trial. 
However, of this there are certain specific incidents which 
are most significant, and they will now be outlined in 
chronological sequence.

Incident of December 12, 1961.

On this date, approximately 267 Negroes marched into 
downtown Albany, blocking traffic and the sidewalks, and 
walking against traffic light (42A-46A). Upon being 
stopped at the City Hall, they stated that they did not 
have a parade permit, and refused to disperse upon com­
mand by Chief Pritchett (48A). A large group of white 
and Negro persons gathered on opposite sides of Ogle­



/  —

thorpe Street as a result of the march, necessitating that 
the Chief utilize all his personnel, with only one patrol 
car for the entire remainder of the City, whereas normally, 
8 ears and 5 motorcycles would be patrolling (45A). The 
Negro followers gathered around the Trailways Bus Sta­
tion, shouting at the officers in a threatening manner, and 
exclaiming, “ Send Big Red down to us,” referring thereby 
to police officer Wills (52A). When the marchers were 
transferred from the alley outside the jail to inside the 
jail, the police found large numbers of knives where the 
marchers had been standing (58A). A meeting at Mt. 
Zion and Shiloh Churches had preceded the march, at 
which defendants Anderson, Page and Slater King were 
present (42-3A).

Incident of December 13, 1961.
At 6:50 P. M. on this day, between 100 and 200 Negroes 

conducted a march, which attracted approximately 2,000 
onlookers. The marchers had not obtained a permit, and 
refused to disperse upon direction. The situation was very 
tense, requiring the entire police force with the exception 
of one car, which had to patrol the entire remainder of 
the city. The marchers ignored traffic lights, and the 
congestion necessitated blocking-off of the streets, and 
required two to three hours to clear the traffic from the 
area. The Negro crowds hurled insulting remarks at the 
police officers, creating in the words of the Chief, “ A tense 
situation, where disorder could have erupted at any time” 
(53A-63A). The only reason violence did not erupt, in 
the opinion of the Chief, was the fact that his entire force 
was on the scene (194A).

Incident of December 17, 1961.
On December 15th, defendant Martin Luther King, Jr., 

arrived in Albany (959A). Dr. King addressed the masses



at Shiloh Baptist Church during this first visit, as he did 
on many other occasions, where he encouraged those in 
the audience to march and protest (968A).

On December 17, 1961, at 6:00 o’clock P. M., 266 persons, 
led by Dr. King, Rev. Abernathy and Dr. Anderson, con­
ducted a march into the downtown area, singing and 
hollering, requiring that the street be blocked off, and 
generating a riotous crowd. The group had no parade 
permit. Prior to the parade, the Albany movement had 
announced to their members to “ Wear your walking 
shoes” . The police were compelled to close businesses in 
the area, and three to four hours were required to clear 
the traffic. At this time, the Chief had obtained additional 
help to assist in handling the situation, 150 officers being 
under his command, but even then, all of his available 
forces were required, leaving only one car to patrol the 
entire city. All servicemen had been restricted to base 
because of the disturbance (63A.-71A). As the marchers 
progressed down the street, defendants King and Anderson, 
without provocation, stated to white passers-by “ Hit me 
first” (531A; 555A; 583A). The marchers ignored the 
traffic lights, and blocked a IT. 8. mail truck (525A). 
Persons along the way were invited to join (554A).

Incident of July 10, 1962.

Following his trial in recorder’s court in February, 
defendant Martin Luther King, Jr., returned to Albany 
on July 10, 1962, for sentencing (962A). That night, some 
2000 to 2500 persons gathered at the churches (124A), 
and during the services, police cars and a vehicle occupied 
by agents of the F. B. I., were rocked, and dome light 
on one vehicle broken (125A; 602A; 690A).

—  8 —



Incident of July 11, 1962.

On this occasion, the Albany Movement conducted a 
mass meeting at Shiloh Church. The church was full, 
and a big crowd was on the outside, milling about and 
directing insults and threats at police officers stationed 
in the area. As the officers walked across the street, they 
heard someone exclaim, “ You mother-fucking son-of-a- 
bitches, don’t you come back to this side of the street” , 
and “ Come on over, come on over"—“ Let’s get Big Red,” 
and “ Let’s fight” (406A, 422A), and “ There goes that 
white trashy mother-fucking detective” (415A). The situ­
ation became so tense that Chief Pritchett felt constrained 
to go into the church and plead for calmness and order 
(93A; 418A).

—  9 —

Incident of July 21, 1962.

On the evening of the 20th, the district court had issued 
a restraining order against the defendants. On Saturday, 
the 21st, Slater King and Charles Jones appeared at a 
meeting at the church. Charles Jones told the crowd 
that he couldn’t participate “ actively” in the marches, 
but that, would not prevent the others from going (461A). 
He advised those present that a march was being formed, 
and suggested that those present join (396A). Defendant 
Martin Luther King then arrived at the church and en­
tered a back room. A few minutes later, an unidentified 
person emerged from that room, approached the rostrum 
and whispered something to the speaker. A march then 
followed (464A), led by Reverend Samuel Wells (131A), 
While defendants Jones and Slater King did not partici­
pate in the march, in the words of one impartial witness, 
“ They sure fired them up for i t ” (475A).

Approximately 161 people actually participated in the 
march, but they were accompanied by great numbers of



10

other Negro persons, hollering insults, acting boisterously, 
and running all over the street (127A-137A). One group 
of Negroes ran through the bus station, hollering, “ Just 
shit on the floor and piss all over the place” (425A). One 
citizen accompanied by his wife and family, were trapped 
in the middle of a large number of surging Negroes, who 
jeered him and struck his car (507A). Just prior to the 
march, there was little traffic in the Harlem area (557A), 
but as soon as the march began, the area immediately 
embraced a large number of people (559A). When the 
officers attempted to disperse the crowd, some of the 
Negro participants shouted to the police, “ Kiss my ass,” 
“ Go to Hell,” “ You white son-of-a-biteh.” “ Pale face 
mother-fuckers,” and “ Pale face son-of-a-biteh” (560A). 
Officer Johnson was backed up against a wall by four 
to five hundred Negroes, who cursed and threatened to 
cut him (597A). Two men were arrested for carrying 
pistols (704A).

Incident of July 24, 1982,

On the morning of July 24, 1962, Chief Judge Tuttle 
of this Court set aside the temporary restraining order 
previously issued by the district court (R. 20). There 
ensued that night the most massive, violent and critical 
riot ever to emerge from the Albany Movement’s activities 
(141 A).

At approximately 9:10 P. M. that night, defendant 
Martin Luther King entered the Mt. Zion Church (541A), 
one of the two churches where the marches always began. 
Speeches were made by Drs. King and Abernathy, who 
then left and went across the street to the Shiloh Church, 
Defendant Jones then addressed the congregation, relating 
the experiences in federal court that day, and, as stated 
by Witness Morris,



‘ ‘ . . . and he said that some of the Negroes had 
gotten a little anxious and some of them who were 
planning on demonstrating were planning on going 
ahead, and that Dr. King and Dr. Abernathy were 
over in the other church trying to talk to them, and 
they would later be led through, so that they might 
gain in number . . . and he went on to say some­
thing about he didn’t want to disappoint the local 
law enforcement authorities or something of that 
nature” (396A).

Around 10:00 o’clock that same night, a group of 40 
marchers, followed by a howling, surging mob of from 
three to four thousand Negroes marched through the Har­
lem area up Jackson Street to the intersection of Ogle­
thorpe (137A). The situation became so critical in the 
Harlem area, that the Chief felt it necessary to march 
all available forces down into the area in a column, with 
explicit instructions not to break ranks under any cir­
cumstances (337A, 450A, 320A, 360A). As the officers 
entered the area, rocks and bottles began to fly like mortar 
shells (137A, 326A, 330A). One officer was hit by a 
bottle (449A) and a state patrolman was hit in the face 
with a rock, breaking two teeth (510A-524); a news re­
porter was hit (472A); another officer had a bottle splatter 
over his feet (618A); another had to duck to avoid being 
hit (545A); and another was hit on the leg (536A). One 
of the motorcycles was hit with a rock (691A). Between 
10:28 and 12:11, during the riot, eight false fire alarms 
were turned in from the Harlem area, the largest number 
ever reported (587A-595A). The crowds blocked traffic 
(R. 548, 710). One witness, experienced in evaluating 
crowds, testified that in his opinion, the only thing which 
prevented bloodshed was the act of Chief Pritchett in 
marching into the area (470A). The Negro spectators 
hurled filthy and obscene epithets at the officers (140A),

—  11 —



12

such as “ you pale-faced son-of-a-bitches ” (449A); “ You 
god-damn cock-sucking police;” “ You white faced mother 
fuckers,” “ eat shit you bastards” (466A); “ Here comes 
Pritchett’s army, the white mother fuckers think they’re 
as good as we are” (512A, 569A); “ Here comes the pale- 
faced sons of bitches now” (599A); and “ There’s that 
God damn mother-fucking detective” (606A). One wit­
ness estimated that in excess of 75 bottles were thrown, 
and declared that “ It sounded like the 4th. of July” 
(472A).

As the police marched down into the Harlem area to 
restore peace the Negro spectators, lining both sides of 
the street, would run out in the street and spit at the offi­
cers (91A; 472-3A; 513-515A; 599A; 607A). Defendants 
King and Anderson were in the crowd during the disturb­
ance (326A).

Defendants Martin Luther King and Anderson stated 
later that they would have to assume part responsibility 
for the violence of the 24th (143-4A).

Other Incidents.

Defendants sponsored sit-ins, which sometimes required 
that the stores be closed (107A). On another occasion a 
patrol car petroling near the Kiokee Baptist Church was 
greeted by Negroes with the statement: “ There goes that 
white, trashy, mother-fucking detective,” and “ If you 
stop here long enough I ’ve got something in my pocket for 
you” (415A). Another group threatened to turn a police 
car over (417A).

In May, 1962, the mirror on the police paddy wagon was 
shot off while Officer Wills was proceeding on a call (612A), 
On another occasion near the colored Teen Center, a cement 
rock was thrown under the paddy wagon, breaking the oil



13 —

pan, and gas soaked rags were placed under the dash and 
ignited (623A-624A). The Albany Movement also con­
ducted a boycott of local merchants and the bus company, 
forcing the latter out of business in an effort to use it as 
a “ pry” against the city (442A).

General.

Defendants always notified the news media in advance 
of all demonstrations and the police could always tell when 
a demonstration was to be held by the presence of re­
porters and cameramen (100A).

During the activities of the Albany Movement the city 
made 1,1.00 cases (109A), involving about 450 people 
(147A).

During the weeks of the crisis the city was on the brink 
of an explosion, and although Chief Pritchett pleaded with 
the defendants, they stated that they would not call off the 
demonstrations because of “ spontaneous conduct of the 
Negro people” (82A). The action of the Albany Move­
ment in conducting mass meetings at which emotionally 
charged speeches were made, followed by marches, encour­
aged the Negroes to violate the law (95A). The defendants 
stated that they would not obey the city ordinances relat­
ing to parade permits, blocking the streets and refusing to 
move (98A). On one occasion defendant Anderson threat­
ened to bring in 1,000 marchers to the City Hall if the 
City didn’t release its prisoners (100A).

Chief Pritchett advised Reverend King and the other 
defendants of the effect which the speeches of the latter 
had upon the Negro community, but defendants stated they 
would just have to assume responsibility for some of the 
results, as they intended demonstrating regardless (116A). 
The Chief testified that his men were placed under a



—  14

strain (360A); that the activities of defendants cost the 
City an additional $36,000 (146A). At no time did defend­
ants ever apply for parade permits (355A; 868A). Some 
members of the police department were required to work 
20 hours at a time, and the City had to house many in the 
hotels to be on immediate call (109A). The City had to 
rent jail space from adjoining communities (110A).

During the months of December, 1961, and July, 1962, 
when the situation was the most tense, five and six times 
the normal number pistol licenses were issued (368A).

The defendants admitted that they anticipated that their 
activities would result in violence, as they conducted 
clinics at which instruction was given on such matters 
{15A; 905A; 976A; 650A). Defendant Anderson stated on 
nationwide television that he expected a “ Little Rock” to 
develop in Albany (651A).

Defendants King and Anderson both stated that they 
did not feel bound to obey unjust laws (650A; 98A; 642A; 
118A; 971 A), or restraining orders (650A; 149A), or Su­
preme Court decisions (973A). Each individual, according 
to defendants, must determine for himself whether he will 
violate the law (975A; 654A). Defendant Anderson ad­
mitted that the Albany Movement conducted “ mass dem­
onstrations” (650A). Defendant Abernathy also believes 
that people should not obey unjust laws (999A).

The extent of control exercised by defendants is illus­
trated by the fact that when defendants King and Ander­
son requested their followers for a day of penance, no in­
cidents were reported (145A). Even after the July 24th 
riot, defendants stated that they would continue demon­
strating in small groups (146A).



— 15 —

I I .

SPECIFICATION OF ERRORS RELIED UPON.

I. The District Court Erred in Denying a Preliminary 
injunction to plaintiffs in Case No. 727.

II. The District Court Erred in Denying a Preliminary 
injunction to defendants (cross plaintiffs) in their counter­
claim in Case No. 731.

III. The District Court Erred in Denying defendants a 
judgment by default in their counterclaim in Case No. 731.



—  16 —

III.

ARGUMENT.
1. Jurisdiction.

Civil Action 727, as previously stated, was the first of 
the three actions filed below, and is the action brought by 
the three city officials of Albany to enjoin the illegal 
demonstrations.

As amended, the complaint alleged jurisdiction under 
42 U. 8. C. A. 1985 (3), 28 U. S. C. A. 1343 and 28 U, 8. C. A. 
1331 (R, 2). The complaint alleged that the amount in 
controversy exceeded $10,000, exclusive of costs and in­
terest (R. 25), and the evidence amply supported this 
allegation (146A). Therefore, jurisdiction was clearly 
shown in Civil Action 727. Brewer v. Hoxie School Dis­
trict, 238 F. 2d 91 (C. A. 8th 1956); Congress of Racial 
Equality v. Clemmons, 323 F. 2d 54 (C. A. 5th 1963): 
Griffin v. CORE, 221 F. Supp. 899 (D. C. La. 1963). More­
over, aside from this, when substantially the same parties 
who were defendants in No. 727 filed Civil Action 731 
seeking an injunction against interference with their dem­
onstrations and picketing, the city officials filed a counter­
claim (referred to as a cross claim) which was substan­
tially identical to the complaint in Civil Action 727. 
Clearly, the Court had jurisdiction of Civil Action 731. 
See, Hague v. C. I. 0., 307 IT. S. 496, 83 L. Ed. 1423 (1939). 
Therefore, the counterclaim in C. A. 731 requires no sepa­
rate jurisdictional grounds, and is sustainable by virtue of 
the court’s jurisdiction to consider the original complaint. 
Rule 13, Fed. Rules Civil Procedure; Great Lakes Auto 
Ins. Co. v. Shepherd, 95 F. Supp. 1 (D. C. Ark. 1951); 
Hoosier Casualty Co. v. Cox, 102 F. Supp. 214 (D. C. Iowa, 
1952); Childress v. Cook, 245 F. 2d 798 (C. A. 5th 1957); 
3 Moore’s Fed. Prac., § 13.15; 2 Cyc. Fed. Prac., § 2.440. 
As stated in 1A Barron & Holtzoff, § 392, at p. 547:



— 17
“ A. counterclaim or cross-claim arising out of the 

transaction or occurrence that is the subject matter of 
the original action or counterclaim therein, or relating 
to property that is the subject matter of the original 
action, may be adjudicated even though independent 
grounds of federal jurisdiction do not exist.”

Moreover, this being a compulsory counterclaim in that 
it involves matters arising out of the “ transaction or oc­
currence that is the subject matter of the opposing party’s 
claim,” Rule 13 (a), the failure of the plaintiff in the 
main action to prevail does not defeat jurisdiction as to 
the counterclaim. Moore v. New York Cotton Exchange, 
270 U. S. 593, 610, 70 L. Ed. 750 (1926); Barron & Holtzoff, 
Id., p. 551.

2. The Court Erred in Denying an Injunction Against the 
Illegal Demonstrations.

That the complaint in Civil Action 727 and the counter­
claim No. 721 state a cause of action is beyond dispute, 
every conceivable question which might be raised in con­
nection therewith having been favorably decided in the 
famous case of In re Debs, 158 IT. S. 564, 39 L. Ed. 1092 
(1895). In the Debs case, the United States brought suit 
for injunction against Eugene Debs and other union offi­
cials to enjoin them from obstructing interstate commerce 
and the mails by calling strikes and conducting boycotts 
against the Pullman Company, as well as against railroads 
doing business with Pullman. An injunction issued, Debs 
violated it, was adjudged in contempt and imprisoned, and 
the instant case arose when he brought habeas corpus, at­
tacking the power of the Court to have issued the injunc­
tion in the first instance.

At the outset, the Supreme Court recognized that the 
Constitution expressly delegated powers to the federal



government, thereby giving it a legally-protectible in­
terest at stake in the dispute.

Disposing of the argument that equity acts only to pro­
tect a property or pecuniary interest, the Court referred 
to the Government’s interest in the mails, and then added: 

“ We do not care to place our decision upon this 
ground alone. Every government entrusted by the 
very terms of its being with powers and duties to be 
exercised and discharged for the general welfare, has 
a right to apply to its own courts for any proper as­
sistance in the exercise of the one and the discharge 
of the other, and it is no sufficient answer to its appeal 
to one of those courts that it has no pecuniary interest 
in the matter. The obligations which it is under to 
promote the interest of all and to prevent the wrong­
doing of one resulting in injury to the general welfare 
is often of itself sufficient to give it a standing in 
court” (p. 584).

It was also remarked that “ the obstruction of a high­
way is a public nuisance, and a public nuisance has always 
been held subject to abatement at the instance of the gov­
ernment” (p. 587).

With respect to the government’s right to resort to the 
courts rather than quelling the violence by force, it 
was said:

“ So, in the case before us, the right to use force 
does not exclude the right of appeal to the courts for 
a judicial determination and for the exercise of all 
their powers of prevention. Indeed, it is more to the 
praise than to the blame of the government, that, in­
stead of determining for itself questions of right and 
wrong on the part of these petitioners and their asso­
ciates and enforcing that determination by the club 
of the policeman and the bayonet of the soldier, it sub­

— 18 —



19

milled all those questions to the peaceful determina­
tion of judicial tribunals, and invoked their considera­
tion and judgment as to the measure of its rights and 
powers and the correlative obligations of those against 
whom it made complaint” (p. 583).

As regards the contention of Debs that equity would 
not enforce the criminal law, the court declared:

“ Again, it is objected that it is outside of the juris­
diction of a court of equity to enjoin the commission 
of crimes. This, as a general proposition, is unques­
tioned. A. chancellor has no criminal jurisdiction. 
Something more than the threatened commission of an 
offense against the laws of the land is necessary to 
call into exercise the injunctive powers of the court. 
There must be some interferences, actual or threat­
ened, with property or rights of a pecuniary nature, 
but when such interferences appear the jurisdiction 
of a court of equity arises, and is not destroyed by 
the fact that they are accompanied by t or are them­
selves violations of the criminal law. Thus, in Cram 
ford v. Tyrrell, 128 N. Y. 341, an injunction to restrain 
the defendant from keeping a house of ill-fame was 
sustained, the court saying, on page 344: ‘That the 
perpetrator of the nuisance is amenable to the pro­
visions and penalties of the criminal law is not an 
answer to an action against him by a private person 
to recover for injury sustained, and for an injunc­
tion against the continued use of his premises in such 
a manner.’ And in Mobile v. Louisville &  N. R. Co., 
84 Ala. 115, 126, is a similar declaration in these 
words, ‘The mere fact that an act is criminal does not 
divest the jurisdiction of equity to prevent it by in­
junction, if it be also a violation of property rights, 
and the party aggrieved has no other adequate remedy 
for the prevention of the irreparable injury which will



—  20

result from the failure or inability of a court of law 
to redress such rights” (p. 593).

Lastly, the Court rejected the contention that the Gov­
ernment could not sue to enjoin mob violence on the public 
highways (pp. 596-599).

In 28 Am. Jur. 695, § 160, it is said:
“ The state is intrusted with the duty of protecting 

the public against criminal acts injurious to the civil 
or property rights or privileges of the public or the 
public health. Ordinarily recourse is had to its crim­
inal courts for such purpose. Yet there may be cases 
where the remedy at law by criminal prosecution and 
punishment would not be adequate under the circum­
stances, and where the remedy in equity by injunction 
would furnish more effectual and complete relief. In 
such cases, according to the weight of authority, when 
the interests of the state or other political division or 
the interests of those entitled to its protection are thus 
affected by criminal acts or practices, the state, acting 
through its governmental agencies, may invoke the 
jurisdiction of equity to have them restrained. And, 
while there are considerable differences of opinion, 
and variations in the statement of rules, as to when 
the state or a governmental agency may thus invoke 
the jurisdiction of equity to restrain acts which 
amount to crimes, for the most part present-day cases 
reflect a very liberal attitude on the part of the courts 
in entertaining jurisdiction at the instance of the 
state, to enjoin such acts.”

An injunction lies on behalf of the state to protect pub­
lic property, Coosaw Mining Go. v. South Carolina, 144 
IT. S. 550, 36 L. Ed. 537 (1892); 43 0. J. S. 675, §125, in­
cluding public streets and places; 43 0. J. S. 676, §128, 
and as held in Virginian By. Co. v. System Federation, 300 
IT. S. 515, 552, 81 L. Ed. 789 (1937):



“ Courts of equity may, and frequently do, go much 
farther both to give and withhold relief in further­
ance of the public interest than they are accustomed 
to go when only private interests are involved.”

Moreover, the state may sue as parens patriae, to pro­
tect the interests of its citizens, Georgia v. Pennsylvania 
Railroad, 324 IT. S. 439, 451, 89 L. Ed. 1051 (1945), and 
by analogy it follows that the same principle applies to 
a municipality. As stated in the above case:

“ Georgia as a representative of the public is com­
plaining of a wrong, which if proven, limits the 
opportunities of her people, shackles her industries, 
retards her development, and relegates her to an 
inferior economic position among her sister States. 
These are matters of grave public concern in wdiich 
Georgia has an interest apart from that of particular 
individuals who may be affected. Georgia’s interest 
is not remote; it is immediate. If we denied Georgia 
as parens patriae the right to invoke the original 
jurisdiction of the Court in a matter of that gravity, 
we would whittle the concept of justiciability down 
to the stature of minor or conventional controversies. 
There is no warrant for such a restriction.”

In United States v. Elliott, 64 Fed. 27 (1894), language 
appears which is very appropriate here, viz.:

“ It is a general rule of equity jurisprudence that 
courts of chancery will not . . . ordinarily interpose 
to prevent the commission of a crime. A well and 
long established exception to this rule is that, where 
parties threaten to commit a criminal offense which, 
if executed against private property, would destroy 
it and occasion irreparable injury to the owner, and 
especially where such destruction would occasion a 
multiplicity of suits to redress the wrong, if com­



mitted, courts of equity may interpose by injunction 
to restrain the threatened injury. The law, it does 
seem to me, would be very imperfect, and indeed 
impotent, if a number of irresponsible men could 
conspire and confederate together to destroy my 
property, to demolish or burn down my house, that 
I should be remitted alone to the criminal statutes 
for their prosecution after my property was destroyed. 
Most generally, such law-breakers who engage in 
such conspiracies are a lot of professional agitators. 
They have no property to respond in damage. Their 
tongues are their principal stock in trade; and inas­
much, as imprisonment for debt is abolished, and 
cruel and unusual punishments are prohibited, an 
execution would be quite unavailing. It certainly 
presents a case that most strongly appeals to the 
strong arm of a court of equity to reach forth to 
prevent great injury and loss, as the only means of 
conserving the rights of private property. It is now 
a well-recognized office of a court of equity to con­
serve and preserve the rights of private property 
in advance of its molestation and appropriation, 
where from the peculiar circumstances, the remedy 
at law might be of doubtful restitution.”

In City Council of Augusta et al. v. Reynolds, 122 Ga.
754, 50 S. E. 998 (1905), it was held that a city may enjoin 
obstruction of a street constituting a nuisance, although 
the acts enjoined also constituted a crime, and see, Has- 
brouck et al. v. Bondurant & McKinnon, 127 Ga. 220, 56 
S. E. 241 (1906).

The foregoing principles sustain the city’s case under 
the counterclaim in Civil Action 731, and are also applicable 
in part to Civil Action 727. It is further submitted that a 
cause of action is stated under the complaint in Civil 
Action 731.



In the case of Brewer v. Hoxie School District, 238 F. 2d
91 (C. A. 8th 1956), after disposing of the jurisdictional 
questions, the court turned to the question of whether the 
complaint by the school board to enjoin interference with 
their voluntary desegregation plan stated a claim upon 
which relief could be granted. It was said:

“ The plaintiffs being bound by constitutionally im­
posed duty and their oaths of office to support the 
Fourteenth Amendment and to accord equal protec­
tion of the laws to all persons in their operation of the 
Hoxie Schools must be deemed to have a right, which 
is a federal right, to be free from direct interference in 
the performance of that duty.”

*  ^  #  #  *  *  *

“ Plaintiffs are under a duty to obey the Constitution. 
Const., Art. VI, cl. 2. They are bound by oath or 
affirmation to support it and are mindful of their obli­
gation. It follows as a necessary eorollary that they 
have a federal right to be free from direct and de­
liberate interference with the performance of the con­
stitutionally imposed duty. The right arises by neces­
sary implication from the imposition of the duty as 
clearly as though it had been specifically stated in the 
Constitution.”

The rationale of the above case was one suggested by 
the Department of Justice in an amicus curiae brief, and it 
has been expressly extended to situations substantially 
similar to the one involved here. Clemmons v. Congress of 
Racial Equality, 201 F. Supp. 737 (D. C. La. 1962); Grif­
fin v. Congress of Racial Equality, 221 F. Supp. 899 (D. C. 
La. 1963).

The reversal by this Court of the district court’s deci­
sion in the Clemmons case, 323 F. 2d 54 (C. A. 5th 1963), 
for failure to show a cause of action, can not affect the

—  23 —



complaint here. To begin with, insofar as this Court held 
that the plaintiffs in the Clemmons case could not prevail 
because of their failure to allege and prove that the de­
fendants “ purposefully deprived others of their right to 
equal protection of the laws” (p. 61), it seems contrary to 
the decision of the Supreme Court in Monroe v. Pape, 365 
IT. S. 167, 187, 5 L. Ed. 2d 492 (1961), where it was said:

“ In the Screws case we dealt with a statute that 
imposed criminal penalties for acts ‘wilfully’ done. 
We construed that word in its setting to mean the 
doing of an act with ‘a specific intent to deprive a 
person of a federal right.’ 325 IT. S. 103, 65 S. Ct. 
1036. We do not think that gloss should be placed on 
§1979 which we have here. The word ‘willfully’ does 
not appear in § 1979. Moreover, § 1979 provides a 
civil remedy, while in the Screws case we dealt with a 
criminal law challenged on the ground of vagueness. 
Section 1979 should be read against the background of 
tort liability that makes a man responsible for the 
natural consequences of his actions.”

Aside from this, however, the facts shown by the com­
plaint here are of an entirely different character than those 
involved in the Clemmons case. In the latter, there was 
but one single, isolated incident, which occurred on No­
vember 15, 1961. In the present case, there is a long 
period of incidents beginning on or about December 12, 
1961, and extending through July, 1962—incidents which 
are enmeshed in an entirely different context. Here the 
defendants commenced negotiations with the City in Feb­
ruary, 1961 (775A). During this time, they also were con­
ducting negotiations with the bus company (435A), as 
well as various businesses in the City, seeking an adjust­
ment of alleged grievances (705A; 720A). Pressures were 
being exerted against other businesses by picketing, boy­
cotts,- and “ sit-ins” (6A ; 105-108A; 645A; 624A; 26B;



74-75B; 139B). In view of this Court’s ready willingness 
to take judicial notice of racial matters, Goldsby v, Har- 
pole, 263 F. 2d 71 (C. A. 5th 1959), cert. den. 361 U. S. 
838; U. S. ex rel. Seals v. Winian, 304 F. 2d 53 (G. A. 5th 
1962), and paraphrasing Judge Wisdom in McCain v. 
Davis, 217 F. Supp. 661, 666 (D. C. La. 1963) to the effect 
that “ What all Georgians know, this Court knows,” it is 
clear beyond question that the conscious and deliberate 
purpose of what the defendants were here doing was to 
create such an atmosphere of unrest, chaos and confusion, 
to disrupt both vehicular and pedestrian traffic by taking 
over the sidewalks and streets, to paralyze city operations 
by tying up all available city forces, and in general to so 
far hamper the ordinary processes of business, commercial 
and everyday intercourse as to compel subservenience by 
the city officials at the hands of a horrified and intimi­
dated community. That such is the ease is the inexorable 
conclusion which emerges from the 6 volumes of testi­
mony. It is hardly to be expected that defendants will 
readily admit the thrust of their design, for conspiracies 
are rarely proved by direct evidence, and it is only neces­
sary to present evidence of a fact from which a reason­
able fair-minded person can draw an inference of the al­
leged conspiracy. Morgan v. Sylvester, 125 F. Supp. 380, 
389 (D. C. N. Y. 1954), aff’d 220 F. 2d 758, cert. den. 350 
IT. S. 867, nor is it necessary that each conspirator com­
mit an overt act, or that each conspirator have knowledge 
of the details of the conspiracy, or of the exact part to be 
performed by the other conspirators. Picking v. Pennsyl­
vania Railroad Co., 5 F. R. D. 76 (D. C. Pa. 1946).

“ Massive resistance” has given way to the “ massive 
demonstration” on the other side, and the pattern of the 
latter should by now be well-known to everyone. As one 
example, witness Sweeting, an official of the municipal bus 
company forced out of business by the defendants’ boy­



cott, testified, in response to a question inquiring as to 
the cause of the boycott:

“ Q. I  said, was there any reason given by the per­
sons with whom you talked, at this meeting as to the 
reason for the so-called boycott? A. Yes, there was a 
reason given.

Q. What was that reason? A. Well, when it finally 
came down, they were using us as a pry against the 
City. They actually had no complaints against us at 
all.

Q. They had no complaint against you at all? A. 
No” (442A).

The evidence here fully sustains the complaint, and 
compels the conclusion that an injunction should have 
been granted. On many occasions, the Chief of Police was 
required to use all of his forces, leaving the remainder 
of the City unprotected (54A; 58A; 68A). There is a 
federal duty on state officials to afford all citizens equal 
protection against acts of violence by other citizens. 
United States v. U, S. Klans, 194 F. Supp. 897 (D. C. Ala. 
1961). Streets were required to be blocked off (56A; 65A). 
The police felt compelled to close private businesses on 
several occasions (64-69A). City vehicles were rocked, 
shot with bullets, and set on fire (125A; 602A; 621A; 623- 
4A; 690-691A). The City incurred $36,000 additional 
police expense (146A). False fire alarms were turned in, 
thereby incurring expense (587A). In the opinion of the 
Chief, an injunction was needed at the time of the trial 
(149A). The denial of an injunction here was an abuse of 
discretion. Clemmons v. Board of Education of Hillsboro, 
228 F. 2d 853 (0. A. 6th 1956); Bailey v. Patterson, 323 
F. 2d 201 (C. A. 5th 1963). This is particularly true here, 
since the trial judge found that the facts prior to trial 
were such as to sustain the allegations of the complaint,

—  26 —

viz.:



—  27

“ The evidence demonstrated that the issuance of 
this Court’s temporary restraining order in Civil 
Action No. 727 on July 20, 1962, was amply justified 
by the then existing circumstances” (R. 42).

3. An Injunction Against Illegal Demonstrations Would 
Violate No First Amendment Rights of Defendants.

The establishment of this proposition also carries with 
it as a necessary corollary that the denial of an injunction 
in Civil Action 731 (No. 20,711), to enjoin interference with 
the demonstrations, was not error.

“ Free speech (as well as other First Amendment free­
doms) is not an absolute right” Schaefer v. United States, 
251 U. 8. 466, 474, 64 L. Ed. 360 (1920); Times Film Cor­
poration v. Chicago, 365 U. S. 43, 47, 5 L. Ed. 2d 403 
(1961). “ It is subject to restriction and limitation.” 
Gilbert v. Minnesota, 254 U. 8. 325, 332, 65 L. Ed. 287 
(1920). The First Amendment was “ not intended to give 
immunity for every possible use of language.” Frohwerk 
v. United States, 249 U. S. 204, 206, 63 L. Ed. 561 (1919).

In Gitlow v. New York, 268 U. S. 652, 69 L. Ed. 1138 
(1925), attack was made on the New York criminal an­
archy statute. In holding the statute valid as against an 
attack under the First Amendment guaranties (which for 
the first time were held also to be embraced within due 
process under the Fourteenth), it was said:

“ It is a fundamental principle, long established, 
that the freedom of speech and of the press which is 
secured by the Constitution does not confer an abso­
lute right to speak or publish, without responsibility, 
whatever one may choose, or an unrestricted and un­
bridled license that gives immunity for every possible 
use of language, and prevents the punishment of 
those who abuse this freedom” (p. 666).



28

“ That a state, in the exercise of its police power, 
may punish those who abuse this freedom by utter­
ances inimical to the public welfare, tending to corrupt 
public morals, incite to crime, or disturb the public 
peace, is not open to question” (p. 667).

“ Freedom of speech and press, said Story, supra, 
does not protect disturbances of the public peace or the 
attempt to subvert the government” (p. 667).

The case was later followed in Whitney v. California, 
274 U. S. 357, 371, 71 L. Ed. 1095 (1927).

In United States ex rel. Milwaukee Publishing Co. v. 
Bureleson, 255 IT. S. 407, 414, 65 L. Ed. 704 (1921), the post­
master had revoked a newspaper’s first class mailing- 
privilege because of articles deemed violative of the Es­
pionage Act. In rejecting a constitutional attack, the Su­
preme Court declared:

“ Freedom of the press may protect criticism and 
agitation for modification or repeal of laws, but it does 
not extend to the protection of him who counsels and 
encourages the violation of law as it exists.”

In Justice Holmes’ famous “ clear and present danger” 
opinion, announced in Schenck v. United States, 249 U. S. 
73, 63 L. Ed. 470 (1910), involving a prosecution under 
the Espionage Act against one accused of urging persons 
not to enlist or submit to recruitment in the armed services 
during World War I, it was said:

. . We admit that in many places and in ordi­
nary times the defendants, in saying all that was said 
in the circular, would have been within their constitu­
tional rights. But the character of every act depends 
upon the circumstances in which it is done. . . . The 
most stringent protection of free speech would not 
protect a man in falsely shouting fire in a theater, and 
causing a panic. It does not even protect a man from



an injunction against uttering words that may have 
all the effect of force. Gompers v. Buck’s Stove & 
Range Co., 221 U. 8. 418, 439, 55 L. Ed. 797, 805, 34 
L. R. C. (N. S.) 874, 31 Sup. Ct, Rep. 492. The ques­
tion in every case is whether the words used are used 
in such circumstances and are of such a nature as to 
create a clear and present danger that they will bring 
about the substantive evils that Congress has a right 
to prevent. It is a question of proximity and degree.” 
(Emphasis supplied.)

In Chaplinsky v. New Hampshire, 315 U. S. 568, 571, 
86 L. Ed. 1031 (1942), a Jehovah’s witness was convicted 
under a municipal ordinance prohibiting the addressing 
of any “ offensive, derisive or annoying word to any other 
person who is lawfully in any street . . .” , or calling him 
by “ any offensive or derisive name,” it being alleged that 
the accused addressed these remarks to complainant near 
the City Hall: “ You are a God damned racketeer, and 
a damned Fascist.” In upholding the conviction against 
Constitutional attack, the Supreme Court declared:

“ Allowing the broadest scope to the language and 
purpose of the Fourteenth Amendment, it is well un­
derstood that the right of free speech is not absolute 
at all times and under all circumstances. There are 
certain well-defined and narrowly limited classes of 
speech, the prevention and punishment of which have 
never been thought to raise any Constitutional prob­
lem. These include the lewd and obscene, the profane, 
the libelous, and the insulting or ‘fighting’ words— 
those which by their very utterance inflict injury or 
tend to incite an immediate breach of the peace. It 
has been well observed that such utterances are no 
essential part of any exposition of ideas, and are of 
such slight social value as a step to truth that any 
benefit that may be derived from them is clearly out­



weighed by the social interest in order and morality. 
“ Resort to epithets or personal abuse is not in any 
proper sense communication of information or opinion 
safeguarded by the Constitution, and its punishment 
as a criminal act would raise no question under that 
instrument.”

It is also settled law that picketing or other like conduct 
calculated to induce violations of the law by others is 
not constitutionally protected. In Giboney v. Empire Stor­
age & Ice Company, 336 U. 8. 490, 93 L. Ed. 834 (1949), 
the Ice & Coal Drivers’ Union sought to force Empire not 
to sell ice to peddlers who refused to join the union, and 
to accomplish this end, commenced picketing Empire. 
Such an agreement as the Union sought to exact from 
Empire was prohibited by the Missouri Anti-Trust Law. 
Empire sought and obtained an injunction in state court. 
The Unions attacked the statute as applied to them as 
being a violation of First Amendment rights made ap­
plicable against the state by the 14th. It was said:

“ It rarely has been suggested that the constitu­
tional freedom for speech and press extends its im­
munity to speech or writing used as an integral part 
of conduct in violation of a valid criminal statute.”

 ̂ ^

“ . . . Nor can we say that the publication here 
should not have been restrained because of the pos­
sibility of separating the picketing conduct into il­
legal and legal parts. Thomas v. Collins, supra (323 
II. 8. at 547, 89 L. Ed. 449, 65 S. Ct. 315). For the 
placards were to effectuate the purposes of an un­
lawful combination, and their sole, unlawful imme­
diate objective was to induce Empire to violate the 
Missouri law by acquiescing in unlawful demands to 
agree not to sell ice to non-union peddlers. It is true 
that the agreements and course of conduct here were



as in most instances brought about through speaking 
or writing. But it has never been deemed an abridg­
ment of freedom of speech or press to make a course 
of conduct illegal merely because the conduct was 
in part initiated, evidenced, or carried out by means 
of language, either spoken, written, or printed.”

See also, in accord, Local Union v. Graham, 345 
IT. S. 192, 97 L. Ed. 946 (1953), and Ellis et al. v. 
Parks, 212 Ga. 540, 93 S. E. 2d 708 (1956).

Similarly, in Hughes v. Superior Court, 339 IT. S. 460, 
94 L. Ed. 985 (1950), a state court had enjoined picketing 
of a store by Negroes seeking to compel the owner to em­
ploy Negro clerks on a “ quota” basis. In upholding the 
injunction, the Supreme Court stated:

“ But while picketing is a mode of communication 
it is inseparably something more and different. In­
dustrial picketing is more than free speech, since it 
involves patrol of a particular locality and since the 
very presence of a picket line may induce action of 
one kind or another, quite irrespective of the nature 
of the ideas which are being disseminated.”

# # *  # # #

“ . . . Picketing is not beyond the control of a 
State if the manner in which picketing is conducted 
or the purpose which it seeks to effectuate gives 
ground for its disallowance.”

A case very relevant to the present one is Feiner v. 
New York, 340 IT. S. 315, 95 L. Ed. 295 (1951). In this 
case, the petitioner was convicted of disorderly conduct, 
for addressing a group on a crowded street, criticizing 
officials, and urging Negroes to rise up and fight for their 
rights. The crowd became restless, and some pedestrians 
were forced to walk off the sidewalk in order to get 
around. Upon being unable to get petitioner to move on,

—  31 —



lie was arrested for provoking a breach of the peace. 
The bill of particulars specified:

“ . . . By ignoring and refusing to heed and obey 
reasonable police orders issued at the time and place 
mentioned in the information to regulate and control 
said crowd and to prevent! a breach or breaches of 
the peace and to prevent injury to pedestrians attempt­
ing to use said walk, and being forced into the high­
way adjacent to the place in question, and prevent 
injury to the public generally.”

The Court quotes from Cantwell v. Connecticut, supra, 
and declares that “ This court respects, as it must, the 
interest of the community in maintaining peace and order 
on its streets.” (p. 320); and further observes that the 
ordinary murmurings of a hostile crowd can not stifle 
the speaker’s rights, and concluded:

“ . . . But we are not faced here with such a situ­
ation. I t is one thing to say that the police cannot be 
used as an instrument for the suppression of unpopu­
lar views, and another to say that, when as here the 
speaker passes the bounds of argument or persuasion 
and undertakes incitement to riot, they are powerless 
to prevent a breach of the peace.”

In a concurring opinion, Mr. Justice Frankfurter de­
clared :

“ It is not a constitutional principle that, in acting 
to preserve order, the police must proceed against the 
crowd, whatever its size and temper, and not against 
the speaker” (p. 289).

The recent case of Edwards v. South Carolina, 372 U. S.
229, 83 S. Ct. 680 (1963), involving breach of the peace 
convictions, is obviously distinguishable. To begin with, 
as the Court observed:

—  32 •—



“ The City Manager testified that he recognized 
some of the onlookers, whom he did not identify, as 
‘possible trouble makers,’ but his subsequent testi­
mony made clear that nobody among the crowd actu­
ally caused or threatened any trouble. There was no 
obstruction of pedestrian or vehicular traffic within 
the State House grounds. No vehicle was prevented 
from entering or leaving the horeshoe area. Although 
vehicular traffic at a nearby street intersection was 
slowed down somewhat, an officer was dispatched to 
keep traffic moving. There were a number of by­
standers on the public sidewalks adjacent to the State 
House grounds, but they all moved on when asked to 
do so, and there was no impediment of pedestrian 
traffic. Police protection at the scene was at all times 
sufficient to meet any foreseeable possibility of dis­
order. ’ ’

* # # = * * # *

“ There was no violence or threat of violence on their 
part or on the part of any member of the crowd 
watching them. Police protection was ample.”

Continuing, the Court distinguished Feiner v. New York,
supra:

“ This, therefore, was a far cry from the situation 
in Feiner v. New York, 340 U. S. 315, where two 
policemen were faced with a crowd which was ‘push­
ing, shoving, and milling around,’ id., at 317, where 
at least one member of the crowd ‘threatened violence 
if the police did not act,’ id., at 317 where ‘the crowd 
was pressing closer around petitioner and the officer,’ 
id., at 318 and where ‘the speaker passes the bounds 
of argument or persuasion and undertakes incitement 
to riot.’ Id., at 321. And the record is barren of any 
evidence of ‘fighting words.’ See Ohaplinsky v. New 
Hampshire, 315 IT. 8. 568.



—  34

“ We do not review in this case criminal convictions 
resulting from the even-handed application of a pre­
cise and narrowly drawn regulatory statute evincing 
a legislative judgment that certain specific conduct 
be limited or proscribed. If, for example, the peti­
tioners had been convicted upon evidence that they 
had violated a law regulating traffic, or had disobeyed 
a law reasonably limiting the periods during which 
the State House grounds were open to the public, this 
would be a different case.”

The factual situation delineated by this record and sum­
marized in the “ Statement of the Case” discloses an en­
tirely different situation. The defendants themselves were 
inciting others to violence which actually took place, and 
there was no occasion for speculating as to whether any 
“ clear or present danger” existed, aside from the fact 
that the state does not have to wait until the armed con­
flict is in full swing before stepping in. Dennis et al. v. 
United States, 341 IT. S. 494, 95 L. Ed. 1137 (1950). The 
defendants themselves also were actually violating the 
parade ordinance, were blocking traffic, and refused to 
move on when directed by the officers, also a violation of 
a local ordinance.

The ordinances involved here are as follows:
“ It shall be unlawful for any person or number 

of persons to congregate in such manners on the side­
walks of the City so as to obstruct same” (Chap. 24, 
§36 of City Code of Albany).

“ All parades, demonstrations or public addresses, 
on the streets are hereby prohibited, except with the 
written consent of the City Manager” 1 (Chap. 24, 
§35 of City Code).

i The testimony shows that the only part ot this ordinance applied 
or sought to be applied against defendants was so much thereof as re­
lated to “parades”.



“ No person shall wilfully fail or refuse to comply 
wTith any lawful order or direction of a police officer” 
(Chap. 11, § 6 of City Code).

“ Any person who shall, within the corporate limits 
of the city or its police jurisdiction, he guilty of 
disorderly conduct, by either fighting or quarreling, 
or by using any indecent, vulgar, obscene or abusive 
language in or near a public place, or by making 
any unnecessary noise, or by cursing or swearing in 
or near public places, or by striking or attempting 
to strike another, or by insulting any person by word 
or action, or by any act which does, or which tends 
to disturb the peace and quiet of the city, or any 
portion thereof, shall be punished as provided in 
section 4 of Chapter 1” (Chap. 14, § 7 of City Code).

No attack was made belowT on the validity of these ordi­
nances.

Nor is this a case where the city has sought to quell 
peaceful demonstrations merely because large numbers of 
persons wffio disagree therewith threaten violence, as was 
the situation in Congress of Racial Equality v. Douglas, 
318 F. 2d 95 (C. A, 5th, 1963). Here, the defendants, both 
by speeches and by their acts, incited and caused others 
who agreed with them to commit acts of violence. As 
examples, see the testimony of A1 Morris (390A-404A); 
David O’Scott (475A); Captain J .  E. Friend (531A); 
Lt. B. L. Manley (55A; 583A). The defendants themselves 
admitted that they would have to assume part respon­
sibility for the violence (116A; 143-144A; 956A); and see 
plaintiff’s exhibit 4 (657A). The fact that defendants 
were in control of the situation is also borne out by the 
fact that when a “ day of penance” was called by them, 
there were no demonstrations, marches or violence (145A). 
Moreover, as disclosed by the evidence, the violence in­
variably followed or accompanied marches or other dem­
onstrations conducted by defendants (95A; 334A; 559A).



36

Chief Pritchett testified that he advised defendants that 
their actions were encouraging other Negroes to commit 
acts of violence (116A), and in further testimony relative 
to the provocative speeches of defendant Abernathy, he 
declared:

“ A. I think its had when people of his intelligence 
are talking to people of lesser intelligence and inciting 
them, not only to violate the laws but to die on the 
streets, if necessary, in the City of Albany. And T 
think that is very had. I think i t ’s very bad to incite 
people who are not of his equal intelligence but in 
inciting and encouraging them, not only to disobey 
laws but, if need be, to die in the Streets of Albany 
to accomplish what they want to get.

Q. Can you think of any greater resolve that one 
can have than to be willing to die for the cause of 
human rights, if it became necessary? A. I can 
think of no greater cause for anybody than to stand 
for what they think is right. I think that’s what 
American in based on, is ideals; but T think that 
when people of the Albany Movement or anybody 
of any race, color or creed has an argument of some 
belief that they’re being mistreated, that they have 
legal ways in which to gain the attention of the 
public and of the world, other than through mass 
demonstration, through mass hysteria and inciting 
people to violence, the way they have here in Albany 
and Dougherty County. I think it’s very indignant 
of their position as preachers, of the leaders of their 
people. I ’ve talked to Dr. King on numerous occasions 
and I ’ve told him that I don’t disapprove with him 
in his principles to encourage the betterment of the 
Negro people, but I disagree with him in his, methods 
of coming into Albany, stating he’s going to turn 
it upside down; that he’s going to make the Com­
missioners, when he gets through with them, where



they’ll be glad to talk to him; and other ways, rather 
than taking it through the legal ways in which we’re 
sitting here as civilized people doing today” (952- 
953A).

(a) The Parade Ordinance.
This ordinance, quoted hereinbefore, was not attacked 

by the defendants (who are plaintiffs in No. 731) either 
by pleading or otherwise, the contention being limited 
to a claim that a permit was improperly denied (T. 8). 
The City Manager of Albany testified as to his admin­
istration of this ordinance as follows:

“ Q. Now, what do you consider a parade? A. A 
parade is a formed group of people or vehicles or a 
procession for the purpose of demonstrating a cause, 
drawing attention or celebrating an occasion, are 
some of the definitions.

Q. What number of people do you include in that 
definition? A. I could possible go, I suppose, as 10 
or 15 for the purposes formerly enumerated.

Q. What do you call a demonstration! A. A dem­
onstration would be a gathering or a group of per­
sons to show a cause, celebrate an occasion or draw 
attention.

Q. How many persons would be involved in a dem­
onstration, according to your definition? A. Possibly 
the same number as for a parade” (837-838A).

He also testified that in passing upon an application, 
he doesn’t consider whether he agrees or disagrees with 
the objectives of the parade or demonstration (866-867); 
that what he does consider is “ the time, the route and 
the effect it would have on the overall use of the streets 
and public ways” (837A). Nor does he consider the 
hostility of groups opposing the objectives of those con­
ducting the parade (884A). Moreover, defendants never 
made application for a parade permit, either orally or in



38

writing (868A; 83A). The matter was brought up on 
one occasion, and he advised defendants that he would 
have to have an application before him before he could 
pass upon it (844A), and defendant Anderson admitted 
that he did not consider this conversation to be a request 
and denial (904A). Defendant’s letter of July 19, 1962 
(R. 11), was not in the form of a request for a permit, 
and was treated by city officials as notification that de­
fendants planned to parade without a license, pursuant 
to which Civil Action 727 was filed (876A; 808A).

As thus applied, defendants are here in no position to 
challenge the administration of the parade ordinance, since 
they never made application under it. Poulos v. New 
Hampshire, 345 U. S. 395, 409, 97 L. Ed. 1105 (1953). Had 
they attacked the validity of the ordinance itself, of 
course, application and denial need not be shown. Lovell 
v. Griffin, 303 IT. S. 444, 82 L. Ed. 949 (1938). Aside from 
the fact that no attack was made on the ordinance here, 
it manifestly was not subject to challenge, as administered.

In Hague v. C. I. 0., 307 U. S. 496, 515, 83 L. Ed. 1423 
(1939), a municipal ordinance was declared void which 
purported to vest municipal officials with uncontrolled 
authority to determine whether any literature could be 
circulated or meetings held within the city. The Court 
declared, however:

‘ ‘ The privilege of a citizen of the United States to 
use the streets 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.”

Similarly, in Cantwell v. Connecticut, 310 U. S. 296, 308, 
84 L. Ed. 1213 (1940), Jehovah’s witnesses were convicted



—  39 —

for breach of the peace, in going from house to house with 
hooks and phonograph records, seeking to play the rec­
ords, and sell books which the records introduced. The 
statute prohibited any solicitation unless the cause was 
first approved by the local officials. The statute was de­
clared void, as it confers unlimited authority on local offi­
cials to determine whether a cause is a “ religious one,” 
and upon finding it to be not such, to deny the permit. 
It was said, however:

“ No one would have the hardihood to suggest that 
the principle of freedom of speech sanctions incitement 
to riot or that religious liberty connotes the privilege 
to exhort others to physical attack upon those be­
longing to another sect. When clear and present 
danger of riot, disorder, interference with traffic upon 
the public streets, or other immediate threat to public 
safety, peace, or order, appears, the power to the state 
to prevent or punish is obvious.”

On the other hand, in Cox v. New Hampshire, 312 II. S. 
569, 544, 85 L. Ed. 1049 (1941), appellants were convicted 
of violation of an ordinance making it an offense to parade 
or conduct a procession upon a public street without a 
special license. The Court declared:

“ Civil liberties, as guaranteed by the Constitution 
imply the existence of an organized society maintain­
ing public order without which liberty itself would 
be lost in the excesses of unrestrained abuses. The 
authority of a municipality to impose regulations in 
order to assure the safety and convenience of the 
people in the use of public highways has never been 
regarded as inconsistent with civil liberties but rather 
as one of the means of safeguarding the good order 
upon which they ultimately depend. The control of 
travel on the streets of cities is the most familiar il­
lustration of this recognition of social need. Where



—  40

a restriction of the use of highways in that relation 
is designed to promote the public convenience in the 
interest of all, it cannot be disregarded by the at­
tempted exercise of some civil right which in other 
circumstances would be entitled to protection. One 
would not be justified in ignoring the familiar red 
traffic light because he thought it his religious duty 
to disobey the municipal command or sought by that 
means to direct public attention to an announcement 
of his opinions. As regulation of the use of the streets 
for parades and processions is a traditional exercise 
of control by local government, the question in a 
particular case is whether that control is exerted so 
as not to deny or unwarrantedly abridge the right of 
assembly and the opportunities for the communica­
tion of thought and the discussion of public questions 
immemoriallv associated with resort to public places.”

The Court noted that the ordinance was limited in scope, 
confined to considerations involving traffic, time and cir­
cumstances. The convictions were upheld.

To the same effect is Poulos v. New Hampshire, 345
U. S. 395, 97 L. Ed. 1105 (1953), where the defendant, a 
Jehovah’s witness, was convicted of violating an ordinance 
making it illegal to conduct religious services in a city 
park without first obtaining a license.

Observing that the ordinance had been given a limited 
interpretation by the state courts, removing any element 
of discretion from, the officials administering it, the Court 
declares:

“ The principles of the First Amendment are not 
to be treated as a promise that everyone with opinions 
or beliefs to express may gather around him at any 
public place and at any time a group for discussion 
or instruction. It is a non-sequitur to say that First



—  41 —

Amendment rights may not be regulated because they 
hold a preferred position in the hierarchy of the con­
stitutional guarantees of the incidents of freedom. 
This Court has never so held and indeed has definitely 
indicated the contrary. It has indicated approval 
of reasonable nondiseriminatory regulation by the 
governmental authority that preserves peace, order 
and tranquility without deprivation of the First 
Amendment guarantees of free speech, press and the 
exercise of religion. When considering specifically the 
regulation of the use of public parks, this Court has 
taken the same position. See the quotation from the 
Hague Case below and Kunz v. New York, 340 IT. S. 
290-, 293, 294, 95 L. Ed. 280, 283, 284, 71 S. Ct. 312, 329; 
Saia v. New York, 334 U. S. 558, 562, 92 L. Ed. 1574, 
1578, 68 S. Ct. 1148. In these eases, the ordinances 
were held invalid, not because they regulated the use 
of the parks for meeting and instruction but because 
they left complete discretion to refuse the use in the 
hands of officials. ‘The right to be heard is placed in 
the uncontrolled discretion of the Chief of Police.’ 
334 U. S. at 560. ‘[W]e have consistently condemned 
licensing systems which vest in an administrative 
official discretion to grant or withhold a permit upon 
broad criteria unrelated to proper regulation of pub­
lic places.’ ”

(b) An Injunction Was Properly Denied in 
Civil Action 731.

The only evidence adduced by the plaintiffs in this case 
in support of their motion for preliminary injunction 
against interference with their demonstrations and picket­
ing1 was to the effect that on one occasion in March, 1962,

i An injunction enjoining the City officials from enforcing segregation 
has already been issued in another aspect of this litigation. Anderson v. 
Albany, 321 F. 2d 649 (C. A. 5th 1963).



42 —

arrests were made of four of the plaintiffs because of their 
picketing (149B), a matter also touched on during the 
hearing on Civil Action 727 in connection with several 
photographs of the pickets (266A). The circumstances sur­
rounding these arrests were disputed. Officer Summerford 
testified that it was. around 6 o’clock in the afternoon and 
the pickets were causing the streets to become congested 
(274B). The pictures adduced by defendants did not accu­
rately depict the situation (279B, 289B). Chief Pritchett 
testified that the pictures did not accurately depict the 
conditions of traffic generated by the pickets (354A). Aside 
from this, however, it is established that even peaceful 
picketing can be prohibited when enmeshed in violence.

In Milk Wagon Drivers’ Union v. Meadowmor Dairies,
312 U. 8. 287, 85 L. Ed. 836 (1941), following numerous 
instances of window smashing, bombings, wrecking of 
trucks and other acts of violence, an injunction was ulti­
mately issued by the state courts when enjoined not only 
acts of violence, but also peaceful picketing.

The Supreme Court stated the issue:
‘ ‘ The question which thus emerges is whether a state 

can choose to authorize its courts to enjoin acts of 
picketing in themselves peaceful when they are en­
meshed with contemporaneously violent conduct which 
is coneededly outlawed.”

The Court then declared:
” . . . But utterance in a context of violence can 

lose its significance as an appeal to reason and become 
part of an instrument of force. Such utterance was not 
meant to be sheltered by the Constitution.”

 ̂  ̂ ^

“ . . . And acts which in isolation are peaceful
may be part of a coercive thrust when entangled with



—  43

acts of violence. The picketing in this case was set in 
a background of violence. In such a setting it could 
justifiably be concluded that the momentum of fear 
generated by past violence would survive even though 
future picketing might be wholly peaceful. So the Su­
preme Court of Illinois found. We cannot say that 
such a finding so contradicted experience as to war­
rant our rejection. Nor can we say that it was written 
into the Fourteenth Amendment that a state through 
its courts cannot base protection against future coer­
cion on an inference of the continuing threat of past 
misconduct.”

In addition there were no facts adduced to show that 
defendants (plaintiffs in No. 731) do not have adequate 
remedy by defending in the municipal prosecutions. Beal 
v. Missouri Pac. R. R. Corp., 312 U. S. 45, 85 L. Ed. 577 
(1941); Douglas v. Jeannette, 319 U. S. 157, 87 L. Ed. 1324 
(1943); Stefanelli v. Minard, 342 U. S. 117, 96 L. Ed. 138 
(1951); City of Miami v. Sutton, 181 F. 2d 644, 648 (C. A. 
5th 1950); Galfas v. City of Atlanta, 193 F. 2d 931 (C. A. 
5th 1952).

4. The Court Below Erred in Denying a Default Judgment 
on the Counterclaim in Civil Action 731.

The counterclaim of the City and its officials in Civil 
Action 731 (T. 18) was never answered. Motion for judg­
ment by default was made (18B) and the affidavit re­
quired by Rule 55 was duly filed (T. 24). The plaintiffs 
in C. A. 731, recognized that they had not answered the 
counterclaim, but never secured a ruling on their motion 
to treat their answer in C. A. 727 as an answer to the coun­
terclaim in No. 731 (24B). A plaintiff is required to an­
swer a counterclaim. Rule 12, Fed. Rules Civ. Procedure. 
Failing to so do, a judgment by default is proper. Rule 
55 (d).



44 —

CONCLUSION.
The Court below erred in denying an injunction against 

the illegal demonstrations and marches, both in Civil 
Action 727 and on the counterclaim in Civil Action 731. 
There was no error, however, in denial of an injunction on 
the original complaint in No. 731.

Respectfully submitted,

40 Capitol Square, 
Atlanta, Georgia,

Albany, Georgia,

Elberton, Georgia,

EUGENE COOK,
Attorney General of Georgia,

H. G. RAWLS,
City Attorney, Albany, Georgia,

H. P. BURT,

E. FREEMAN I,EVERETT.
Deputy Assistant Attorney General,

Attorneys for Appellants.

Certificate of Service.
This is to certify that I have th is ...........day of Decem­

ber, 1963, served one copy of the foregoing printed brief 
for Appellants in above-stated case on Mr. C. B. King, Mr. 
Donald L. Hollowell and Mrs. Constance Baker Motley, 
attorneys for Appellees, by depositing a true copy of same 
in the United States mail, air mail postage prepaid, ad­
dressed to them at their respective addresses.

H. G. Rawls,
Attorney for Appellees.