Walker v. City of Birmingham/Dissent Jr.

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

Under cover of exhortation that the Negro exercise 'respect for judicial process,' the Court empties the Supremacy Clause of its primacy by elevating a state rule of judicial administration above the right of free expression guaranteed by the Federal Constitution. And the Court does so by letting loose a devastatingly destructive weapon for suppression of cherished freedoms heretofore believed indispensable to maintenance of our free society. I cannot believe that this distortion in the hierarchy of values upon which our society has been and must be ordered can have any significance beyond its function as a vehicle to affirm these contempt convictions.

Petitioners are eight Negro Ministers. They were convicted of criminal contempt for violation of an ex parte injunction issued by the Circuit Court of Jefferson County, Alabama, by engaging in street parades without a municipal permit on Good Friday and Easter Sunday 1963. These were the days when Birmingham was a world symbol of implacable official hostility to Negro efforts to gain civil rights, however peacefully sought. The purpose of these demonstrations was peaceably to publicize and dramatize the civil rights grievances of the Negro people. The underlying permit ordinance made it unlawful 'to organize or hold * *  * or to take part or participate in, any parade or procession or other public demonstration on the streets *  *  * ' without a permit. A permit was issuable by the City Commission 'unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.'

Attempts by petitioners at the contempt hearing to show that they tried to obtain a permit but were rudely rebuffed by city officials were aborted when the trial court sustained objections to the testimony. It did appear, however, that on April 3, a member of the Alabama Christian Movement for Human Rights (ACMHR) was sent by one of the petitioners, the Reverend Mr. Shuttlesworth, to Birmingham city hall to inquire about permits for future demonstrations. The member stated at trial:

'I asked (Police) Commissioner Connor for the permit, and     asked if he could issue the permit, or other persons who      would refer me to, persons who would issue a permit. He said,     'No, you will not get a permit in Birmingham, Alabama to      picket. I will picket you over to the City Jail,' and he     repeated that twice.'

Two days later the Reverend Mr. Shuttlesworth sent a telegram to Police om missioner Connor requesting a permit on behalf of ACMHR to picket on given dates 'against the injustices of segregation and discrimination.' Connor replied that the permit could be granted only by the full Commission and stated, 'I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.' Petitioners were also frustrated in their attempts at the contempt hearing to show that permits were granted, not by the Commission, but by the city clerk at the request of the traffic department, and that they were issued in a discriminatory manner.

On April 6-7 and April 9-10, Negroes were arrested for parading without a permit. Late in the night of April 10, the city requested and immediately obtained an ex parte injunction without prior notice to petitioners. Notice of the issuance was given to five of the petitioners on April 11. The decree tracked the wording of the permit ordinance, except that it was still broader and more pervasive. It enjoined:

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

Several of the Negro ministers issued statements that they would refuse to comply with what they believed to be, and is indeed, a blatantly unconstitutional restraining order.

On April 12, Good Friday, a planned march took place, beginning at a church in the Negro section of the city and continuing to city hall. The police, who were notified in advance by one of the petitioners of the time and route of the march, blocked the streets to traffic in the area of the church and excluded white persons from the Negro area. Approximately 50 persons marched, led by three petitioners, Martin Luther King, Ralph Abernathy, and Shuttlesworth. A large crowd of Negro onlookers which had gathered outside the church remained separate from the procession. A few blocks from the church the police stopped the procession and arrested, and jailed, most of the marchers, including the three leaders.

On Easter Sunday another planned demonstration was conducted. The police again were given advance notice, and again blocked the streets to traffic and white persons in the vicinity of the church. Several hundred persons were assembled at the church. Approximately 50 persons who emerged from the church began walking peaceably. Several blocks from the church the procession was stopped, as on Good Friday, and about 20 persons, including five petitioners, were arrested. The participants in both parades were in every way orderly; the only episode of violence, according a police inspector, was rock throwing by three onlookers on Easter Sunday, after petitioners were arrested; the thre rock throwers were immediately taken into custody by the police.

On Monday, April 15, petitioners moved to dissolve the injunction, and the city initiated criminal contempt proceedings against petitioners. At the hearing, held a week later, the Jefferson County Court considered the contempt charge first. Petitioners urged that the injunction and underlying permit ordinance were impermissibly vague prior restraints on exercise of First Amendment rights and that the ordinance had been discriminatorily applied. The court, however, limited evidence primarily to two questions: notice of and violation of the injunction. The court stated that 'the validity of its injunction order stands upon its prima facie authority to execute the same.' Petitioners were found guilty of criminal contempt and sentenced to five days in jail and a $50 fine. The Alabama Supreme Court, adopting the reasoning of United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, applicable to federal court orders, affirmed, holding that the validity of the injunction and underlying permit ordinance could not be challenged in a contempt proceeding. 279 Ala. 53, 181 So.2d 493.

The holding of the Alabama Supreme Court, and the affirmance of its decision by this Court, rest on the assumption that petitioners may be criminally punished although the parade ordinance and the injunction be unconstitutional on their faces as in violation of the First Amendment, and even if the parade ordinance was discriminatorily applied. It must therefore be assumed, for purposes of review of the Alabama Supreme Court's decision, and in assessing the Court's affirmance, that petitioners could successfully sustain the contentions (into which the Alabama courts refused to inquire) that the ordinance and injunction are in fact facially unconstitutional as excessively vague prior restraints on First Amendment rights and that the ordinance had been discriminatorily applied. It should be noted, without elaboration, that there is clearly sound basis in fact for this assumption: the Alabama Court of Appeals, in a case involving one of these petitioners, has held that the ordinance is 'void for vagueness because of overbroad, and consequently meaningless, standards for the issuance of permits for processions,' and that the ordinance has been enforced discriminatorily. Shuttlesworth v. City of Birmingham, 43 Ala.App. 68, 180 So.2d 114 (1965). However, it is not the merits of such claims, but the refusal of the Alabama courts to consider them, that is here involved.

Like the Court, I start with the premise that States are free to adopt rules of judicial administration designed to require respect for their courts' orders. See Howat v. State of Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550. But this does not mean that this valid state interest does not admit of collision with other and more vital interests. Surely the proposition requires no citation that a valid state interest must give way when it infringes on rights guaranteed by the Federal Constitution. The plain meaning of the Supremacy Clause requires no less.

In the present case we are confronted with a collision between Alabama's interest in requiring adherence to orders of its courts and the constitutional prohibition against abridgment of freedom of speech, more particularly 'the right of the people peaceably to assemble,' and the right 'to petition the Government for a redress of grievances.' See, e.g., Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Edwards v. State of South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. Special considerations have time and again been deemed by us to attend protection of these freedoms in the face of state interests the vindication of which results in prior restraints upon their exercise, or their regulation in a vague or overbroad manner, or in a way which gives unbridled discretion to limit their exercise to an individual or group of individuals. To give these freedoms the necessary 'breathing space to survive,' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, the Court has modified traditional rules of standing and prematurity. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the 'chilling effect' upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.

The vitality of First Amendment protections has, as a result, been deemed to rest in large measure upon the ability of the individual to take his chances and express himself in the face of such restraints, armed with the ability to challenge those restraints if the State seeks to penalize that expression. The most striking examples of the right to speak first and challenge later, and of peculiar moment for the present case, are the cases concerning the ability of an individual to challenge a permit or licensing statute giving broad discretion to an individual or group, such as the Birmingham permit ordinance, despite the fact that he dd not attempt to obtain a permit or license. In Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302, the accused, prosecuted for soliciting members for an organization without a permit, contended that the ordinance was invalid on its face because it made exercise of freedom of speech contingent upon the will of the issuing authority and therefore was an invalid prior restraint-the same contention made by petitioners with regard to the Birmingham ordinance. The Georgia Court of Appeals, 94 Ga.App. 18, 93 S.E.2d 375, held that '(h)aving made no effort to secure a license the defendant is in no position to claim that any section of the ordinance is invalid or unconstitutional * *  * .' Staub v. City of Baxley, supra, at 318, 78 S.Ct. at 280. We refused to regard this holding as an adequate nonfederal ground for decision, stating, supra, at 319, 78 S.Ct. at 281:

'The decisions of this Court have uniformly held that the     failure to apply for a license under an ordinance which on      its face violates the Constitution does not preclude review in this Court of a judgment of      conviction under such an ordinance. Smith v. Cahoon, 283 U.S.     553, 562, 51 S.Ct. 582, 585, 75 L.Ed. 1264; Lovell v. City of     Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949.     'The Constitution can hardly be thought to deny to one      subjected to the restraints of such an ordinance the right to      attack its constitutionality, because he has not yielded to      its demands.' Jones v. City of Opelika, 316 U.S. 584, 602, 62      S.Ct. 1231, 1242, 86 L.Ed. 1691, dissenting opinion, adopted     per curiam on rehearing, 319 U.S. 103, 104, 63 S.Ct. 890, 87     L.Ed. 1290.'

See also Cox v. State of Louisiana, 379 U.S. 536, 556-557, 85 S.Ct. 453, 465-466, 13 L.Ed.2d 471.

Yet by some inscrutable legerdemain these constitutionally secured rights to challenge prior restraints invalid on their face are lost if the State takes the precaution to have some judge append his signature to an ex parte order which recites the words of the invalid statute. The State neatly insulates its legislation from challnge by mere incorporation of the identical stifling, overbroad, and vague restraints on exercise of the First Amendment freedoms into an even more vague and pervasive injunction obtained invisibly and upon a stage darkened lest it be open to scrutiny by those affected. The ex parte order of the judicial officer exercising broad equitable powers is glorified above the presumably carefully considered, even if hopelessly invalid, mandates of the legislative branch. I would expect this tribunal, charged as it is with the ultimate responsibility to safeguard our constitutional freedoms, to regard the ex parte injunctive tool to be far more dangerous than statutes to First Amendment freedoms. One would expect this Court particularly to remember the stern lesson history taught courts, in the context of the labor injunction, that the ex parte injunction represents the most devastating of restraints on constitutionally protected activities. Today, however, the weapon is given complete invulnerability in the one context in which the danger from broad prior restraints has been thought to be the most acute. Were it not for the ex parte injunction, petitioners could have paraded first and challenged the permit ordinance later. But because of the ex parte stamp of a judicial officer on a copy of the invalid ordinance they barred not only from challenging the permit ordinance, but also the potentially more stifling yet unconsidered restraints embodied in the injunction itself.

The Court's religious deference to the state court's application of the Mine Workers' rule in the present case is in stark contrast to the Court's approach in In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198. The state court issued an ex parte injunction against certain labor picketing. Green, counsel for the union, advised the union that the order was invalid and that it should continue to picket so that the order could be tested in a contempt hearing. The court hed Green in contempt without allowing any challenge to the order. This Court stated that the issue was 'whether the state court was trenching on the federal domain.' In re Green, supra, at 692, 82 S.Ct. at 1116. It remanded for a hearing to determine whether the activity enjoined was 'arguably' subject to Labor Board jurisdiction. In Green, therefore, we rejected blind effectuation of the State's interest in requiring compliance with its court's ex parte injunctions because of the 'arguable' collision with federal labor policy. Yet in the present case the Court affirms the determination of a state court which was willing to assume that its ex parte order and the underlying statute were repugnant on their face to the First Amendment of the Federal Constitution. One must wonder what an odd inversion of values it is to afford greater respect to an 'arguable' collision with federal labor policy than an assumedly patent interference with constitutional rights so high in the scale of constitutional values that this Court has described them as being 'delicate and vulnerable, as well as supremely precious in our society.' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405.

It is said that petitioners should have sought to dissolve the injunction before conducting their processions. That argument is plainly repugnant to the principle that First Amendment freedoms may be exercised in the face of legislative prior restraints, and a fortiori of ex parte restraints broader than such legislative restraints, which may be challenged in any subsequent proceeding for their violation. But at all events, prior resort to a motion to dissolve this injunction could not be required because of the complete absence of any time limits on the duration of the ex parte order. See Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649. Even the Alabama Supreme Court's Rule 47 leaves the timing of full judicial consideration of the validity of the restraint to that court's untrammeled discretion.

The shifting of the burden to petitioners to show the lawfulness of their conduct prior to engaging in enjoined activity also is contrary to the principle, settled by Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, that

'The man who knows that he must bring forth proof and     persuade another of the lawfulness of his conduct necessarily      must steer far wider of the unlawful zone than if the State      must bear these burdens. * *  * In practical operation,      therefore, this procedural device must necessarily produce a      result which the State could not command directly. It can     only result in a deterrence of speech which the Constitution      makes free.'

The suggestion that petitioners be muffled pending outcome of dissolution proceedings without any measurable time limits is particularly inappropriate in the setting of this case. Critical to the plain exercise of the right of protest was the timing of that exercise. First, the marches were part of a program to arouse community support for petitioners' assault on segregation there. A cessation of these activities, even for a short period, might deal a crippling blow to petitioners' efforts. Second, in dramatization of their cause, petitioners, all ministers, chose April 12, Good Friday, and April 14, Easter Sunday, for their protests hoping to gain the attention to their cause which such timing might attract. Petitioners received notice of the order April 11. The ability to exercise protected protest at a time when such exercise would be effective must be as protected as the beliefs themselves. Cf. Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877; Grosjean v. American Press Co., 297 U.S. 233, 248-250, 56 S.Ct. 444, 448-449, 80 L.Ed. 660; Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949. It is a flagrant denial of constitutional guarantees to balance away this principle in the name of 'respect for judicial process.' To preach 'respect' in this context is to deny the right to speak at all.

The Court today lets loose a devastatingly destructive weapon for infringement of freedoms jealously safeguarded not so much for the benefit of any given group of any given persuasion as for the benefit of all of us. We cannot permit fears of 'riots' and 'civil disobedience' generated by slogans like 'Black Power' to divert our attention from what is here at stake-not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights, thus arming the state courts with the power to punish as a 'contempt' what they otherwise could not punish at all. Constitutional restrictions against abridgments of First Amendment freedoms limit judicial equally with legislative and executive power. Convictions for contempt of court orders which invalidly abridge First Amendment freedoms must be condemned equally with convictions for violation of statutes which do the same thing. I respectfully dissent.