Walker v. City of Birmingham/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice FORTAS concur, dissenting.

We sit as a court of law functioning primarily as a referee in the federal system. Our function in cases coming to us from state courts is to make sure that state tribunals and agencies work within the limits of the Constitution. Since the Alabama courts have flouted the First Amendment, I would reverse the judgment.

Picketing and parading are methods of expression protected by the First Amendment against both state and federal abridgment. Edwards v. South Carolina, 372 U.S. 229, 235-236, 83 S.Ct. 680, 683-684, 9 L.Ed.2d 697; Cox v. State of Louisiana, 379 U.S. 536, 546-548, 85 S.Ct. 453, 459-461, 13 L.Ed.2d 471. Since they involve more than speech itself and implicate street traffic, the accommodation of the public and the like, they may be regulated as to the times and places of the demonstrations. Schneider v. State, 308 U.S. 147, 160-161, 60 S.Ct. 146, 150-151, 84 L.Ed. 155; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Poulos v. State of New Hampshire, 345 U.S. 395, 405-406, 73 S.Ct. 760, 766-767, 97 L.Ed. 1105. But a State cannot deny the right to use streets or parks or other public grounds for the purpose of petitioning for the redress of grievances. See Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct. 954, 963-964, 83 L.Ed. 1423; Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151-152, 84 L.Ed. 155; Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049; Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262; Jamison v. State of Texas, 318 U.S. 413, 415-416, 63 S.Ct. 669, 671-672, 87 L.Ed. 869.

The rich can buy advertisements in newspapers, purchase radio or television time, and rent billboard space. Those less affluent are restricted to the use of handbills (Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292) or petitions, or parades, or mass meetings. This 'right of the people peaceably to assemble, and to petition the Government for a redress of grievance,' guaranteed by the First Amendment, applicable to the States by reason of the Fourteenth (Edwards v. South Carolina, supra, 372 U.S. at 235, 83 S.Ct. at 683), was flouted here.

The evidence shows that a permit was applied for. Mrs. Lola Hendricks, a member of the Alabama Christian Movement for Human Rights, authorized by its president, Reverend Shuttlesworth, on April 3, went to the poic e department and asked to see the person in charge of issuing permits. She then went to the office of Commissioner Eugene 'Bull' Connor and told him that 'we came up to apply or see about getting a permit for picketing, parading, demonstrating.' She asked Connor for the permit, 'asked if he could issue the permit, or other persons who would refer me to, persons who would issue a permit.' Commissioner Connor replied, 'No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail.' On April 5, petitioner Shuttlesworth sent a telegram to Commissioner Connor requesting a permit to picket on designated sidewalks on April 5 and 6. The message stated that 'the normal rules of picketing' would be observed. The same day, Connor wired back a reply stating that he could not individually grant a permit, that it was the responsibility of the entire Commission and that he 'insist(ed) that you and your people do not start any picketing on the streets in Birmingham, Alabama.' Petitioners' efforts to show that the City Commission did not grant permits, but that they were granted by the city clerk at the request of the traffic division were cut off.

The record shows that petitioners did not deliberately attempt to circumvent the permit requirement. Rather they diligently attempted to obtain a permit and were rudely rebuffed and then reasonably concluded that any further attempts would be fruitless.

The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it is invalid on its face. Lovell v. City of Griffin, 303 U.S. 444, 452-453, 58 S.Ct. 666, 669, 82 L.Ed. 949; Thornhill v. State of Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741 742, 84 L.Ed. 1093; Jones v. City of Opelika, 316 U.S. 584, 602, 62 S.Ct. 1231, 1241-1242, 86 L.Ed. 1691, adopted per curiam on rehearing, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290; Cantwell v. State of Connecticut, 310 U.S. 296, 305-306, 60 S.Ct. 900, 904, 84 L.Ed. 1213; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Staub v. City of Baxley, 355 U.S. 313, 319, 78 S.Ct. 227, 280-281, 2 L.Ed.2d 302.

By like reason, where a permit has been arbitrarily denied one need not pursue the long and expensive route to this Court to obtain a remedy. The reason is the same in both cases. For if a person must pursue his judicial remedy before he may speak, parade, or assemble, the occasion when protest is desired or needed will have become history and any later speech, parade, or assembly will be futile or pointless.

Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550, states the general rule that court injunctions are to be obeyed until error is found by normal and orderly review procedures. See United States v. United Mine Workers, 330 U.S. 258, 293-294, 67 S.Ct. 677, 695-696, 91 L.Ed. 884. But there is an exception where 'the question of jurisdiction' is 'frivolous and not substantial.' Id., at 293, 67 S.Ct., at 695, 696. Moreover, a state court injunction is not per se sacred where federal constitutional questions are involved. In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198, held that contempt could not be imposed without a hearing where the state decree bordered the federal domain in labor relations and only a hearing could determine whether there was federal pre-emption. In the present case the collision between this state court decree and the First Amendment is so obvious that no hearing is needed to determine the issue.

As already related, petitioners made two applications to Commissioner 'Bull' Connor for a permit and were turned down. At the trial, counsel for petitioners offered to prove through the city clerk that the Commission never has granted a permit, the issuing authority being the city clerk who acts at the request of the traffic division. But he was not allowed to answer the question. And when asked to describe thepr actice for granting permits an objection was raised and sustained.

It is clear that there are no published rules or regulations governing the manner of applying for permits, and it is clear from the record that some permits are issued. One who reads this record will have, I think, the abiding conviction that these people were denied a permit solely because their skin was not of the right color and their cause was not popular.

A court does not have jurisdiction to do what a city or other agency of a State lacks jurisdiction to do. The command of the Fourteenth Amendment, through which the First Amendment is made applicable to the States, is that no 'State' shall deprive any person of 'liberty' without due process of law. The decree of a state court is 'state' action in the constitutional sense (Shelley v. Kraemer, 334 U.S. 1, 14-18, 68 S.Ct. 836, 842-845, 92 L.Ed. 1161), as much as the action of the state police, the state prosecutor, the state legislature, or the Governor himself. An ordinance unconstitutional on its face or patently unconstitutional as applied-is not made sacred by an unconstitutional injunction that enforces it. It can and should be flouted in the manner of the ordinance itself. Courts as well as citizens are not free 'to ignore all the procedures of the law,' to use the Court's language. The 'constitutional freedom' of which the Court speaks can be won only if judges honor the Constitution.