Walker v. City of Birmingham – Oral Argument – March 14, 1967

Media for Walker v. City of Birmingham

Audio Transcription for Oral Argument – March 13, 1967 in Walker v. City of Birmingham

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Earl Warren:

Your argument.

Jack Greenberg:

Mr. Chief Justice, and may it please the Court.

In the ten minutes remaining to me, I would like to respond to some of the questions asked yesterday by Mr. Justice Fortas and Mr. Justice Harlan principally where they go to the very core of the case.

And they relate to the Mine Workers issue.

To its significance to this case and to the position, we are asking the Court to take with regard to the issue.

Mr. Justice Harlan asked whether it was not the threshold issue and it is in the sense that the Court faces the problem of whether it can reach the validity of the injunction on review of the judgment of content.

But it is not the issue in the sense that the Court must reach the constitutional question of whether a state can invoke the Mine Workers issue as a bar to entertaining First Amendment defenses.

The Court can reach the Mine Workers issue but it doesn’t have to as it did not for example in Thomas versus Collins in which under state law, the state courts could have and did pass upon the validity of the injunction in the action for contempt.

And that, Mr. Justice Fortas, is the difference between our position and the Government’s.

The Government argues Mine Workers exclusively and we come here sensitive to a concern that the Court may think it inappropriate to decide a constitutional question of such great importance if that question is not inescapable.

And therefore, the major thrust of our argument is to demonstrate that that maybe done while the Court can reverse without reaching Mine Workers we submit however it cannot affirm without reaching it.

And I should like to mention several grounds on which the Court may reverse without reaching the Mine Workers issue.

Now the Alabama State Supreme Court gave what purported to be an adequate state ground for affirmance.

But we submit that heretofore; state law did not embody Mine Workers.

The Alabama State Courts gave its reason for refusal to review the judgment of contempt as two things.

One, the court below was a court of equity.

And two, they would service upon the parties.

However in no case heretofore has Alabama law embodied this as the sole grounds in reviewing a judgment of contempt.

For example, in Fields against City of Fairfield, as I tried to point out yesterday, there was at issue almost precisely the issues that are here in this case.

There was the question of the validity of a permit ordinance which was alleged to give discretion far too broad and vague to administrators.

There was the validity of the injunction embodying that ordinance.

The petitioners in that case went to the State Supreme Court, and the State Supreme Court examined the injunction on a number of grounds.

Disjunctively, it looked that jurisdiction and whether the order was void.

In determining whether the order was void, the State Supreme Court examined the permit ordinance and examined the injunction.

And then it said that they — the permit ordinance and the injunction are valid and it proceeded to affirm.

This Court then reversed it on other grounds.

In our case, they did not examine whether the order was void in the same sense that they did examine whether it was void in the Fields case.

And we submit that Alabama law having heretofore quite clearly embodied that type of review, we were entitled to that kind of view in the State Supreme Court and consequently, there was not an adequate state ground for refusal to review.

Now the Fields case is not a mutation or a sport in Alabama Law.

Alabama courts have consistently gone beyond the two narrow grounds that they’ve given in our case.

Jack Greenberg:

In a case involving indeed another party to this case, Commissioner Connor, In re Connor which is cited in our brief of the Alabama courts looked at whether or not the injunctive order was too vague.

And they stated that that would be an adequate ground for reviewing the validity of the injunction in a contempt action.

And in a very early Alabama case also set forth and discussed at some length in our brief the Alabama — Merrill — Board of Review versus Merrill, the Alabama courts looked at whether or not the court of equity had jurisdiction in the sense that they were proper substantive allegations in the complaint of fraud, corruption, and bad faith dealing with the Board of Review — Board of Revenue.

And it said there was no jurisdiction in a review of the contempt action.

There was no jurisdiction issue, the injunction and consequently have reversed.

Now this, we submit, is something that the Alabama courts could have done here under settled Alabama law.

And therefore this ground is available to this Court because as this Court has done in Thomas versus Collins, and Da — Donovan versus Dallas, and other cases in which it has reviewed the validity of the injunction and the contempt action if that ground was available in state law that should have been available to us here.

Now —

Byron R. White:

They did apply the Mine Workers rule in this case.

Jack Greenberg:

They did apply the Mine Workers rule —

Byron R. White:

Instead — it was Alabama law in this case?

Jack Greenberg:

That’s right.

And significantly, they cited no Alabama case.

They cited Mine Workers for the first time but I would — we suggest that on this Court —

Byron R. White:

I suppose free as — a state is free to change its policy, to change its rule of law.

Jack Greenberg:

Well but the question of whether or not, the federal question is properly here, I think it’s a question properly for this Court as in — let us say in NAACP versus Alabama.

One might have said that the state could have changed its law as of that point but these Courts had petitioners who were entitled to rely upon the preexisting law in raising the federal question.

And indeed we did in the trial court and the trial court did pass upon the validity of the injunction.

Byron R. White:

Because they were entitled to raise it in the — in this Court to raise the federal question but here the State Supreme Court has already said that this is the rule of Alabama.

Jack Greenberg:

Well, but we would submit — I believe Mr. Justice White that in numerous cases in this Court that when a procedural rule is changed for the first time as a bar to raising a federal question this Court does not consider it a bar to review of that question here.

There was the — the petitioners had good reasons to believe that they could’ve raised that question and presented that issue in the Alabama courts and indeed the trial court to some extent gave it — its holding was perhaps an alternative ground.

They did pass upon the validity of injunction.

They cited Cox against New Hampshire saying, this ordinance is okay.

See Cox against New Hampshire.

And the Alabama State Supreme Court did nothing and say we’ve got a court of equity and we serve the parties and that’s the end of it.

Now we submit that we are not therefore barred from bringing this question here via that route.

Now we would like to suggest another —

Abe Fortas:

Don’t you have to say a little more Mr. Greenberg, perhaps some more?

You have to say that the petitioners here cannot be held accountable for the violation of an injunction on the basis of Mine Workers if their action viewed in light of the law prior to the law in this case was justified — arguably justified because of Alabama law.

Jack Greenberg:

Yes, Mr. Justice Fortas, I think that we have said that.One of our problems is that there’s so many things to say in this case.

Jack Greenberg:

It’s impossible to say them all at once.

But clearly, we would submit that it does not take very much argument in this Court to establish that we did have here an unconstitutional ordinance.

And it was embodied in an injunction which was perhaps more unconstitutional than the ordinance if that were possible.

And peti —

Unconstitutional — I mean unconstitutional on its face or —

Jack Greenberg:

Unconstitutional on its face.

Unquestionably, ordinances which are embody some of this very same standard, general welfare and so forth have been held unconstitution, stab the backs in many other case.

(Inaudible) excluded on another ground that (Inaudible) that the ordinance was — if valid on the face or at least not on — constitutional on its face but discriminatory (Inaudible).

Jack Greenberg:

That’s true.

And that brings us to another ground while we submit the Court need not reach the Mine Workers question in this case.

Though if the Court were to reach the Mine Workers question, we would submit that the Court ought to there — go directly to the merits.

But we’re aware of many decisions of this Court in which this is something that the Court does — not likely and we’re trying to in argument offer to the Court certain considerations why it doesn’t have to go.

If it did, we would say the Court ought to reverse.

And we were precluded from making a record which would demonstrate just what remitting us to Bull Connor would mean.

And we would say that before the Court should make a decision on a question like that of rather far reaching constitutional importance to what extent can a first — can First Amendment rights be frustrated by the issuance of an injunction.

We would say that the Court ought to understand the full implications of doing something like that.

Constitutional decisions frequently avoid a non — if the record is not complete, their case — it say then, if the case comes up in a demurrer and so forth and we here would have wanted too and try to make a complete record showing just what an injunction meant which embodies an ordinance which says, “Go work it out with Bull Connor”, and we will prevent it from doing that.

And we would submit that as an additional ground why the Court — on which the Court may decide this case without reaching Mine Workers.

The Court would have a full record before it.

But if it does reach Mine Workers, we would submit that it ought to go to the merits and reverse.

I have a minute left, I would like to, if the Court please, reserve it for rebuttal.

Earl Warren:

You may.

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

Our argument begins with the premise that the Court will reach the Mine Workers issue here.

In saying that I don’t mean to disparage in any way the argument which has been made that there is a threshold question whether Alabama courts had tried to this case, applied the Mine Workers’ doctrine and therefore whether they may bar the petitioners from arguing the validity of the injunction here because for the first time, they did invoke that doctrine.

There is it seems to us a strong argument to that effect.

We have not reached that point.

We have noted it in our brief.

We leave that argument to the petitioners and we argue only the question most interesting to the United States that most far reaching which is the application of the Mine Workers’ rule in this sort of context on the assumption that it is a question likely to be reached by the Court.

Potter Stewart:

It is a question like what?

Louis F. Claiborne:

Likely to be reached by the Court as we view it.

Potter Stewart:

Okay.

Louis F. Claiborne:

Now without meaning in the least to quarrel with but a question, the Mine Workers doctrine properly applied in circumstances which clearly called for its application.

We do think it’s important to point out at the outset what a remarkable extraordinary rule it is in some respects.

It does allow the imposition of criminal penalties for the violation of a Court order which by definition is contrary to law or contrary to constitution.

Now that’s a principle rather unique in our law.

It does not apply to the commands of the legislature or of the commands of the executive officers.

A policeman tells someone to remain or to move on and that order is improper or unconstitutional.

This Court has repeatedly held that there can be no penalty for violating it.

Likewise, there can be no penalty through violating a void statutory law nor can there be any penalty for violating the order of a legislative committee when it directs a witness to answer and he has a constitutional privilege to refuse to do so.

Now in saying all that, we’re not as they say trying to disparage the rule, we’re trying to find the reason which is special to court decrees which justifies to somewhat harsh absolute principle that the Mine Workers doctrine embodies.

Now why should there be such a special rule applicable only to court orders?

It seems to us that there can only be two reasons.

The first is that judicial orders oriented in a particular case directed against the particular defendant they can find as to time and place and in this respect, they’re different from general laws or general executive regulations.

For the same reason, they’re less likely to be vulnerable to such defenses as inapplicability are overbreadth.

Demanding obedience to court orders is less likely to cause widespread injury than blind obedience to more generalized laws.

But even that rational doesn’t carry us all the way because there is the same specificity in a policeman’s specific directive to a suspect to stop.

And there is the same specificity in the order of a legislative committee to witness to answer a particular question.

So there must be another reason why court orders are especially immune.

It seems to us that that reason is that in our system, courts are the final authority with respect to litigable issues to concrete controversy.

The considered judgments of Courts must be respected since they are the final authority unless we’re to altogether abandon the rule of law.

And because of the way the judicial process works, because Courts need time to decide cases, there are temporary stay orders to preserve the case, to preserve the status quo must also be respected.

Now, applying those rationales to this case, it seems to us that in important respects, they don’t fit.

This is not a case like the Shipp case for instance in which this Court had issued a stay order pending an appeal here in a capital conviction from a state court.

This Court, in order to give itself time to decide whether it had jurisdiction of the appeal, stay the execution of the defendant who had been convicted and not withstanding that order, the prisoner was lynched allegedly as it was ultimately found with the connivance of his custodian, the local sheriff.

That action wholly mooted the case and prevented the judicial process from working.

Here it seems to us we have rather the reverse of that situation.

The issuance of the injunction, if it must be obeyed, mooted the legal controversy.

Because for all practical purposes, this parade, this march or these marches, could not be postponed indefinitely.

Louis F. Claiborne:

Their timing was important in the context of Birmingham in 1963.

It could not — this protest could not serve its purpose several months or several years later when this injunction was ultimately vacated on appeal perhaps even in this Court.

Potter Stewart:

Mr. Claiborne, I followed your argument, I wanted to see to what ultimately it is directed.

The Mine Workers rule was a rule in the federal courts basically, isn’t it?

Louis F. Claiborne:

Yes Your Honor.

Potter Stewart:

There is no requirement.

There — there’s nothing constitutional about it, I suppose.

There’s not requirement that every state follow the Mine Workers rule.

Has it —

Louis F. Claiborne:

Exactly, no.

I think this Court has I think —

Potter Stewart:

Indicated really not follow that.

Louis F. Claiborne:

In the Donnovan Case, they may not lose and in Thomas versus Collins, Texas badly did not follow that.

Potter Stewart:

Right.

And here, Alabama has followed it in this case?

Louis F. Claiborne:

Correct.

Potter Stewart:

We agree on that.

And you’re claim now is that the Alabama, there — there’s a constitutional compulsion upon Alabama not to follow it or is it your claim that, well, alright Alabama could’ve followed it to satisfy themselves but that’s an inadequate state ground, which is your argument or neither?

Louis F. Claiborne:

Our argument is the first, Mr. Justice Stewart, that the Due Process Clause in the case of the state bars a state from applying the Mine Workers doctrine —

Potter Stewart:

Prohibits the State (Voice Overlap) —

Louis F. Claiborne:

Prohibits the State —

Potter Stewart:

The constitution prohibits the state in this kind — in this kind of a case — in this case from following the Mine Workers rule.

Is that your argument?

Louis F. Claiborne:

Yes, especially in light of the First Amendment rights which are affected on the other side.

Potter Stewart:

It’s not your argument then simply that this is an inadequate state ground?

Louis F. Claiborne:

Well, I would suppose that the —

Potter Stewart:

Or is that another way of putting the same thing?

Louis F. Claiborne:

The inadequacy of the state ground would have to turn on its unconstitutionality.

Potter Stewart:

No, not necessarily of course, often a state ground is inadequate even though it’s — even though it — it’s maybe partly constitutional.

Louis F. Claiborne:

Well, we wouldn’t argue here that this was a mere procedural rule that had no rational and no basis of — so as to prevent the usual defense.

Louis F. Claiborne:

I think we do rest on the rationale of the Green case as I understand it, In re Green in this Court in which as I read the opinion, the Court held that the Fourteenth Amendment prohibits the state from denying the defense of invalidity with respect to an injunction issued by a Court in an area which was preempted by federal legislation.

Here, we would say in one part of our argument that in — something of the same sense the area was preempted by the First Amendment.

And that the Court, state court here, in issuing the sort of broad, overbroad injunction citing First Amendment rights was acting unconstitutionally beyond its jurisdiction in an area preempted by the constitution, by the First Amendment.

Byron R. White:

What about your claim, what about the rule, a statement — a rule that a state applies in some case that that this doesn’t apply in other cases?

It’s a sort of what — sometime thing — sort of a discretionary rule.

Sometimes they do and sometimes they don’t.

Louis F. Claiborne:

It does seem to me Mr. —

Byron R. White:

Is that an adequate state ground?

Louis F. Claiborne:

I would —

Byron R. White:

It may not be, I suppose.

Louis F. Claiborne:

I would say that when the consequences of such a rule are so serious as they are here that is to bar the expected ability to defend on the ground of the invalidity of the injunction.

If we assume that Alabama had for the most part in the past, allowed in a contempt proceeding, in a criminal contempt proceeding, the defendant to defend on the ground that the injunction was improper that expectation cannot be defeated by the invention of a new rule which has such a drastic effect.

And it seems to me that is the holding of this Court in NAACP versus Alabama.

Byron R. White:

Well, I think that you don’t go — since you argued the constitutionality to feel you must argue it.

And if you don’t stop short on the —

Louis F. Claiborne:

Well, as I said at the beginning Mr. Justice White I don’t mean to denigrate in anyway the argument that this is the first time Alabama has applied this rule and that therefore, it’s an inadequate state ground here.

I do begin on the premise however that there is some question about that and that the Court may have to reach the Mine Workers doctrine that that is the question which concerns most directly the United States.

It’s reason for participating in this case.

And therefore, I’m limiting my argument to it without really taking any position as to whether the Court must reach it.

William J. Brennan, Jr.:

Did I understand you Mr. Claiborne say having reached it?

That a — the rational agreement which was that because Congress had enacted legislation in this area there was no jurisdiction in the state court to issue the injunction allegedly there violated.

That similarly here, not because there’s any legislation but because of the First Amendment that this is an area in which if the ordinance violates this amendment principles, there is no jurisdiction in the state court to issue this injunction enjoining violation of the ordinance.

Is that it?

Louis F. Claiborne:

I think that is the analysis I was suggesting Mr. Justice Brennan.

I might explain a little bit.

Potter Stewart:

Now, — excuse me, is your argument then — is it confined to the First Amendment or is — would this — would your argument be the same that any provision of the constitution deprive the state court of jurisdiction to issue the injunction?

And if not, why not?

In other words, why or how can it — what should there be confined to the First Amendment —

William J. Brennan, Jr.:

Well I — I do —

Potter Stewart:

— if it is?

Louis F. Claiborne:

I do accept those rulings of this Court which shall view the First Amendment as more absolutely preempting from state courts that — for that matter from federal courts’ power to interfere in the First Amendment area then it’s true with respect to other constitutional guarantees.

I don’t see the necessity for reaching the question whether the same principle would apply elsewhere.

Potter Stewart:

Well likely, it’s certainly perhaps not in this case but when we just — when we think of an argument, and we decide a case, it’s certainly not a better part of (Inaudible) or its just think how far it does reach, isn’t it?

Louis F. Claiborne:

I think the recent argument Mr. Justice Stewart that a serious jurisdic — serious constitutional inhibition on state action, court action or whether under the First Amendment or in the other would deprive that Court of jurisdiction to act and that therefore the same argument would apply.

Potter Stewart:

I’m thinking for example about that somebody relying on the Ninth Amendment or the Tenth Amendment.

And if you’re thinking he can disobey his choice and his discretion on an injunction of a federal court because he reaches a conclusion that the federal court is absolutely without jurisdiction to order and to do something because of the Ninth Amendment or the Tenth Amendment.

Louis F. Claiborne:

Well Mr. Justice —

Potter Stewart:

He could make exactly the same argument, couldn’t he?

Louis F. Claiborne:

Well, I think something does depend, Mr. Justice Stewart, on the specificity of the constitutional protection on the clarity with which one can say in advance that the Court is acting beyond its power.

And when we’re dealing in the area of the Ninth or the Tenth Amendment that becomes far more difficult and debatable and therefore the — perhaps the duty to obey should be the greater.

I think the Mine Workers case itself, the case Mr. Justice Franklin’s opinion indicates that if this were a case plainly governed by the Norris-LaGuardia Act, then of course, disobedience could not be punished.

When the area is so clearly withdrawn, I think that was the rational of the Green case that the National Labor Relations Act had very plainly withdrawn from the state court’s old power in this area.

And that can never be true in the area of the Ninth and Tenth Amendment.

Potter Stewart:

That’s certainly not right, isn’t it?

Is it — it could many times be very clearly true in the area of the Ninth and Tenth Amendment?

What if the federal court had enjoined the person from getting a divorce under the state laws?

Louis F. Claiborne:

Oh, I would —

Potter Stewart:

That would clearly be a violation of the Ninth and Tenth Amendment of the — because that’s clearly a manner for the jurisdiction of state courts, isn’t it?

Louis F. Claiborne:

Well, I should suppose that that in general —

Potter Stewart:

But you decide any full faith in credit competition.

Louis F. Claiborne:

That injunction could be disobeyed with impunity —

Potter Stewart:

Do you think —

Louis F. Claiborne:

I could — I would, yes.

Abe Fortas:

Oh, really.

All you’re talking about though is not whether the injunction can be disobeyed with impunity but whether the person who disobeys the injunction has the right to have his claim that the injunction was void examined by the Court, isn’t that right?

Louis F. Claiborne:

Exactly, so —

Abe Fortas:

In other words there are two questions, two hurdles that he as to get over.

One is the United Mine Workers case, but the United Mine Workers case is nothing more than — if he gets over that that’s nothing more than a ticket to get in the Court and to — and try to establish that the injunction is void, is that right?

Louis F. Claiborne:

That is so Mr. Justice Fortas.

However, it maybe that in order to get over the hurdle, one must prove that the injunction is plainly invalid and in Mr. Justice Stewart’s case, I took that to be the case and therefore answer the question as it is.

Louis F. Claiborne:

But certainly, analytically, one first decides whether the defense is available and then tries out the — whether the defense is —

William J. Brennan, Jr.:

Well, for example, a good (Voice Overlap) — suppose what had happened here was this that the application was made for the injunction.

And the petitioners here had gone to the trial court and said, “Now, we want to be heard on the question of the validity under the federal constitution of this ordinance.”

And the trial judge said, “I think that’s right.

I think you ought to have an opportunity and we’ll schedule a full hearing on that for next week if you can bring in all your witnesses, we’ll hear oral argument and otherwise — but meanwhile, I don’t think you should demonstrate and I’m issuing a restraining order, TRO and come back here next week, we’ll have a full hearing.”

Would you still be making — the Government still be making the argument to this?

And then he defend, the trial judge concluded after the full hearing in and everything else that no, he doesn’t find any merit in the constitutional arguments, and he sustains the validity of order.

Louis F. Claiborne:

Well, that would be a somewhat different case, Mr. Justice Brennan because here, there was no scheduling of a hearing on the merit.

William J. Brennan, Jr.:

No, no, no but if — as I understood what you said earlier, the ordinance if unconstitutional establishes a jurisdictional defect in any power of the trial judge to issue an injunction order enforcing that ordinance.

Louis F. Claiborne:

I recognized that, Mr. Justice Brennan.

I think there is a strong argument that even in the situation you posed because it is an unconstitutional prior restraint on the exercise of First Amendment rights which is with exceptions not relevant here are wholly improper at least when we’re dealing with an injunction of this breadth which has no escape now that it prohibits parades of — at any time, at any place in the city for the indefinite future.

William J. Brennan, Jr.:

Now incidentally what actually happened here, the application as I recall that the — the permit — a permit was refused by Commissioner Connor then the application was made or was there any kind of hearing before the trial judge, before the interim restraint issue?

Louis F. Claiborne:

No, there was not.

It was issued ex parte, nine o’clock at night upon the application of the city.

So far as appears the application was made.

The judge ordered the injunction to issue, the clerk did issue it all in space of minutes of course appears without any hearing and notice so the injunction was then (Voice Overlap) —

William J. Brennan, Jr.:

Well, when was the hearing at which Mr. Greenberg said the effort was made to offer proofs (Voice Overlap) —

Louis F. Claiborne:

That was the contempt hearing.

William J. Brennan, Jr.:

That was at the contempt hearing.

Louis F. Claiborne:

Contempt hearing.

That —

William J. Brennan, Jr.:

There never was an — (Voice Overlap) —

Louis F. Claiborne:

There never was a hearing — a motion to dissolve was — to dissolve the injunction was filed although after the parades involved here the day after, the Monday, the last parade here is the Easter Sunday parade.

And the petitioner did ask that that motion be taken up first rather than the contempt citation which was filed later that day.The judge reversed the order of the questions, never reached the question of the solution and filed the petitioners in contempt.

William J. Brennan, Jr.:

And is that motion still pending, the motion to dissolve?

Louis F. Claiborne:

So far as we’re able to determine, it is technically still pending though —

William J. Brennan, Jr.:

Was there any — ever request for a hearing on that?

Louis F. Claiborne:

(Inaudible) excuse me sir.

William J. Brennan, Jr.:

Was there ever a request for hearing?

Louis F. Claiborne:

On that motion?

Louis F. Claiborne:

There was on the day when the — in facts, when the motion was filed, it was set for a hearing a week hence.

William J. Brennan, Jr.:

That is the motion to dissolve?

Louis F. Claiborne:

The motion to dissolve.

On the day — oh, that same day, later that same day, this was Monday, the April of —

William J. Brennan, Jr.:

This Monday after the parade?

Louis F. Claiborne:

Monday after the parade.

William J. Brennan, Jr.:

Monday after his case.

Louis F. Claiborne:

A citation for contempt is — or a motion to add the — petitioners held in contempt is filed in that city and it was set for the same day a week hence.

When that day came, the petitioner is asked for a hearing on their motion to dissolve since it had been (Inaudible).

William J. Brennan, Jr.:

Yes.

Louis F. Claiborne:

The city objected it and the Court shows to consider the contempt first and never reach the motion to dissolve —

William J. Brennan, Jr.:

Well —

Louis F. Claiborne:

— and never yet reached it.

William J. Brennan, Jr.:

Well, why not?

Louis F. Claiborne:

Under — applying the Mine Workers rule that the question became moot.

William J. Brennan, Jr.:

Well, I know but they still might want to parade soon after, afterwards.

Byron R. White:

Is it — the motion is still in effect?

Louis F. Claiborne:

So far as we’re able to determine under Alabama law the injunction is still there.

Byron R. White:

Do you mean, you mean there’s no time limit on TROs and — in Alabama?

Louis F. Claiborne:

There is none.

No.

As we understand the local law —

Byron R. White:

Who’s responsible for then — whose responsible then for calling up more hearings on the permanent injunction, on the validity of the ordinance?

Louis F. Claiborne:

I frankly don’t know, Mr. Justice White.

I would guess that it maybe the burden of the petitioners, if they want that TRO dissolved that is if the city still views it has in effect then have no indication one way or the other on that.

But I suppose that they are free to come into Court at anytime that have been for sometime in ask for its — for the dissolution of that TRO or for that matter to appeal it, to (Voice Overlap) —

Byron R. White:

Here right on the tip of your tongue that the cases in this Court which you — in which you think show that the kind of grades that were held here protected by the First Amendment?

Louis F. Claiborne:

But Mr. Justice White, I don’t go to the facts of this case since — and I don’t think it’s my burden to show that the kind of parade actually held was protected.

I don’t mean to question that one way or the other.

But I do think there are cases in this Court which hold that the injunction which was any parade that held or any other at any time, in any part of the city, under any circumstances for any purpose, that the cases which are so hold or cited in the footnote in the Cox case, now that — one aspect to the invalidity of this injunction, it’s overbreadth, its failure to provide any sort of temporizing escape though.

Byron R. White:

Does it indicates — does it indicate that the overbreadth issue maybe raised in a contempt hearing like it may in a — on the merits?

Louis F. Claiborne:

No sir, I don’t think this issue has ever come before this Court in the First Amendment context.

Potter Stewart:

The difficulty here is that the ordinance provides that a permit on application maybe issued by the Commission and there was never any application to the Commission or a permit in this case so you don’t know how broad or narrow it was in practice.

It never applied to the Commission although they were told to by the language of the ordinance and they were told to specifically by telegram.

Louis F. Claiborne:

Well, it so — as I was about to suggest to Mr. Justice White, the — it seems to us that the other defect and the more, perhaps the clearer defect in both the ordinance and the injunction which does nothing more than repeat the ordinance with no narrowing whatever is precisely the permit or aspect of it.

It allows the city, its Commission to withhold the permit on a series of grounds which amount to absolute unconfined discretion in the city to grant or withhold the permit.

Potter Stewart:

But the Commission has never withheld a permit from these people because they never applied to the Commission.

Louis F. Claiborne:

But the rule in this Court, Mr. Justice Stewart as I understand it ever since Thornhill and Alabama and then repeated only two times ago in Cox and Louisiana, is that even one who might have fully asking obtained such a permit has standing to challenge this censorship procedure of the municipality.

That whether that applies to parades, or to meetings, or to speech, the Court has applied it in all of those instances.

In Cox of course it was exactly the sort of demonstration and —

Potter Stewart:

But the — let’s assume it is censorship which is that fairly large step.

Doesn’t the issue to that Chicago case that cut the other way?

The Chicago Moving Picture case, I cant think of other.

Louis F. Claiborne:

Well —

Potter Stewart:

Time still?

Louis F. Claiborne:

This Court has recognized that in — with special safeguards, there maybe some licensing, some censorship in the movie area, but has been very cautious it seems to me to confine that exception both narrowly to that area and to insist in subsequent cases that there’d be as many safeguards as possible and that there not be any greater prior restraint without hearing than is necessary.

Here we’re dealing with the ex parte order and not a considered adjudication after adversary hearing.

And at the same time, we’re not dealing with a state order entered to preserve the status quo because this order leaves nothing open on the merits.

Hugo L. Black:

Would you mind stating what case you referred to when you said this Court withheld that a state is without constitutional power to forbid marching, parades of a large number of people?

Louis F. Claiborne:

I didn’t mean to say that, Mr. Justice Black.

I meant to say that this Court has held that generally and perhaps in somewhat other — somewhat different context that a prior restraint on the exercise of First Amendment rights with the exception of the movie area —

Hugo L. Black:

That’s the —

Louis F. Claiborne:

— is forbidden.

Hugo L. Black:

Well, that’s the First Amendment right there you’re talking about is the right to parade on the streets of a city —

Louis F. Claiborne:

I think it’s —

Hugo L. Black:

— being beyond the constitutional power of the state to control a marching on the city street.

Louis F. Claiborne:

Mr. Justice Black, not beyond the power of a city to control but beyond the power of the city perhaps to forbid all together under all circumstances —

Hugo L. Black:

Now what case held that?

Louis F. Claiborne:

Well, the Cox case amongst —

Hugo L. Black:

The Cox case settled that?

Louis F. Claiborne:

The Cox case most recently indicated that —

Hugo L. Black:

Indicate?

Louis F. Claiborne:

— an absolute ban —

Hugo L. Black:

Did it hold it?

Louis F. Claiborne:

It did not.

No sir.

But it did —

Hugo L. Black:

What case has held?

Louis F. Claiborne:

Well, as I say the — I don’t have them at hand but the Cox’s opinion in suggesting —

Hugo L. Black:

Well, that seems to be the whole basis of this case and I haven’t yet heard a single case pointed here by this Court has held that to be the constitutional rule.

Louis F. Claiborne:

Mr. Justice Black, in this case, we not only have what seems in one sense like a complete prohibition on all parades of any kind whether or not they obstruct traffic —

Hugo L. Black:

What case of this Court has said there cannot be such a law constitutionally?

Louis F. Claiborne:

Well I can only reply Your Honor back to the Cox case and those cited on the footnote.

Hugo L. Black:

Well, does it hold it?

Louis F. Claiborne:

It — the Cox case did not so hold the —

Hugo L. Black:

What case does hold it?

Louis F. Claiborne:

I don’t think any case specifically so holds but the other —

Hugo L. Black:

It never has been held here.

Louis F. Claiborne:

The other flaw here, Mr. Justice Black is that this injunction does track a permit ordinance which allows the city officials to waive this bar on parades whenever they choose in their absolute unconfined discretion.

And there are many cases in this Court which hold that that is constitutionally impermissible.

And that is also involved here.

They had no construction of the statute by the (Inaudible).

Louis F. Claiborne:

Oh, unlike Cox and New Hampshire Mr. Justice Harlan, there is no narrowing construction of the permits requirement which might arguably save it.

(Inaudible)

Louis F. Claiborne:

That is correct but this case dates from April 1963 as does the Shuttlesworth case which was decided in the Alabama Court of Appeal.

And the Alabama Supreme Court has still not decided the question in that criminal case in that Shuttlesworth case.

Potter Stewart:

Well, you filed a motion to dissolve this injunction I supposed that would have been the issue there.

One of the important issues and you never pursued it.

I don’t mean you —

Louis F. Claiborne:

But the —

Potter Stewart:

I mean the —

Louis F. Claiborne:

Well, but that very issue was decided in the Shuttlesworth case.

The Alabama Court of Appeal itself held this ordinance unconstitutional in three respects.

Well, unconstitutionally in two respects inapplicable in the third.

And the Alabama Supreme Court while having granted certiorari review, that decision has not decided it.

That would seem the —

(Inaudible)

Louis F. Claiborne:

— the appropriate place to have it decided.

That’s the (Inaudible) an injunction as to the (Inaudible).

Louis F. Claiborne:

There is an indication to —

(Inaudible)

Louis F. Claiborne:

There is an indication.

Now, I frankly — I’m not such an expert to Alabama law to discuss it but I assume that to be the thing.

Byron R. White:

Mr. Claiborne, I — in you’re brief, you seem to indicate this injunction not only covered parades and gatherings in connection with streets.

But did it cover demonstrations or assemblies of any kind, anywhere.

Now that’s not so, wasn’t it?

Louis F. Claiborne:

It is so, Mr. Justice.

Byron R. White:

Well, is said this — where is the injunction?

Louis F. Claiborne:

The injunction is reproduced on pages four and five of our brief, reply brief.

Byron R. White:

Now let’s assume they had a very large meeting in the park, is that enjoined here?

Louis F. Claiborne:

Well congregating on the street, all public places into mobs, all public places into mobs.

Well, that’s 6th line down on page 5.

Now, we don’t rely on that portion of the injunction because it doesn’t seem to us that that’s directly at issue here.

The violation charged here is a violation of (Voice Overlap) —

Byron R. White:

Well, perhaps if it were true that it covered all — that this sort of thing that would be an example of overbreadth, wasn’t it on which you relied?

Louis F. Claiborne:

It simply would, and we do point to the — of — in if — as we understand that this injunction does two things.

It says first, you shall not violate the ordinance — the permit, parade ordinance of the city, nor shall you do anything else unlawful.

Byron R. White:

Well, if you’re right as to the coverage of the injunction, it’s far broader than the ordinance then and yet you say it really distracts the ordinance.

Louis F. Claiborne:

Its — we feel compelled to that argument because it seems to us that the only violation of the injunction charged here is a violation of that part of the injunction which track the ordinance.

The reason that we charge contempt does not rest on a congregating in the park into mobs.

Byron R. White:

Would you mean you — you mean you — you must testify the — the actual permit parade that you held, that your clients held, or that these people — that the petitioners’ held?

Louis F. Claiborne:

No, no.

I say nothing about the parade itself —

Byron R. White:

You’re really saying just — are you really saying this is invalid because of — it might cover some other kinds of parades?

Louis F. Claiborne:

Yes, but I — I’m treating the injunction as severable into that portion which covers parades and that portion which covers other activities.

I maybe wrong in that.

It maybe proper to treat the injunction as one or too broad in addition on any First Amendment conduct whether it’s picketing or meeting in the park, or —

Byron R. White:

Well, if it’s your — if it’s overbreadth you rely on, I don’t know why you wouldn’t rely on that.

And if you can’t rely on it, I don’t see how you can rely on overbreadth at all.

Louis F. Claiborne:

Well, we — perhaps we should rely on it.

We do point out that it not only tracks the ordinance but it does go far beyond and inhibits also some other action which however is not directly involved in this case.

But primarily we say this is an effort to convert an ordinance, the violation of which could be defended in a trial by a jury on the ground of the invalidity of the injunction just by giving it a judicial form, the defendants have been deprived to both those rights.

And it seems to me that is not what the Mine Workers rule was intended to permit.

Byron R. White:

That the — were the certiorari of — was the petition or the complaint filed?

Was it accompanied with any affidavits?

Louis F. Claiborne:

It was accompanied with two or three — I forgot affidavits by police officials of the city —

Byron R. White:

I take it, they’re in the record.

Louis F. Claiborne:

They are in the record and annexed to the complaint.

Byron R. White:

You would say that the issuance of a temporary injunction was any kind of an adjudication or a construction of the ordinance namely that at least the permit requirement covers the kinds of parades that the petitioners were engaged in.

And that at least these parades required a permit.

Louis F. Claiborne:

I think that could have been done in the injunction Mr. Justice White, but by tracking the language of the ordinance and without attempting to confine it to the sort of parade —

Byron R. White:

I know but it’s the only way (Voice Overlap) —

Louis F. Claiborne:

— that had been held in previous —

Byron R. White:

— the only way you’re inured though is that — is with respect to the parade you wanted to — or that the petitioners want to propose.

And — so it’s solely an overbreadth that you rest, I gather.

Louis F. Claiborne:

Yes, though I think here is — its —

Byron R. White:

The parade is somewhat — body else might want to hold or some other kinds of parades that you might want.

Louis F. Claiborne:

Well, that — it seems to me, Mr. Justice White, that here as in — as is through whole First Amendment cases, this petition is even if their particular conduct might have been reached —

Byron R. White:

I understand that (Voice Overlap) —

Louis F. Claiborne:

— and nevertheless had sending —

Byron R. White:

— except a contempt case here.

You haven’t got a — that’s to me is in a little bit different light.

Louis F. Claiborne:

Yes, I tend to point out that this is a contempt case only because the ordinance was put into judicial language without the —

Byron R. White:

I know but the — but it was suggested by the issuance — the temporary injunction that this particular kind of parade described in the affidavits and whatnot required a permit.

Then you created again.

And there was — then there was a contempt action.

Louis F. Claiborne:

Well, the kind of parade described in the application Mr. Justice White is just nothing very precise.

It ranged from sit-ins to kneel-ins to parades of 50 people, to parades of several hundred people.

And indeed the Alabama Court of Appeal found that a parade of 50 people confined at the sidewalk did not require a permit, whereas the parade, a larger one might.

Now, and here, these petitioners are charged with engaging in two parades, the one on Good Friday is the one that the Alabama Court of Appeal held didn’t require a permit at all.

The one on Easter Sunday being a larger one, probably did require such a permit.

But the background of this case does not enlighten the scope of the injunction very much, I would say.

Earl Warren:

Mr. McBee.

Earl McBee:

Mr. Chief Justice, members of the Court, may it please the Court.

The first suggestion I would like to make is that the doctrine of Alabama that is the principles decided by the Supreme Court of Alabama relating to the Mine Workers doctrine relates back to the very date that this Court decided that case.

In that particular — at that particular time there was then pending in the Alabama courts the case of Hecker, Greenwood versus Hecker, Hecker versus Greenwood, and there was also pending in that at that time the Hotel Restaurant Employees Association versus Greenwood.

In that case, the Hecker had — and others had been convicted of several contempt.

The Supreme Court of Alabama held that since the picketing and the actual strike was no manners for a lawful purpose and was legally conducted, that it did involve First Amendment freedoms of assembly and speech.

And that therefore, the Court, the lower court was erroneous in reading the injunction.

They dissolved the injunction.

They then, using the United Mine Workers case as the background, determined that the several contempt convictions were required to fall.

But however, the closing paragraph of the opinion was that in view of the United Mine Workers case, the right of the Greenwoods or the state to proceed in criminal contempt was not in anyway impaired by that decision.

We have read since the — a matter of the City of Fairfield case has been brought up, we have read that case again.

And we do not find that that case in anyway militates against the doctrine that we have said in our briefs as applied by it.

As a matter of fact, we are more convinced and we would invite the Court to read the case, nor that we might be certain that our construction is not biased but as we read that case, the Court in that case said that they were not going to consider the question of the unconstitutionality of the ordinance in the Fields case.

And that by the way was a pure speech question involving the holding of a meeting.

The requirement of the ordinance was that the — before a meeting could be held in the City of Fairfield, permit from the mayor must be procured.

Fields was holding a meeting, was planned to hold a meeting, he did not procure a permit.A temporary injunction was issued on that ground.

The Court said that they would not go into the question of the ordinance or the validity of the ordinance either on space or otherwise because they couldn’t reach it.

And they took the NAACP case and referred to it.

Earl McBee:

They cited the Mine Workers case.

They cite Howat versus Kansas.

And they concluded that as a general rule they said unconstitutional statute is that — is an absolute nullity.

It may not be the basis of an illegal right or legal proceedings.

But however though, when an injunction has been issued and without taking the normal means of attacking that injunction by a motion to dissolve a discharge, the defendant may not in criminal contempt in — in a con — appeal or certiorari from criminal contempt raise the question of its unconstitutionality and collateral proceedings on appeal, from a judgment of conviction in the contempt case or on that case read as habeas corpus or for certiorari.

Abe Fortas:

Is this the Fields case?

Earl McBee:

This is the Fields case, yes.

Abe Fortas:

In Alabama?

Earl McBee:

Alabama Fields case, yes.

Abe Fortas:

Do you have (Voice Overlap) — do you have the Alabama citation?

Earl McBee:

The Fields case is 143 So. 2d — I have forgotten the page, page 177, 143 So.2d, 143 So.2d, page 147 — 177.

It’s interesting to note that in citing the cases that they relied upon, in support of that doctrine, they cited the case United Mine Workers.

They cited Howat versus Kansas.

They cited the People versus Boshar (ph), an old Supreme Court New York Case in which the case — the Court there said that they would not consider the unconstitutionality of an ordinance or Act, the basis of an injunction as invalidating the ordinance of the injunction or making that erroneous or making void of these.

It would be erroneous upon of course, a proper appeal from a motion made to dissolve or from carrying on the merits of the injunction case.

Potter Stewart:

But now on the Fields Case, the Alabama Supreme Court did rule on the constitutionality of the ordinance, isn’t it?

Earl McBee:

No, sir.

No sir.

They said —

Potter Stewart:

No, it said we cannot say that it is unconstitutional on its face.

Earl McBee:

Yes.

That — they said we cannot say it’s unconstitutional on its face.

And then they proceeded to say that we can’t reach that because of the fact that it is a collateral here — a collateral attack.

Potter Stewart:

Well, they did reach it when they said we cannot say that it is unconstitutional on its face.

Earl McBee:

Well I — I construed —

Potter Stewart:

If that’s not reaching, then what is it doing?

Earl McBee:

I construed that, may it please the Court to mean that they were saying that they did not get to that question because they immediately went into —

Potter Stewart:

The right way of saying it.

Earl McBee:

— the Mine Workers case and they did cite, and rely upon Boshar (ph) and the other cases which say that the unconstitutionality of the Act or ordinance is not — does not render the injunction void.

That’s clearly the People versus Boshar (ph) that the first case after Howat.

Earl McBee:

Now in reference to —

Potter Stewart:

Now is your argument — is your argument that you’re now making Mr. McBee, this, that the application of the Alabama Supreme Court of the Mine Workers rule in the present case was no change (Voice Overlap) —

Earl McBee:

The rules, the rule, that — it has (Inaudible) to it, all the way through.

Potter Stewart:

That’s the thought of your argument.

Earl McBee:

That’s the (Voice Overlap) of our case, yes, that’s right.

Now getting over to the question of the Mine Workers doctrine and its limitations or of any event, the first suggestion has been made that In re Green, militates against that case.

Now as I read In re Green, the fault or the vice of that case was that this lawyer was convicted of criminal contempt that is constructive contempt, without being afford a hearing.

He tried to defend his case but was deprived of that privilege.

As I understand the opinion which was written reasonably by Mr. Justice Douglas, comment was made about the Mine Workers case but the question though, the primitive question was that there was no hearing.

And I believe that Mr. Justice Douglas said that, that that illustrated the device of the whole thing.

That is the preemption doctrine because you couldn’t tell whether it’s in the preemption doctrine involved or not.

In as much as they never did reached that question.

They never did give a chance for the Court to determine that question.

Now, Mr. Justice Harlan I believe in the — in a concurring opinion in that case, did say that he did not feel that that case will take against the Mine Workers doctrine and there I believed conclude that the Mine Workers doctrine holds that even if the federal courts were barred by the acts of Congress from issuing the injunction in that case, that nevertheless, it is the duty of the defendants to abide and perform the injunction at least while it was in effect.

And until it was dissolved or discharged or some other method used to dislodge it and it should be obeyed.

And that failure to do so would constitute criminal contempt.

That we say is — we feel is the holding of that case clearly.

Now, there has been much said about the vagueness of the injunction.

Actually, the injunction does say very specifically that the action above designated I’ve read to in the appellate complaint or the Acts that are related to and are enjoined and specifically referred to.

Among those Acts related to in connection with mass picketing and mass street parades, mass processions or like demonstrations without a permit we have again foresee of the bill of complaint a situation very similar to those that which developed on April 8, 12, and April the 14th, that is to say the Good Friday and the Easter parades.

We say that those particular demonstrations, the forerunner of those particular demonstrations were set forth in the bill of complaint.

Now if there’d be any question about what type of injunction is issued and what it means and what it is required to do, we say that under the authorities, the requirement is that the Court or the Courts in construction refer back to the original bill of complaint and read the injunction in the light of the original complaint.

Hugo L. Black:

Would you mind stating as briefly as you can what actually took place (Voice Overlap) —

Earl McBee:

Yes.

Hugo L. Black:

— of the defendants?

Earl McBee:

Yes sir.

In involving the defendants, exactly what took place, the injunction was issued on the evening of the 10th of April.

On the morning of April the 10th — 11th, it was served upon the defendants.

At that time, they pronounced that they would not abide it, that they would —

Hugo L. Black:

Where did they say that?

Earl McBee:

The first time they said it was at the time the injunction was served upon them.

The second time they said it was when they had a press conference about 11 o’clock or thereabouts on the morning of the 11th of April.

At which time they said, “We will march tomorrow, Saturday, Sunday, Monday, and on.”

Hugo L. Black:

Did it say how many would march?

Earl McBee:

They didn’t specify how many would march.

No, they did not know sir.

But they would march.

Hugo L. Black:

(Inaudible)

Earl McBee:

They had a meeting then on the night of the — on the night of 11th at which time — and by the way too I may add this —

Hugo L. Black:

How many did march?

Earl McBee:

Well, in the Easter march, there were approximately 1500 to 2000 in which the entire streets, the sidewalks, everything was covered from side to side.

On the march which occurred on the 12th of April, they have — most of the time they were on the sidewalks using each sidewalk, but sometimes the street, but in the main, on the sidewalk in the April of — the 12th, Good Friday march.

Hugo L. Black:

Did they claim they have a constitutional right to march with that many people blocking the streets?

Earl McBee:

Only — the only constitutional right they claimed was when they came into Court and said that, “You have violated our constitutional rights.”

When they filed their motion to dissolve the injunction after the act had been committed.

They committed the Good Friday marches and they also — they marched on the 14th of Easter Sunday before ever making any effort at all whatsoever to obtain any sort of relief, obtain —

Hugo L. Black:

Do you say —

Earl McBee:

— any sort of permit and —

Hugo L. Black:

Do you say they marched three days?

Earl McBee:

They marched actually two days, the 12th and the 14th.

Hugo L. Black:

What time of the day?

Earl McBee:

On the 12th, the information they let out, they didn’t give very much information but they’d let out information, they were going to march on at noon.

However, in form of actual fact, they did not march at noon but they really marched about 3 o’clock in the afternoon.

Hugo L. Black:

How many marched?

Earl McBee:

Well, on one side of the street, there were — well, the evidence is over 50 because over 50 were arrested.

But also they did not arrest all because they couldn’t get to all of them.

They were on two sides of the street.

And all together, the evidence is that there were some thousands involved in the entire proceeding, approximately a thousand.

Earl Warren:

Now those are the people who gather.

Those were the people who marched on the 12th who were there, I find in the briefs a statement that there were about 50 persons who marched and who marched on the sidewalk headed by Reverend Martin Luther King, Ralph Abernathy, and Fred L. Shuttlesworth, is that wrong?

Earl McBee:

Yes — well no sir.

Now that — that is only a part.

Now that group, it’s true, did march.

But on the other side of the street, the evidence is and Mr. Painter (ph), while the witness — a witness for the city testified that on the other side of the street, the group outside of the church were also siphoned into and they engaged in a march along with the other marchers.

In other words, this technique of having the crowd and the marches intermingle apparently had been followed in other cases in the (Inaudible) Movement and another situations.

Earl Warren:

Well, I suppose if you had a crowd, they’d have to go home, wouldn’t they?

Was that a march for the crowd — for the crowd went on?

Earl McBee:

They joined in.

They joined in and went with the group.

They were engaged and — heading so they said to the City Hall that’s where their objective was.

And they would let — going in that direction at the time the arrest took place.

Earl Warren:

Where is that in the record, the number of people who were in the march, not the people who had been assembled, who were going home but how many people were in that march?

Earl McBee:

I believe that — that the testimony of Mr. — of Inspector Hailey was that approximately 50 —

Earl Warren:

Where do we find —

Earl McBee:

— or more than 50 at least.

Earl Warren:

Where do we find it in the record?

Earl McBee:

Oh, were in the — it said there were at least 50 because they arrested that many.

Earl Warren:

Well, that’s a lot different from what —

Earl McBee:

That’s 147.

Earl Warren:

That’s a lot different from what you’ve been telling us about the 1500 or so assembled in the (Voice Overlap) —

Earl McBee:

Well now — oh, and may it please Mr. Chief Justice, that is — I didn’t refer to 1500 on that day.

Now that was —

Earl Warren:

Well, how many were there?

Earl McBee:

That was on —

Earl Warren:

How many were there, Justice Black asked you?

How many — why can’t you tell us this as the record shows, that’s all we’re asking you.

Earl McBee:

It depends on upon which particular parade you’re discussing.

Now the Good Friday parade, the testimony of Mr. Hailey — the Inspector Hailey was that 51, at least 51 were in that parade because that many were arrested.

Earl Warren:

Alright.

Earl McBee:

But they didn’t arrest them all.

Earl McBee:

Now on the Good Friday parade —

Earl Warren:

Where were they — where were those 50 walking, were they in the street blocking traffic or they walk — were they walking along the —

Earl McBee:

That —

Earl Warren:

— the sidewalk?

Earl McBee:

The 50 basically were on the sidewalk.

And I believe the others were on the sidewalks too.

Yes.

That they were on the other side of the street.

Earl Warren:

Right.

Has your Supreme Court ever determined whether it is a violation of this ordinance to walk along the sidewalk?

Earl McBee:

No sir, the Shuttlesworth case which the Court of Appeals had ruled upon is now before the Supreme Court but has not yet ruled.

Earl Warren:

They haven’t ruled whether it applies —

Earl McBee:

No sir, they haven’t ruled it.

Earl Warren:

— to sidewalks or street?

Earl McBee:

No sir.

That have not.

That’s correct.

Yes sir.

Earl Warren:

But your — then your statement is reduced to this that on this occasion there are approximately 50.

You say not —

Earl McBee:

I’m not —

Earl Warren:

— less than 50 (Voice Overlap) —

Earl McBee:

Not less than 50 because they arrested that many, yes sir.

Earl Warren:

Alright.

Well, is there any evidence or is there any great number more than that (Voice Overlap)?

Earl McBee:

Not on that side of the street, I believe.

No sir.

I don’t know.

Earl Warren:

Well, was there any that — there is a great number of marching on the other side of the street?

Earl McBee:

Yes, the —

Earl Warren:

Where it took in the record.

Earl McBee:

— the testimony of Mr. Painter (ph), he is that —

Earl Warren:

Where is it in the records, please?

Earl McBee:

He said that the crowd on the —

Earl Warren:

Where is that in the record?

Earl McBee:

That’s on page 207.

He said the crowd and the procession could be described as one.

He said the entire crowd was about a thousand, 800 to a thousand.

Earl Warren:

Now wait a minute.

Earl McBee:

Oh, several hundred —

Earl Warren:

What —

Earl McBee:

— I believe he said.

Earl Warren:

What was the question that prompted that answer?

Earl McBee:

At page 207 of the record, is where the particular matter was discussed.

Now, down there, the middle of the page I believe, this group was led by Reverend Martin Luther King Jr., Reverend Ralph Abernathy, and Reverend Shuttlesworth as I recall.

There were several people falling in formation.

There are several people who were falling in this formation.

As the group marched away from the church in the direction of downtown, a group of persons who had assembled along the sidewalk and the street followed this procession, this group of people who consist of several hundred.

This group on the march is actually the whole procession was going as a group.

As the group came out the church, then the whole groups of people who had assembled along the sidewalk fell along behind them.

And I think you could describe it as one procession.

Earl Warren:

Very well.

Earl McBee:

Now, actually the march, the 14th proceeding involved and there are some pictures at pages 210 I believe of the record in which it is apparent that they were taking in the entire sidewalk of both sides and also the street.

It was a procession of some — variously estimated from a thousand to 1500 to 2000 people involved.

I don’t see it at 210.

Do you have another number?

Earl McBee:

Not, not 210 — 410, Your Honor.

410?

Earl McBee:

Yes —

Potter Stewart:

The only pictures are right at the back of the record.

Earl McBee:

In the back, yes it’s in the back, yes.

The first picture there indicates the march of — as it — that day of the march — the origin of the march was not the church shown in the picture but it was a block and a half or two blocks below that, the march began.

Hugo L. Black:

Is there any evidence here as to what statements were made by the leaders as to claim that they had a right to march as they were marching that the constitution of the United States gave them that right to march whether the city permitted it or not?

Earl McBee:

No sir, unless you might say that it was done by the lawyers after they file their motion to dissolve after the marches took place but not perhaps the marches.

Hugo L. Black:

Not what?

Earl McBee:

Not prior to the marches, no sir.

They made no such contention, at least that I’m aware of, that appears in the record anyway.

That was this march that that developed into a rather violent and belligerent mob.

And as a matter of fact, the same thing is true of the march of April the 12th, and the same thing is true of the prior march which is described in the bill of complaint.

The crowd became unruly.

It became violent.

Some people were injured.

One person at least was injured.

A police officer was narrowly missed by a large brick.

Some — damage to some city property occurred and that a three-wheeler was damaged, the radio and I believe the windshield and some other things possibly.

And there were some — a number of people arrested for resisting arrest.

There were a number arrested for assault and battery in connection to the throwing of rocks, and so on.

These crowds were solicited I think I should add.

Earl Warren:

Was there any showing who threw the rocks whether the people in the parade or somebody who has objected to the parade?

Earl McBee:

Mr. Chief Justice, it was impossible to tell because the whole thing degenerated into a mob.

Those who were in the parade and everybody else generate into a mob, you couldn’t tell.

No way to tell.

But we do say this that the defendants in this case that is the petitioners in this case apparently took responsibility because during the course of the afternoon, according to the testimony of the witness, Painter (ph), the respondent Wyatt Tee Walker, told him that he could control that —

Hugo L. Black:

Told whom?

Earl McBee:

It is respondent Wyatt Tee Walker.

Hugo L. Black:

Told who?

Earl McBee:

Told a witness Painter (ph, who was the witness for the city that it was entirely possible for him and he could as a matter of fact guarantee that no one would get out of control.

That he could control this crowd of people without any problem at all.

He would guarantee.

The officer raised the question that — engaged him getting that many people together involved in a demonstration would pose some problems of possible balance and possible danger to people or to property.

Earl McBee:

And at that time, Mr. Reverend Walker stated that he could control the crowd.

And then he said if anybody got hurt, it would be due to the officers and nobody else.

Hugo L. Black:

Due to what?

Earl McBee:

Due to the officers doing it and not these people.

He could control them.

Now the evidence is that they did con — they did assemble outside.

And I believe the witness, Hays (ph) who as a witness for the peti — that is the respondents and who was one — who is one of the respondents.

As a matter of fact, one of the petitioners here testified that he went down to the church for the purpose of demonstrating.

And also — a Mr. Shorz (ph) in examining some of the witness testified that or rather examined the witnesses ref — with reference to a parade or a procession.

Now the ordinance involved — now, the question has been raised whether or not the owners involved — involves anything other than streets, parades or street — use of the sidewalks.

But in — a matter of fact, the ordinance does involve mass street parades, processions, or like demonstrations without a permit, nor was — it does involve parades and processions and things of that kind which conducted mass and which of course, whether the type of situation that was —

Hugo L. Black:

Parades where?

Earl McBee:

I beg your pardon, Your Honor?

Hugo L. Black:

Parades where?

You said the ordinance (Inaudible).

Earl McBee:

The ordinance does pro — and does prohibit engaging in sponsoring and citing on — or rather of mass street parades, processions, or like demonstrations without a permit —

Hugo L. Black:

What permit (Voice Overlap) —

Earl McBee:

As on public streets.

Hugo L. Black:

On the public streets?

Earl McBee:

Yes sir, yes, that’s right.

Potter Stewart:

It says on the streets or other public way of the city.

Earl McBee:

Public ways, well that’s right.

Public ways (Voice Overlap) —

Potter Stewart:

Way, it says.

Earl McBee:

Way.

Hugo L. Black:

Did it try to prohibit parades on the property controlled by the paraders?

Earl McBee:

No sir.

We made no effort to do that.

Never has to be con — been construed.

Byron R. White:

Are these photographs pictures of the Easter parade or some other parade?

Earl McBee:

Those are the Easter parade, yes sir.

They were —

Byron R. White:

These four?

Earl McBee:

Those four.

And they were taken by the way by a United Press photographer.

Byron R. White:

Were they — were they — were these — are these — were these introduced in the contempt hearing?

Earl McBee:

Yes sir.

Yes sir, they were —

Byron R. White:

And that they’re defined.

Earl McBee:

They were in the contempt case and they were introduced, and are filed in the record in this case.

William J. Brennan, Jr.:

That the exhibit introduced whom by — who was the complainant in your case?

Earl McBee:

The exhibit was introduced by the city —

William J. Brennan, Jr.:

Yes.

Earl McBee:

Yes sir.

(Inaudible).

I might say it was a nasty thing that those exhibits will go to Court by the respondents but we introduced them in evidence though.

Now we simply say, may it please the Court that we don’t — we have more than a First Amendment freedom case.

We say in the first place that it would be a travesty to have a situation where a group of people who start out for the purpose, obvious purpose, of getting put in jail during the various meetings that were held from time to time by this group on the evenings of the 11th, and the 12th, and the 13th, they were constantly recruiting people to go to jail.

Even in one instance on Friday night I believe, Reverend Walker, Wyatt Tee Walker recruited a dozen or so Negros willing to die for me.

All of the witnesses —

Hugo L. Black:

What do you mean by that?

Where is that evidence?

Earl McBee:

You mean why did he say that?

Hugo L. Black:

Where is that evidence?

Earl McBee:

Where is that evidence?

Hugo L. Black:

(Inaudible)

Earl McBee:

That was the testimony of Mr. Walter Johnson who is a representative of the United Press or the AAP, I’m not sure, from Mobile.

That testimony is on page — is repeated several times, is on page 203.

During the discussions that occurred on the — at these meetings, among other things, the leaders were upset because they said that Mr. Al Hibbler, who is a blind Negro singer, was discriminated against because he was not arrested.

And they didn’t like it, they say it.

Earl McBee:

In fact, the Reverend Martin Luther King and the Reverend Abernathy had planed to have a march or make their move as they called it, on Thursday.

Mr. Hibbler had gone on Wednesday and they were going on Thursday.

But since Mr. Hibbler had not been arrested, they won’t give him another chance to be arrested, so they sent him out again on Thursday.

And they then, postponed their move as they said until Friday at which time they did make their move and the result was that they get arrested.

During the course of these meetings, Reverend Walker made the statement that he had something that he wanted of the school population.

He said grades one through graduate school.

Among other things, he said that the students, the student population could get a better education in five days in city jail than they could get in five months in the segregated schools.

There was all the way through these proceedings, a very obvious effort to get people arrested.

There was no effort made at all to obtain a permit from the city commission.

And as a matter of fact, we argue with the court below and we think the argument should be repeated here that they didn’t make any request because obviously they didn’t intend — they didn’t want to get a permit.

They wanted to get arrested.

That was the whole procedure.

And they intended to get arrested in order to accomplish whatever purposes they felt were desirable for their ends and their goals to be arrested.

What bearing do you think it was to the school, the Catholic schools (Inaudible) that they wanted to show — this ordinance has been discriminatory as (Inaudible).

What effect does that (Inaudible)?

Earl McBee:

It is our contention that that and the Court so ruled that that was an entirely a collateral issue.

He said that, “If you will come in here, when you move to dissolve the injunction and you will show those facts, then I can do something about it.

But you elected though to violate the injunction.

And as a result of that election, you’ve closed my hands to this matter.”

“This time, I can do it”, he said at the proper time.

“But I can’t do since you elected to violate the injunction defiantly as you did without have — asking me to do something about it,” and so that that would be a collateral attack, directly collateral attack.

We suppose that they include and they’ve been offered in practice, and the ordinance had been applied to the school — the Negro parade and that is the (Inaudible) facts and nevertheless they would have been required to obtain a (Inaudible)?

Earl McBee:

What they contended was, I don’t believe they contended it had been discriminate or — discriminatorily applied so much as what they contended was that there had been no practice in the past to obtain a permit through the city commission.

I believe that was the burden of their argument.

They wanted to — they said to prove that that had not been the practice.

But however though, the ordinance specifically said and as early as April the 5th, Commissioner Connor himself notified the Reverend Shuttlesworth that the proper way by telegram, the proper way to proceed if they want to proceed would be to apply to the city commission.

And the Court said that he would be glad to hear any evidence of anything that happened after the injunction occurred and the matter that were before the Court was involved but he would not and did not feel that he would like to go into collateral issues at this particular time.

Now from the very beginning all the way through the case, and on for the record —

No claim (Inaudible) approved and the issue presented that this ordinance has been discriminatorily applied in the sense that it was (Inaudible)?

Earl McBee:

What they said was that — what they all — what to proof was as I recall, they put the city clerk on the stand I believe and asked him whether or not it had been the custom of the city commission to issue injunctions.

Earl McBee:

I believe that was the tenor of the proof that was extended.

Byron R. White:

Permit.

Earl McBee:

I beg your pardon?

Byron R. White:

You mean permits.

Earl McBee:

Yes sir, permits, I’m sorry.

I used the wrong word.

Yes sir.

That’s correct.

Earl Warren:

Was it — is it the fact that the — theretofore, the — it was the practice of a subordinate police officer to give permission through the commissioner of police.

Earl McBee:

I really honestly couldn’t answer that question, I had —

Earl Warren:

I beg your pardon?

Earl McBee:

I couldn’t answer that question honestly because I had not been with the city at that time but a very short time.

Earl Warren:

Well, (Voice Overlap) —

Earl McBee:

And I was not aware of it.

Earl Warren:

I know but you’ve looked into it since and can you tell us whether or what the practice was before?

Earl McBee:

No sir, I really cannot.

I do not know.

Earl Warren:

You wouldn’t say that that’s (Voice Overlap) —

Earl McBee:

The only —

Earl Warren:

You wouldn’t say that was not the practice of the —

Earl McBee:

The only thing that I do recall and I do have some recollection of this.

There was an application made, a request made to the mayor and to the — and to Commissioner Connor by Mr. Shelton who was the Ku Klux Clan officer or some official to have a demonstration on the city steps and I remember that they said no.

That’s all I can recall specifically about this particular matter.I do not know.

Potter Stewart:

Did they say no or did they say we haven’t got the power to say yes or no.

You have to go to the Commission.

Earl McBee:

Well, they — they were — they were — that they — that there was a three commission, three member commission.

Potter Stewart:

There are three Commissions.

One of whom is the mayor (Voice Overlap) —

Earl McBee:

They were a majority.

They were a majority, yes.

Earl McBee:

They could speak.

Potter Stewart:

There are three commissioners?

Earl McBee:

Three commissioners, yes.

Potter Stewart:

Oh, is one of the commissioners, the mayor?

Earl McBee:

Well actually yes, under that form of government.

Now I think the background of this matter should be brought to the Court’s attention.

And that is this.

Much has been said about Commissioner Connor.

Well as a matter of fact, Commissioner Connor had been defeated.

The City of Birmingham had made a change in the form of government.

I think possibly because of Mr. — some of Mr. Connor’s extreme views perhaps.

I don’t know.

I couldn’t say that.

But at any rate, there’s been a change of government.

Potter Stewart:

Well, —

Earl McBee:

And the — this mere —

Potter Stewart:

When?

Earl McBee:

— council form of government had been installed.

Potter Stewart:

When is that?

Earl McBee:

Now —

Potter Stewart:

When did that happen, Mr. McBee?

Earl McBee:

That it happened possibly a few months before.

And as a matter of fact, the newly elected officers, Mayor Boutwel and the council had been elected.

There was at that particular moment, the only thing which prevented them from taking office was a question at law which was being determined by the board, I mean in the Courts, whether or not they were required to go into an office immediately of where they had to wait a period of time before they could take office.

Potter Stewart:

So you’re not suggested — you’re suggesting that when they applied to Mr. Connor, they were a prior — applying to a private (Voice Overlap).

Earl McBee:

Oh, no, no.

No, I didn’t mean to say that but I just simply emphasizing the fact that that Commissioner Connor was on his way out as a power in the City of Birmingham at that time.

Potter Stewart:

He was holding over — pending the straight (Voice Overlap) —

Earl McBee:

Pending the determination of when the new officers took office, that’s correct.

Potter Stewart:

The election had taken place.

Earl McBee:

Had already taken place, yes sir.

Yes sir.

That’s right.

Potter Stewart:

And the question then was when did the new people take over and he was —

Earl McBee:

Well actually, as a matter of fact —

Potter Stewart:

That he was holding (Voice Overlap) —

Earl McBee:

— they took over in May of 1923 — I mean 1963 in May —

Potter Stewart:

In May?

Earl McBee:

Yes.

Potter Stewart:

And this was in April.

Earl McBee:

This is in April.

Potter Stewart:

And that was — it was in the latter part of April.

We tried this case I believe about the 23rd and 24th of April and they took the office in May following.

And the question was raised whether or not there is any rule in the fed — in the Courts of Alabama giving precedence and priority to injunction hearings.

We do have a rule, Rule 47 which does provide that they shall give priority to hearings of this particular kind.

William J. Brennan, Jr.:

Mr. McBee, I know —

Earl McBee:

I would like — excuse me.

William J. Brennan, Jr.:

I noticed at page 82 there’s a border, dated April 15th fixing April 22nd as the date for the hearing and a motion to dissolve.

Earl McBee:

Yes sir.

William J. Brennan, Jr.:

Whatever happened?

Earl McBee:

Well that — I’m glad you asked that question because that’s just what I was going to say.

What happened was this, when the convictions were handed down, the — that is in these particular cases —

William J. Brennan, Jr.:

What date was that?

Earl McBee:

— the counsel for the opposing —

William J. Brennan, Jr.:

What date was that Mr. McBee?

Earl McBee:

It was on the 29th of April I believe.

I think that’s correct.

It was about the 29th of April.

There was an understanding between the city council and the counsel representing the parties that we would not prosecute those cases further, that is — that case is rather pending their decision on this particular case.

And so that is the reason that we did not — it has not been brought up for hearing.

Earl McBee:

It has not been prosecuted.

And I might say since the Court of Appeals decision, there has been no effort whatever to enforce the 1159.

Of course, it is —

Potter Stewart:

Have you said, considered another ordinance?

Earl McBee:

No sir because it has not been ruled upon by the Supreme Court of Alabama yet.

Potter Stewart:

But you’d not enforced it?

Earl McBee:

It has not been enforced, no sir.

And as a matter of fact, this same — for some of these same petitioners, Reverend Shuttlesworth is conducting demonstrations right now in the City of Birmingham, it was last week, I suppose he still is, I don’t know.

Earl Warren:

What was the sentence in this case?

Earl McBee:

They were sentenced for five days and $50 I believe.

Now that is the maximum penalty however in the State of Alabama for criminal contempt, but however I would like to call attention to the fact that all of the defendants, those that made the defined statements and those that just participated in the actual marches and parades were fined the same, no differences was made.

Earl Warren:

Mr. Breckenridge.

J. M. Breckenridge:

Mr. Chief Justice, may it please the Court.

First thing I would like to mention into coming on is the bona fide of the so-called full Birmingham demonstration from 1963 which have been mentioned I don’t know just exactly what connection they have unless they imply that the principle was lofty that it justifies a violation of a direct court injunction or decree.

But I would assume that any municipality like Birmingham demonstrations of this nature would be aimed at the hope of convincing the local government to change some law or some procedure.

Now let’s see what these defendants did.

They mounted by outsiders the defendant’s majority were outsider.

They come in to the city of Birmingham at a time when the people of the City of Birmingham had voted to change its form of government.

Now, who has the deciding vote in that election?

The majority of the voters who voted for the new form of government were Negros.

And they voted overwhelming for the new form of government.

They have had had an election.

Commissioner Connor had run against Mayor Boutwell, and Mayor Boutwell had won the election.

And they started these demonstrations in April, first of April 1963.

And under the law, the new form of government went into — they took office on April 15th.

Now who —

Potter Stewart:

What was the election date?

J. M. Breckenridge:

The Election Day was several months before that because they had to have a change in qualifying the candidates.

I think probably eight — seven to eight months along the (Inaudible).

I don’t have the exact date.

J. M. Breckenridge:

But they had changed the form of government, candidates had qualified.

They’ve elected a council of nine and they had elected a mayor.

And they were take place, take office on April 15th.

They started these demonstrations when the old government was in there.

I don’t know what they expected them to do or what they — would have been reasonable to expect.

I don’t know what the purpose was.

But they started at a time; it would seem to me reasonable to have waited, to not have started it.

But they started it.

Now they had — one of the witnesses testified that somewhat over 40 meetings.

We have never contended that we have in any way interfered with freedom of speech.

This injunction ordered the city, one of the witnesses in this case testifies that he’d been over 20 meetings and there’d been many more that mounting this campaign.

There had been usurpation of the streets prior to this that matters in this injunction.

If you read the affidavits on the complaint you have seen that there was possible disorders in the streets of Birmingham which might occur and with the change in government and the possible disorders, and the fight that the Court has authority to issue an injunction to hold a status quo and determine the validity of this ordinance are to modify the injunction or to give the right or to require the city governing body to let them parade.

They chose not to follow that injunction.

They chose to disobey it.

Not because we’re vague and uncertain, of course, they didn’t know what they were enjoined but to select certain things.

They were definite in that.

Instead of these, we will disobey.

We will march.

We will — we want everybody to come in and help us march.

That’s the effect of it, and they did do it.

And the injunction citation was obtained.

All they had to do under Alabama law was file a motion to dissolve the injunction and to modify it.

They could have had a hearing in a few days.

And the time, there was nothing urgent about these demonstrations about the timing because the timing, it should have been waited until a new government took place.

Now what happened on April —

Potter Stewart:

That was rather up to them.

I mean it wasn’t —

J. M. Breckenridge:

Well, I —

Potter Stewart:

— for you to decide whether how urgent it was, was it?

J. M. Breckenridge:

Well they have raised the question of the — the other parties the — appellants have raised the question of the urgency of the situation and the timing of the demonstration.

Potter Stewart:

Well, they wanted to have their parades on Easter —

J. M. Breckenridge:

That’s right.

Potter Stewart:

On Good Friday and Easter Sunday.

J. M. Breckenridge:

They want to have it.

Potter Stewart:

Those days come only once a year.

J. M. Breckenridge:

Well, that is correct.

And of course they applied — they didn’t apply to the governing body for a permit.

They don’t know whether they would have gotten it or not.

I do know that they have been since a new form of government has taken over, I know of no denial of a permit for any parade —

Potter Stewart:

But this is the old government still in office.

J. M. Breckenridge:

This was the old government.

Now, the new government came in — on April 15th and the old government refused to vacate.

So the time of the trial of this case we had two municipal governments in city hall and the evidence indicates that it had only one isolated incidence for it — incidence —

Earl Warren:

But what had (Voice Overlap) — what had become of the motion for this rule (Inaudible)?

J. M. Breckenridge:

The motion of — dissolution I believe Mr. McBee mentioned that this came first and that they have not moved to set it down because this was appeal to the Supreme Court of Alabama and permits for parades have all been — have been granted by the new form of government whenever they were asked for.

And since the decision of Alabama Court of Appeals we have elected in view of that decision not to prosecute anybody for parading under these ordinance without a permit, awaiting on the Supreme Court of Alabama to determine.

Now, what I was saying about the situation, the one instance in situation that shows the confusion, not the confusion but the situation in the city hall and Mr. Shorz (ph) question to Mr. Connor — when Mr. Connor he says, “You are commissioner Mr. Connor.”

Answer; “Uh-huh.”

Former Commissioner — Mr. Shorz (ph) says, “Former commission of the City of Birmingham?”

“Yes”, as Mr. Connor’s answer.

Then he says, “Did you say former commissioner?

I am commissioner.”

So you can see that we had a time in Birmingham when this had to be handled delicately and properly.

Now, we think that the record shows that it was, that there was no First Amendment involved in this case.

They had all the meetings they wanted to.

They had all the hearings.

They could have gotten permits.

They did get permits after the new government came in.

This same group got permits to parade and got them.

J. M. Breckenridge:

Now we submit that there’s no First Amendment freedom in this case.

And I say this —

Potter Stewart:

Yes, that was your opponent’s claim?

J. M. Breckenridge:

Well, I say we submit that there is no First Amendment case issue in this case.

They claim there is as I understand them.

Our opponents claim there is a First Amendment by saying to — to modify United Mine Workers, to accept First Amendment.

It matter so that in this — so they evidently assume that this case involved the First Amendment.

The First Amendment has never given the people the right to usurp the streets.

Freedom of speech as Mr. Douglas, Mr. Justice Douglas said in Thomas versus Collins, no one may be required to attain a license in order to speak, and we certainly agree with it.

But once he uses the economic power which he has in all the means, this was the (Inaudible) case.

And these — and their jobs to influence their action, he is doing more than exercising the freedom of speech protected by the constitution.

Now we said take that same argument, same reasoning, and say that once they get in the streets, and use the streets so as to inconvenience of other people and to divert their use, they’re using more than pure speech.

And that this case involves the use of the streets.

It has in it before this Court for the first time, a clear cut statement of the theory that we do not obey a law which we believe unjust which horrors right to the fundamental thought of the governing of a society.

It has that in there, a statement and it has it put into practice in refusing to obey an injunction.

Hugo L. Black:

What statement is that?

J. M. Breckenridge:

That was a statement of —

Hugo L. Black:

Where is that —

J. M. Breckenridge:

— put out by Martin Luth — at this press conference.

That —

Hugo L. Black:

Where is that statement (Voice Overlap)?

J. M. Breckenridge:

That’s in cities — complainants — wait a minute, cities of – Exhibit 2, I believe it is.

William O. Douglas:

Where is it in the record?

Excuse me?

J. M. Breckenridge:

It is in the — in several places in it but — alright.

Hugo L. Black:

Well I don’t want to take the time (Voice Overlap) —

J. M. Breckenridge:

This is just at — now, at page 410 of the record says just as an old good conscience, we cannot obey unjust laws neither can we respect the unjust use of the Courts.

Hugo L. Black:

Whose testify was that?

J. M. Breckenridge:

This is a statement put out by — this was a news release.

It has written statement by M. L. King Jr., F. L. Shuttlesworth, Ralph Abernathy et al. for engaging in peaceful desegregation demonstrations.

Earl Warren:

Mr. Breckenridge, what was the practice in the City of Birmingham prior to this time for granting permits, did the city council or the city attorney, your colleague said he was with — at the city at the time, what was the practice?

Did they all go before the —

J. M. Breckenridge:

Mr. —

Earl Warren:

— did they all go before the commissioners or did — is it a fact that a subordinate police officer made the recommendation.

The Commissioner granted the —

J. M. Breckenridge:

Well —

Earl Warren:

— permit?

J. M. Breckenridge:

Mr. Chief Justice, I don’t believe there was any established practice.

I would deny that there were times when probably a permit was issued by the city clerks.

Whether they — if it were issued, it was issued without authority of law or ordinance and had it — had the approval of (Inaudible) ours has been referred too, we would require that it’d be by the governing body as we did require later that it’d be by the city council.

And in —

Earl Warren:

Do you say —

J. M. Breckenridge:

— the new city code, we have changed that and in adopting a new city code in which we have completely taken out a many ordinances that were claimed objectionable.

We have put that authority in the mail where I think it ought to be.

Earl Warren:

Well that’s subsequent to that but do the records of your city show that as a practice, permits were granted by the vote of the City Commissioners or was it done ex parte through the clerk and the police officers.

J. M. Breckenridge:

Mr. Chief Justice, I’m going to have to say that I have not personally examined those records.

I will say that I believe they will show that they were granted on approval of at least two commissioners by the city clerk rather than formal action in the city commission meeting.

Now that would be my thought.

I have not reviewed the records but that — I do think that that would be the results.Of course, I still say that that is not relevant to this case.

That if — that they could have come to the jury and say look here Your Honor, we don’t — or not to have to go to the city commission to get these permits.

That’s invalid in law if it is and I don’t think it is.

But it’s invalidly — it has been invalidly applied.

And we would like for Your Honor to let us have the parades.

When our Judge Johnson did that, he said, “You take this parade from Selma to Montgomery.

And there’ve been in a number of cases in which — even in Birmingham, the city has been enjoined in enforcing certain ordinances, in certain respects, and under the old co — city code.

And so I say it is absolutely immaterial in this case whether it was or was not of practice because —

Earl Warren:

You mean that the city that granted permits through the clerk without any reference to the city council — conference by the council at all over a long period of time.

And when these people came in they said, “We don’t’ have authority to do that.

J. M. Breckenridge:

Now, what —

Earl Warren:

You’ve got to go to the city council and have them determine it at some future date?”

J. M. Breckenridge:

Mr. Chief Justice, I’d say you’re correct if it was a prosecution — violating of an order.

But it goes through the how — by prosecution for contempt, for violating a court order.

A court order commands greater respect and must on our system of government command greater respect in an order.

Now in an ordinance, you can’t test it except probably by being arrested.

But in the court order, the way as they are charted by the law for the purpose of protecting society as a whole sec — if this order is wrong, come in and tell the judge.

And that’s what these cases say through — all through the country, that you modif — come to the judge and get it modified and get it resolved out.

I’ll give you one illustration, I got an order enjoining the — me, eight or nine years back from playing night baseball in the certain park.

The case was applied only to one corner of the park.

We had a big lighted baseball down in another part of the park.

But we — I — we didn’t play baseball in violation of that order.

I marched into the Court, filed a motion for modification, and of course, got it because it was an oversight.

But would it have been the same thing if we say it was an invalid order.

I would not — you just cannot on our system of law disobey court order.

I think this Court knows that more than anyone of — any of us, but in administering municipal affairs, that is a matter so important that I — I personally don’t think it’s a big argument.

And I just want to say one thing —

Abe Fortas:

Mr. Breckenridge, may I ask you a question about Fields against City of Fairfield?

J. M. Breckenridge:

Yes sir.

Abe Fortas:

In that case, the Court quoted from an earlier Alabama decision, ex parte National Association for Advancement of Colored People, 265 Alabama.

And then a part forward in the Fields case, it says this.

It is only where the Court lack jurisdiction of the proceeding.

Or where on the face of it, the order disobeyed was void.

Or where procedural requirements with respect to citation for a contempt and the like were not observed.

Or where the fact that contempt is not sustained that the order or judgment will be quashed.

That was a contempt case like this.

But reading that, it says that where on the face of it the order disobeyed was void.

It’s on the basis of that plus one of the statements in the Fields case that their adversary argues that the voidness —

J. M. Breckenridge:

Let me —

Abe Fortas:

— of the order permits the —

J. M. Breckenridge:

Mr. Justice Fortas let me —

Abe Fortas:

(Inaudible)

J. M. Breckenridge:

Let me answer — and answer that.

I do not — a Court order is not void into my opinion.

If the Court has jurisdiction of authority, of the issues, and the authority to issue injunction, it maybe defective, it may be irregular but the —

Abe Fortas:

Well, that’s not what this says though.

Where — this says —

J. M. Breckenridge:

Well, it said —

Abe Fortas:

— where the —

J. M. Breckenridge:

— if it void —

Abe Fortas:

Where the Court lack jurisdiction or —

J. M. Breckenridge:

Oh, well there —

Abe Fortas:

— where the order was void.

J. M. Breckenridge:

Under United Mine Workers court — if the Court lacks jurisdiction, certainly it can be obey — disobeyed in the (Voice Overlap) —

Abe Fortas:

But really the question, the question is whether Alabama law prior to its decision in this particular case permitted the use of the unconstitutionality of the ordinance or the unconstitutionality of the order as a defense to a prosecution with criminal content.

J. M. Breckenridge:

Yes, I —

Abe Fortas:

And that is the question and certainly it’s a position that seems to be arguable —

J. M. Breckenridge:

Well, of course I —

Abe Fortas:

— or maybe not be right but it’s arguable in any rate on the basis of the language in Fields.

J. M. Breckenridge:

Well of course to Fields, there the — there’s clearly a distinction between civil and criminal contempt.

One rule applies to civil.

Now, if the —

Abe Fortas:

But still (Voice Overlap) —

J. M. Breckenridge:

— if the order falls, the contempt falls but on the — under criminal, if the order falls, the contempt does not necess — does not fall.

But now this order is not void.

Void, as I see it is — what the Alabama courts mean is for its criminal contempt lack of juris — what’s it — same thing that means the United Mine Workers, lack of jurisdictions, lack of authority to issue and not feel that jurisdiction —

Abe Fortas:

But a criminal contempt was —

J. M. Breckenridge:

Fear for the criminal contempt, and fear to nail down that we are far in the United Mine Workers, although it did.

Mr. Justice Stewart said make a remark but the Courts after take up some collateral issues —

Abe Fortas:

Well, but (Voice Overlap) —

J. M. Breckenridge:

— for various reasons.

But then they —

Abe Fortas:

— that sort of make a remark that the — on its face the statute is not void as — that’s a — remarked to be, hasn’t it?

J. M. Breckenridge:

Well it made that — it did make that statement but it — if it stop there, I would say it was authority.

But when it — you — if you’re going to say it’s authority for the position of the appellants in this case, then you have got to erase what follows after.

And you can’t do that, Mr. Justice Fortas.

If you take what’s followed after it, you see that it is an affirmative adoption of the Unite Mine Workers rule and Howat versus Kansas also.

Thank you.

Earl Warren:

We’ll recess now.

Jack Greenberg:

May it please the Court in a minute, I would like to reply to a certain questions that were asked by Mr. Justice Fortas and Mr. Justice Black.

William J. Brennan, Jr.:

Before you do, what happened to that motion to dissolve that was set down for argument on the 22nd —

Jack Greenberg:

It was never heard, these —

William J. Brennan, Jr.:

Well, what happened (Inaudible)?

Jack Greenberg:

It’s still pending.

William J. Brennan, Jr.:

22nd came up (Inaudible)?

Jack Greenberg:

Still pending.

William J. Brennan, Jr.:

What happened on the 22nd?

Jack Greenberg:

We move to have the motion to dissolve, heard our opponents, move to have the motion of contempt heard.

The city and the judge insisted upon going ahead on the motion of contempt.

We said the motion to dissolve should be heard first and we want a time to sue out a writ of prohibition to have that established in the State Supreme Court.

The trial court refused to give us time, insisted in going ahead on the contempt and the motion to dissolve was not heard.

William J. Brennan, Jr.:

And you never pressed on having —

Jack Greenberg:

We never pressed it thereafter —

William J. Brennan, Jr.:

At that time he did set a time for hearing.

Jack Greenberg:

He had set a time for hearing, yes but —

William J. Brennan, Jr.:

Well, your opponent suggest that there was an agreement between counsel that the hearing would be (Voice Overlap) —

Jack Greenberg:

I mean he set a time for hearing subsequently.

Subsequent —

William J. Brennan, Jr.:

He set it on the 15th because (Voice Overlap) —

Jack Greenberg:

Yes, he said it for I think some date in May actually.

William J. Brennan, Jr.:

No, he said it was the 22nd (Inaudible) —

Jack Greenberg:

Yes, he did set it for the 22nd but on the 22nd was the day that both the contempt and the motion to dissolve came up.

Jack Greenberg:

He did set a time for hearing.

They both came up the same day.

We said, “Ours was filed first.

We thought it ought to be heard first.

It was prior”.

The Courts said, “Well, I’m going to hear the contempt first”.

Mr. Chief Justice, may I just have one minute?

Earl Warren:

You may answer the two questions, you mentioned that — if you do it briefly —

Jack Greenberg:

Yes, thank you.

Earl Warren:

— but the —

Jack Greenberg:

Yes.

Mr. Justice Fortas asked about Fields versus City of Fairfield and I would like to say the language he quoted is on page 52 of our brief.

But in addition to that language, the Supreme Court of Alabama did pass upon the merits of the injunction and did pass upon the merits of the ordinance and treated with the Mine Workers question as going to jurisdiction in the disjunctive.

And therefore we claim that the merits of the injunction and the ordinance were there.

Justice Black asked, whether or not, Mr. Claiborne and I assume the same question applied to us would agree that the municipality can regulate the streets and perhaps under some circumstances prohibit use of the streets.

And certainly we would concede that that is the case.

No one denies that but, we think the law is clear that it must be done under precise standards, and it must be done on the basis of equality.

The quality is to all and I think that is our position in the case.

There has been some mention, Mr. Justice Black of the facts of the demonstrations.

That however was never an issue below.

The only thing was in issue was, was there a permit?

And in fact, the police testified that the marchers and the onlookers were separate.

The police had cleared out the area.

There was no vehicular traffic in the area.

There were no White people in the area.

Any disorder that occurred with the three or four arrest were not in the marchers, there were other people.

The police testified that they could have obtained assistance if they needed it from a sheriff’s office or the state police but they did not need it and did not seek to get it.

Thank you.

Hugo L. Black:

May I ask you just one question?

Was there any effort made — I’m not sure if it’s in the record, by the defendants or any other to get a permit either from a subordinate or from an inferior or superior officer?

Jack Greenberg:

Yes, there was Mr. Justice Black.

On a number of occasions, on April 3rd and on April 5th prior to this date, efforts to obtain permits were met by consistent rebuffs including Bull Connor saying when it — when someone came into him, one of the commissioners, Mr. Breckenridge stated that two commissioners could grant a permit.

They went to one of the two.

Certainly that was proper and said, “How do I go about getting a permit to a parade in Birmingham?”

And he said, “Get out of here.

I’ll picket you to the city jail, you won’t —

Hugo L. Black:

Who did that?

Jack Greenberg:

Commissioner Connor.

Hugo L. Black:

Who for the defendant?

Jack Greenberg:

Mrs. Lola Hendricks, who was a rep —

Hugo L. Black:

As (Voice Overlap) in the parade, yes.

Jack Greenberg:

Mrs. Lola Hendricks who was a representative of defendant Shuttlesworth and of the Alabama Christian Movement for Human Rights did that.

And it so appears in the record and it’s described in that manner.

She was accompanied by a Baptist minister when she went there.

Earl Warren:

What was his answer to the —

Jack Greenberg:

He said I will — you — no, you will not get a permit to picket in the streets of Birmingham.

I will picket you to the city jail.

She not only asked him for a permit, she also asked him how do I go about by getting one.

Thank you.

Earl Warren:

Very well.