Walker v. City of Birmingham

PETITIONER:Walker
RESPONDENT:City of Birmingham
LOCATION: Birmingham City Council

DOCKET NO.: 249
DECIDED BY:
LOWER COURT:

CITATION: 388 US 307 (1967)
ARGUED: Mar 13, 1967 / Mar 14, 1967
DECIDED: Jun 12, 1967

Facts of the case

Civil rights activists who planned to march on Good Friday and Easter were denied parade permits from the city. When they indicated their intention to march anyway, Birmingham obtained an injunction from a state court which ordered them to refrain from demonstrating. Marchers who defied the order, including Martin Luther King, Jr. and Ralph Abernathy, were arrested.

Question

Did the injunction violate the First Amendment?

Earl Warren:

Number 249, Wyatt Tee Walker et al., Petitioners, versus City of Birmingham, etcetera.

Mr. Greenberg.

Jack Greenberg:

Mr. Chief Justice and may it please the Court.

This case is here on petition for writ of certiorari to the Supreme Court of Alabama.

It involves a wide-range of constitutional issues which include the following questions.

First, the constitutional validity of a parade permit ordinance, second, the constitutionality of the administration of that ordinance, and then the question of the admissibility of evidence to establish the mode of this administration.

The validity of an injunction which embodies that ordinance in toto and requires parties to refrain from a lengthy enumerated series of lawful acts, the applicability of the so-called Mine Workers rule, that is the question of whether one may litigate first in the Alabama courts, and second in this Court, the validity of a permit ordinance and the validity of the injunction and the action for contempt, the constitutionality of the finding of contempt based upon statements by petitioners expressing outrage at the issuance of the injunction.

And the validity of a finding of contempt against certain petitioners against — on whom the papers had not been served.

Which one of those questions do you think is the master question in this case?

Jack Greenberg:

Well, we would submit the master question in this case is the constitutionality of the permit ordinance because we would say thereby the injunction falls and because of the nature of the First Amendment questions involved in this type when it affects one’s speech, the so-called Mine Workers rule does not apply and we have — there are reasons in state law where the Mine Workers rule does not apply also.

But I was about to say Mr. Justice Harlan that while it would be impossible to discuss within 30 minutes — because it will be impossible to discuss within 30 minutes all of these issues, all of which are rather serious, I planned to focus upon — but one or two of them.

And in view of the fact that the United States in an amicus brief has addressed its attention exclusively to the so-called Mine Workers problem and the position in their brief is the same as ours.

I do not plan to discuss that question, although I would of course be happy to answer questions concerning it, if the Court has any.

The issues arise out of incidents —

Abe Fortas:

Well, may I ask you then if you don’t mind, the — as I remember the Government’s brief — they say that — perhaps I am mis — I don’t want to misrepresent their view but I think they — I had the impression that they said that this case should be regarded as an exception to the Mine Workers doctrine, would you phrase it that way?

Jack Greenberg:

Well, I might.

I would say that the Mine Workers doctrine was not to or was never intended to apply to a situation like this that indeed the Mine Workers doctrine —

Abe Fortas:

Why, because it’s First Amendment?

Jack Greenberg:

Well, not only because it’s First Amendment, because of the circumstances in which it arose because of the nature of the prior restraint haven’t — of the injunction having been issued just within a very brief period of time before the march was supposed to commenced because of the —

Abe Fortas:

You mean it’d be — would be unfair, do you mean it’d be unfair to invoke the Mine Workers doctrine here?

As I understand it, the Government’s brief and the reason I asked you about the Government’s brief is that you seem to indicate that there was an identity views.

But as I understand the Government’s brief as to the effect that — if you apply Mine Workers here, then the contempt order is valid and that you have to work out some kind of an exception, the Mine Workers that this is not the type of injunction or not the type of situation in which Mine Workers should apply?

Jack Greenberg:

Mr. Justice Fortas, I think that we face — we might just posit two-types of situations, and one in which is there’s merely a permit ordinance on the books and there is an interest in regularity of enforcement, an interest in perhaps applying and attempting to obtain a permit under that ordinance.

Yet this Court has recognized in numerous cases that if that cont — ordinance is unconstitutional on its face whereas applied one may violate it with impunity.

On the other hand, we might posit a situation in which we might assume that injunctions ought to be obeyed until they are litigated and disposed of on the injunction rather than on the contempt.

Abe Fortas:

Well, that’s what Mine Workers says.

Jack Greenberg:

Yes.

I would say this is a hybrid situation in which the injunction embodies in toto the ordinance and merely transforms the mode of its enforcement from ordinary criminal misdemeanor proceedings to contempt proceedings and we would argue that it falls in the permit ordinance type category of cases rather than the other.

Now if you want to call it an exception, that’s possible but I think —

Abe Fortas:

In toto (Voice Overlap) —

Jack Greenberg:

— it’s a different kind of a case.

Abe Fortas:

— of anything, I believe that were (Voice Overlap) —

Jack Greenberg:

Well, if one would, yes.

We also have an argument which I think is — which we would submit is correct and that is that under Alabama law, this is the first time that the scope of reviewing contempt has ever been so narrowly interpreted that in the case of Fields against City of Fairfield which came to this Court and was reversed on no evidence grounds, there was a question of the validity of a permit ordinance involved.

The Alabama Supreme Court appraised the validity of the ordinance then appraised the validity of the injunctive order passing upon the merits as part of one of its foregrounds for assessing the validity of the contempt.

One of which was whether the injunction was on its face void.

It held it was not void and affirmed the contempt.

We say this isn’t exactly this category, and in a speech’s state ground — non-federal ground for affirmance was given.

And I hope to come to that in a few moments (Voice Overlap) —

Now, (Voice Overlap) to argue the Mine Workers claim, you’re going to stand on the Government’s brief?

Jack Greenberg:

Well, and our brief as well Mr. Justice Harlan, merely bec — well, I’ll argue it if I can get to it.

The only reason I was trying to save the time of the Court, I do believe that in a summary argument, that there were a number of important things I had to say in the Government’s brief —

This is a threshold thing that you’ve got to get it?

Jack Greenberg:

Well, I believe that I —

It — in state ground, this is an adequate state ground.

I think this brief —

Jack Greenberg:

Well, I don’t believe this is an adequate thing —

No, I didn’t mean — if it is an adequate state ground, everything else you say is irrelevant.

Jack Greenberg:

Well —

Therefore, I would suppose you’d address yourself in first things first.

Jack Greenberg:

Well, Mr. Justice Harlan, let me address myself to it then.

And I think in order to understand the context — the Mine Workers, the so-called Mine Workers doctrine and the other issues involved in this case, it’s important to see the context in which this case arose because First Amendment rights, prior restraint questions, questions of — all the questions involved in this case turn on the context of the situation, the enforcement of the ordinance and so forth.

This case — issues arose on an incidence which occurred four years ago known as the Birmingham Demonstrations of 1963 which were acknowledged to have been the impetus to passage of the Civil Rights Act of 1964.

Birmingham at that time was a virtually, a totally segregated community.

Nine years after this Court’s decision in Brown against Board of Education, there had been absolutely no school desegregation.

Fifteen years after this Court’s decisions in Sweatt and Mclaurin pursuant to state policy, the University of Alabama remained racially segregated.

This Court’s decision in Gober against City of Birmingham reflects the unconstitutionality of the racial segregation ordinance within the City of Birmingham.

The ordinary channel to which democratic change might be affected, that if by exercise of the ballot were clogged, only 11% of Birmingham Negroes were able to vote and after passage of the 1965 Civil Rights Act, the rather low degree of Negro discretion was confirmed by the fact that federal registrars were sent into Birmingham.

And we submit that the First Amendment claim in this case — that with regards to the First Amendment claim in this case nothing is a greater testimonial to the wisdom and utility of the First Amendment as a mechanism for affecting change democratically than the fact that the exercise of speech, assembly and other First Amendment rights in Birmingham at this time informed the conscience of the nation and helped changed this situation not only in Birmingham but indeed in other parts of the country.

Those First Amendment rights were not exercised without opposition.

Jack Greenberg:

Numerous decisions of this Court indicate and as the report of the United States Civil Rights Commission indicates which is quoted at some length in our brief.

It said that street demonstrations were regularly suppressed and the police follow that policy and they were usually supported by local prosecutors in Courts.

The particular facts that of which this case arose were as follows.

These demonstrations were part of the series that began on early April.

Birmingham has a parade permit ordinance set forth and quoted in our brief on page 4 which ordinance was embodied in toto into the injunction in this case and it stated that the Commission, the City Commission will grant the permit for parade processions or other public demonstrations unless in its judgment and I quote, “for public welfare, peace, safety, health, decency, good order, morals, or convenience require that it be refused”.

One of our — as part of our argument we submit that this parade permit ordinance is unconstitutional and indeed, the Alabama Court of Appeals in a case arising out of this very march that’s involved in this case and involving one of the very petitioners here, held that ordinance unconstitutional.

Abe Fortas:

Well, your claim — I don’t get this, all you’re asking us to do if I correctly understand your brief, can I call your attention at page 31, is that — you’re asking that the — you’re complaining that you were denied an opportunity to offer proof in support of a federal constitutional defense, is that right?

So that (Voice Overlap) —

Jack Greenberg:

We — that’s not all we’re doing Mr.–

Abe Fortas:

What we would do — what we would do if I understand your presentation as to remand this case?

Jack Greenberg:

No, that is merely — we make a series of arguments —

Abe Fortas:

Not technically remand the case but to send it back so that there would be a hearing and the evidence would be receive which you claimed was improperly rejected?

Jack Greenberg:

That is merely one of the series of arguments.

We also argue that the ordinance is unconstitutional on its face, that the injunction is unconstitutional — unconstitutionally vague —

Abe Fortas:

But what do you want us to do?

What —

Jack Greenberg:

We would like you to reverse the convictions of contempt on the ground that they are based upon the enforcement of an unconstitutional ordinance embodied into an unconstitutional injunction.

Abe Fortas:

Do you say where regardless of any evidentiary basis which is —

Jack Greenberg:

This is —

Abe Fortas:

— which you’ve just been discussing the evidentiary basis?

Jack Greenberg:

This — an alternative argument, this argument on page 31 that you’re referring to Mr. Justice Fortas.

Now on April 3rd, a representative — petitioners went to City Hall to inquire about getting a permit and she said she went to Mr. Connors’s office, this is “Bull” Connor who was the Commissioner of Public Safety to inquire about getting a permit or to inquire about how a permit might be obtained.

He said, “We came to apply to see about getting a permit for picketing, parading and demonstrating”, and he replied, “No, you will not get a permit in Birmingham, Alabama to picket.

I will picket you over to the city jail”.

And she said he repeated that twice.

He did not inquire about the names, dates, places, numbers or anything else, which might be pertinent to a valid enforcement of a permit ordinance.

Several days later, some of the petitioners sent a telegram to the Commissioner and asked him whether they can have a permit and he replied back and said “I can’t give you one, you must refer this to the entire Commission.”

Potter Stewart:

Well, of course that’s what the ordinance says too, isn’t it?

Jack Greenberg:

Yes, the ordinance says that.

But then at the trial, there was an effort to attempt that that in fact was not the procedure that in fact the permits were issued by the city clerk on the recommendation of the traffic division which was under the Police Commissioner and all those proffers were refused.

Potter Stewart:

Well, but the — the ordinance does say that the license has to be secured from the Commission.

Jack Greenberg:

That’s right.

Potter Stewart:

The telegram also informed you that the license had to be secured from the Commission.

Jack Greenberg:

That’s correct.

Potter Stewart:

So that whatever —

Jack Greenberg:

But our position was —

Potter Stewart:

— might have been done (Voice Overlap) — you were told both by the words of the ordinance and by the specific language of the telegram that the li — that your application for a license had to be made with the Commission?

Jack Greenberg:

That’s correct.

But if the evidence had been — has been allowed, it would have developed that as the record shows that in fact this ordinance was enforced in quite a different way that it was in — that the City Commission in fact had never granted a parade permit.

That the parade permits were be granted by the city clerk on the recommendation of a subordinate of Commissioner Connor.

And I think —

Potter Stewart:

Well —

Jack Greenberg:

— that would make quite another story if that were established in the record.

Potter Stewart:

Well, except that the telegram told you that — the entire commission has to grant it.

Jack Greenberg:

Well —

Potter Stewart:

And that is what the ordinance says?

Jack Greenberg:

But we’re trying to prove that that wasn’t true and that wasn’t permitted.

Potter Stewart:

But your Commissioner was sending —

Jack Greenberg:

That the — that the Commissioner was sending these petitioners to a procedure that all other citizens of Birmingham not have to follow, that it was a discriminatory enforcement.

Potter Stewart:

Yes.

Jack Greenberg:

In any event, —

Byron R. White:

What would make the statute (Inaudible)?

Jack Greenberg:

Well, it — we would submit that it — it makes it bad on the record though Mr. Justice White, because the injunction remitted us to amend whom — who might kick one of the representatives of petitioners out of the door and then center on a runaround to follow a commission that — a procedure —

Abe Fortas:

(Inaudible)

Jack Greenberg:

That no one else would follow or had to follow.

Abe Fortas:

Its not — it doesn’t make it bad on the record because it’s — the record is not here.

You’re saying you made it proffer?

Jack Greenberg:

That is correct.

Abe Fortas:

And that’s a very different matter.

Jack Greenberg:

Well, as to the aspect of a case that relates the proffer, there would have to be a hearing on that.

Jack Greenberg:

As to the aspect of the case that relates to the constitutional — constitutionality of the ordinance we would submit that if this Court finds that the ordinance is unconstitutional, the conviction should be reversed.

Byron R. White:

Unconstitutional on its face?

Jack Greenberg:

On its face, we — this ordinance we submit is very much like almost — it literally in some force is like the ordinance and stab new facts.

Byron R. White:

Well, what if that the injunction hearing though or the contempt hearing — over that time you know that your conduct is the kind of conduct that the ordinance and the injunction you are compelling to proscribe and there’s — the vagueness is out of it — maybe overbreadth this, but the vagueness is out of it?

Jack Greenberg:

Well, I wouldn’t even say that vagueness was out of this Mr. Justice White because one of the — the things about his record that is rather clear is that there was an effort to conduct all of these walks on the sidewalk.

Byron R. White:

Well, that doesn’t (Voice Overlap) —

Jack Greenberg:

With the thought that it would not come under the ordinance and the Alabama Court of Appeals dealing with this incident in a criminal case has held that certainly, this doesn’t apply to the sidewalk.

Byron R. White:

Well, this seems to me they go to Mr. Justice Fortas’ question about it maybe an evidentiary record if we (Inaudible).

Jack Greenberg:

Well, if the Court were not to agree with us on the question of the constitution — that the vagueness of the injunction and of the ordinance, then certainly these convictions could not be affirmed without an evidentiary record.

If we establish the evidence that we proffer, then of course we submit that the charter should be dismissed.

Demonstrations continued in Birmingham and the complaint filed against the petitioners alleged that they were sit-in demonstrations at privately owned businesses and this Court subsequently held they could not be punished.

In the Gober case, there was alleged parades without a permit, petitioners filed affidavits in response to this saying that they were walking on the sidewalk and this is not something which a permit was necessary.

They were contemplated though apparently never occurred the so-called kneel-ins at churches and then there were a great many arrest during this period of time.

I might inform the Court that now pending approximately 1500 cases on appeal to the Circuit Court in Birmingham awaiting final disposition either of this case or of the Shuttlesworth case in the Alabama Court of Appeals.

About seven to eight hundred were dismissed on the basis of this Court’s decisions in Gober and Ham (ph), and about 1100 juvenile cases were dismissed with no reason being given.

And then about 50 to 60 people paid fines and — so those cases were disposed off.

The city catalogued these occurrences in a complaint filed at 9:00 P.M. on Wednesday April 10th, asking for a temporary restraining order against all so-called unlawful demonstrations and parading without a permit.

Without notice, without hearing, the Circuit Court entered a temporary restraining order forbidding the —

Potter Stewart:

There’s nothing wrong about that, isn’t it?

Right?

Are you implying that that’s shocking, that you had — entered a temporary restraining order without a hearing?

Jack Greenberg:

Yes, we — there’s — not in the abstract, but I think we’re dealing here with a First Amendment context and assessing the validity of the injunction and assessing the validity of contempt convictions I think that that all adds up to the general repressive atmosphere and the way this type — these proceedings were being used in the City of Birmingham.

Essentially, this TRO is granted the night — on the affidavit of “Bull” Connor who were requesting the Court to remit the petitioners back to “Bull” Connor if they wanted a march.

After he had told them that, “I will picket you to the City Jail”, and we would submit that this is not that kind of — this is not a Mine Workers case be it called exception or otherwise.

Earl Warren:

We’ll recess now.