FIELDS v. CITY OF FAIRFIELD

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Argument of Melvin L. Wulf

Chief Justice Earl Warren: Number 30, Edward R. Fields et al., Appellants, versus City of Fairfield.

Mr. Wulf.

Mr. Melvin L. Wulf: Mr. Chief Justice, may it please the Court.

This case is here on appeal to review determination of the Alabama Supreme Court, which affirmed a criminal conviction, a conviction for criminal contempt in the Circuit Court of Jefferson County, Alabama.

Individual appellants, Lyons and Fields, were sentenced to five days in jail and were fined $50 apiece.

The case raises two constitutional questions.

One, whether the City of Fairfield may use the power of the injunction to suppress in advance the enjoinment of First Amendment rights in order to preserve its conception of the status quo.

The case is a direct successor to the long line of cases which this Court has -- in which this Court has spelled out the crucial part played by freedom of speech in the development of political liberty in the United States.

There is the second question relating to the Thompson v. Louisville point whether or not the record is so devoid of evidence that the conviction must fall.

The facts are these.

The individual appellants are Officers of the National States Rights Party.

The party which has appeared on the ballot in several states stands for white supremacy.

Appellants announced that a meeting was to be held in Fairfield, Alabama on October 11, 1961.

They distributed leaflets announcing a meeting which stated in effect that the purpose of the meeting was to advocate racial segregation in schools, recreation facilities and labor unions.

The meeting was to be held not on the streets, not in the parks, it was to be held in a private hall and it was a public meeting to which the public was invited.

The day before the meeting was to be held, the Mayor of Fairfield learned that the meeting has been announced and that handbills have been distributed announcing the meeting.

He therefore sent a notice to appellant Fields telling him that he had violated two ordinances of the City of Fairfield, which together flatly prohibited the distribution of any leaflets, pamphlets, or any kind of literature at all on the streets or any other public way in the city.

And that by announcing that this meeting was to be held the next night, he had violated another city ordinance which require that before any public meeting be held, a permit be obtained from the Mayor of Fairfield and Fields has not made application for this permit.

In the course of that day which was the day before the meeting was scheduled, appellant Fields and the Mayor had two phone calls which were inconclusive, but they came to some kind of agreement that Fields would go to the Mayor's office the next day at about 2 o'clock in order to discuss it further.

The next morning, however, the City of Fairfield went into Circuit Court with a bill of complaint and alleged that the appellants had called a public meeting for that evening, had announced the meeting by distributing handbills I quote, from the bill of complaint, "By distributing handbills of an inflammatory nature designed to create ill-will and disturbances between the races."

The complaint alleged that the handbills have been distributed in violation of the two city ordinance referred to and that no permit have been obtained for the meeting that has been announced.

The compliant also alleged that the purpose of the meeting was, "To create tension, ill-will, disturbances and disorderly conduct between the races", and that it is, "Calculated to create a disturbance, incite to riot, disturb the peace, and disrupt -- disrupt peace and good order in the City of Fairfield that would constitute a public nuisance injurious to the health, comfort, or welfare of the city and its inhabitants."

The Court issued the injunction forthwith ex parte, no notice to the appellants here, no notice of Fields or its alliance or to any officials of the National States Rights Party.

He issued a temporary restraining order which enjoined the appellants from holding their announced public meeting and from further distribution of handbills, "Such as were distributed Fairfield on October 10, 1961."

And the same order, he set down a hearing on the application for affirmative injunction for November 17, which was more than a month after the date of the meeting had originally been set forth.

The appellants here Fields and -- Fields was served with the temporary restraining order on noon of the day that the meeting was supposed to be held.

The meeting was supposed to be held at 8 p.m.

Justice Potter Stewart: Injunction was issued at the -- the plaintiff for the City of Fairfield?

Mr. Melvin L. Wulf: Yes sir.

Justice Potter Stewart: Well, where -- what is the City of Fairfield, a suburban of Birmingham or what?

Mr. Melvin L. Wulf: It's a suburban.

It's an industrial U.S. steel town, Your Honor.

Justice Potter Stewart: It's on the (Voice Overlap) --

Mr. Melvin L. Wulf: Its just outside --

Justice Potter Stewart: -- of Birmingham.

Mr. Melvin L. Wulf: It's just outside of Birmingham.

Justice Potter Stewart: In -- in the same county, Bismarck County, is that right?

Mr. Melvin L. Wulf: It's in Jefferson County.

Justice Potter Stewart: Jefferson County.

And that -- but this was the -- this was the Circuit Court --

Mr. Melvin L. Wulf: This was the Circuit Court which --

Justice Potter Stewart: -- which is the court --

Mr. Melvin L. Wulf: (Voice Overlap)

Justice Potter Stewart: -- jurisdiction of the County Court.

Mr. Melvin L. Wulf: General jurisdiction with equity.

Justice Potter Stewart: Thank you.

Mr. Melvin L. Wulf: That evening, that is the evening of the meeting after the TRO had been served on Fields, the appellants were arrested outside the place where the meeting had been scheduled have been held -- to be held.

They were arrested for violating the temporary restraining order and there was a -- they were jailed overnight and there was a hearing held on the contempt the next day and appellants were convicted and sentenced as I say to five days in jail, $50 fine.

Now, the evidence from the hearing, all of which is in the record and it was not very long, shows three facts without any dispute whatsoever.

Most of -- most of the facts were established by the prosecution's witnesses as a matter of fact.

One, that they had not held the meeting, two, that there was no distribution of handbills announcing the meeting after the TRO was served, and three, that there was no disturbance whatsoever.

Justice John M. Harlan: Was the injunction against the holding of any meeting or simply holding a meeting --

Mr. Melvin L. Wulf: As against --

Justice John M. Harlan: -- at this particular location?

Mr. Melvin L. Wulf: It was against the specific announced meeting.

Justice John M. Harlan: Specific?

Mr. Melvin L. Wulf: Yes, Your Honor.

The evidences which I'll just briefly review, was that Fields and Lyons had indeed gone to the place where the meeting was scheduled to be held.

But they have done so in order to tell anybody who might have intended to attend that it had been transferred to the City Park in Lipscomb, Alabama which was a town not far away.

And Fields testified that he had gotten the permission of the Mayor of Lipscomb to hold the meeting in the city park.

And Fields testified that he had no intention whatever of violating the injunction.

But as I say had gone there merely to notify people that the meeting was transferred.

He said there were about 10 to 12 people there and that he told all of them that the meeting was at -- at -- at Lipscomb that he didn't distribute any handbills, but he did distribute a few copies of the party newspaper Thunderbolt, the copies which is in the record.

Everything that Fields said was corroborated by the city police who were the prosecution's witnesses.

One Officer Pope stated there wasn't any disturbance and the conditions were peaceful.

Another Officer Meisel who actually effected the arrest of Field and Lyons testified that, "There was no meeting held."

And that he saw no leaflets being distributed.

The only thing he saw distributed was the Thunderbolt, the party newspaper.

The Chief Police didn't see any leaflets passed out other than the Thunderbolt.

So there -- it was not disputed that there wasn't any meeting, that there weren't any handbills passed out but nonetheless, the appellants were held in contempt violating the temporary restraining order.

And the reasons given by the trial court he said -- well he said that there -- there was no evidence the pamphlet was distributed but he was impressed, "By the tone and context of the newspaper, the ones they distributed, and he thought that it was a -- an artifice on the part of someone to bring home to the fact that the meeting was going to be held."

He didn't say anything all about that whether or not the meeting was held.

He just ignored that.

He said the ordinances were legal exercise of police power in a municipality and he explained what -- and he said he also didn't think that there are collateral, he could challenge the constitutionality ordinances by collateral attack.

He said very interestingly enough, he said, "It's the intention I know of the public officials both -- both of this county and of the various municipalities of this -- of the Bessemer division of this county", and we're going to everything we can, "To maintain the status quo."

He referred to a movement into one of our public parks several years ago but that was straightened out with a matter of a few weeks by the City Attorney.

On appeal before the Alabama Supreme Court, the convictions were affirmed and the Alabama Supreme Court held that there was evidence to support the findings that they violated the terms of the temporary injunction in -- in both respects and that it only spoke of one ordinance, in the singular, it said we cannot say it is unconstitutional on its face but doesn't say which ordinance it refers to.

But its judgment in effect went off on the (Inaudible) ground that the order disobeyed was not void, and citing United States versus United Mine Workers held that one may not raise a question of unconstitutionality and collateral proceedings on appeal for a judgment of conviction for contempt of the order decreed or an application for habeas corpus for release from imprisonment before contempt.

In other words, what he was saying was that, if you want to challenge the constitutionality of the ordinances and injunction, you have to do it on orderly appellate -- what -- it's -- what it said was the orderly appellate processes.

And that you could not flout the order of the Court and get a determination growing out of the contempt conviction.

That I think is the issue here.

The question, therefore, is whether the appellant is pain right to exercise, enjoy the freedoms of speech and assembly which are guaranteed by the First Amendment can be suppressed by rule of law which forbids appellants from challenging unconstitutional grounds, and indisputably frivolous injunction based upon in this unarguably unconstitutional ordinances whether they can be -- whether --

Chief Justice Earl Warren: Finish your sentence.

Mr. Melvin L. Wulf: -- whether -- whether these clearly unconstitutional ordinances and injunction cannot be tested in a contempt proceeding.

Chief Justice Earl Warren: We'll recess now.

Mr. Melvin L. Wulf: Thank you.

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Argument of Melvin L. Wulf

Chief Justice Earl Warren: Edward R. Fields, et al., versus City of Mayfield or Fairfield.

Mr. Wulf, you may continue your argument.

Mr. Melvin L. Wulf: Thank you, sir.

Mr. Chief Justice, may it please the Court.

On the facts of this case as I related them yesterday, the question that's presented to the Court now for its decision is whether the appellants' plain right to exercise and enjoy their First Amendment rights of speech and assembly can be suppressed in advance by an injunction, the worst kind of prior restraint.

We think it begs the question to talk about this case in terms of the Mine Workers case which was the ostensible basis for the Alabama Supreme Court's injunction decision and we think that it also begs the question to talk about it in terms of the concepts that have flowed from the Mine Workers case such as the jurisdiction -- to determine jurisdiction, void orders, substance of void orders, frivolous void orders and all the rest.

We think these are all irrelevant where First Amendment rights are asserted.

Justice Arthur J. Goldberg: Is that beyond limitation for them (Inaudible) not with your case but what do you think of (Inaudible) limitation under the jurisdiction?

Mr. Melvin L. Wulf: I think that very little is left under the case, Your Honor.

The rule of law that we urge the Court to adopt in this case is that essentially, that the First Amendment simply will not tolerate injunctions against political speech and political assembly.

Now, in the way this case comes up to this Court, it comes in a novel context.

And although it is novel in this case, in -- at this stage of our history, I think it's safe to say that there's been a proliferation of the use of injunctions of this sort, temporary restraining orders against speech and that other cases that raise the same question promised to come before this Court.

Now, I think the facts of this case dramatically -- excuse me -- demonstrate why the rule that we urge can and ought to be adopted by this Court.

The injunction which the appellants are held to have violated and of which they were convicted was based on three local ordinances of the City of Fairfield and we can discuss this very quickly, I think.

Two of them, together, constituted a flat prohibition against the distribution of leaflets, handbills and any other kind of literature in the public streets and in the -- all the public portions of the City of Fairfield.

This wasn't a permit requirement which would be unconstitutional on its face as well, this was a flat prohibition and Lovell v. Griffin, Jamison, Talley, all of them, together, make this ordinance unconstitutional on its face indisputably.

The other ordinance that was -- that which -- which was the basis for the injunction in this case was one that required a permit from the mayor in order to hold a public meeting.

Now, this ordinance, based on the (Inaudible) in Kansas also unconstitutional on its face, clearly so.

It has no standards in it as those two cases require, nor have any judicial standards been imported into the case, so it is unconstitutional on its face.

Moreover, it's unconstitutional as applied in this case because it was applied not against the meeting that was to be held in a public street or in a public park.

It was applied against the meeting that was to be held in a private hall in Fairfield, private hall that had no connection at all with the -- with the municipality.

And we assert that the State or local municipality has no power whatsoever to require that a permit be applied for before any individual or any group seeks to hold a meeting in a private auditorium.

Although the context is different, it is as if somebody who wanted to hold the political meeting in Carnegie Hall would have to ask for permit from the Mayor of the City of New York or from the police commissioner, I think it's unthinkable.

So, the three ordinances that are involved in this case and which were the basis for the injunction or I think without dispute unconstitutional on their faces.

The appellee seems to have conceded this and the Government's amicus curiae makes this -- grants likewise.

We then come to the injunction which was based on these three indisputably unconstitutional ordinances and I suggest that on the basis of Near versus Minnesota particularly and from other sound constitutional principles from cases in which the questions of reason and been articulated by this Court that it necessarily follows that speech, that political speech, political assembly cannot be enjoined in advance.

If any description at all can describe the effect of such an injunction on speech, I think that it must be described as the most pernicious kind of prior restraint and this Court has condemned prior restraints over and over again.

Now, this isn't a -- an abstract right that is the right to be able to speech freely without prior restraints because as this Court has said and as many people have recognized over and over again, speech and assembly in our nation is the very foundation of the nation.

It is upon the right of speech and assembly that all of our political activity rests.

It is upon speech and assembly that the determinations about how society is to be ordered rests and if political speech and political assembly can be enjoined in advance, then I fear that the very firm foundation of the First Amendment will be seriously weakened.

I think it's instructive to point out several of the -- several examples which we have in our brief about the way in which the temporary restraining order and injunctions have -- have been invoked in very recent times against speech.

And this case, as well as these examples which I set out, I think will persuade the Court that any injunction issued or temporary restraining order issued against speech and assembly can, as Justice Frankfurter said in the Mine Workers case, be treated as if it were nothing other than alluded to the newspaper and can be disregarded with impunity.

Now, in our case, the ordinances on which the injunction was based are unarguably unconstitutional.

The injunction itself is unarguably unconstitutional as a prior restraint that is based on unconstitutional ordinances.

If the face of all this, the Alabama Supreme Court said that the ordinance that the injunction must be obeyed by the appellants in this case and what they were saying in effect was that no matter how unconstitutional the injunction is that these appellants must pay sterile homage and it was nothing more than that to a court order which was not a court order but which was mere usurpation of the court's power.

There are other examples, at page 30 in our brief, of temporary restraining orders which courts have in the past year or so all over the country, not merely in Alabama, not merely in the South but in California and New York in which courts have issued temporary restraining orders, ground was temporary restraining orders, to enjoin in two cases which we have cited in our brief at note 15.

The distribution of political literature in the California gubernatorial campaign in 1962, one judge issued TRO against the distribution of some literature which suggested that Governor Brown and the other democratic incumbents were sought on communism and another judge issued a restraining order prohibiting the distribution of two pamphlets which were critical of -- of Mr. Nixon.

And the TROs were issued before the -- before election day as I understand it they were obeyed and several days after election, each of the complaining parties went into the Court and asked that the TROs be dissolved and they were.

And --

Chief Justice Earl Warren: What grounds -- on the grounds that they were unconstitutional or the grounds that it was moot?

Which was it, do you recall?

Mr. Melvin L. Wulf: On the grounds that it was moot, Your Honor, I believe.

This was -- this were the complainants themselves who went into -- complaints were gotten the TRO went back to court and asked that they be dissolved.

Chief Justice Earl Warren: Oh, I see, yes.

Mr. Melvin L. Wulf: And in New York, a judge of the New York Supreme Court issued a temporary restraining order prohibiting the appearance of Herbert Aptheker at the University of Buffalo on the ground that he was a member of the National Committee of the Communist Party and this was at a forum at University of Buffalo, where such diverse people as Oswald Mosley from England and (Inaudible) Thomas from New York had spoken freely as they probably should.

And -- but once they -- when the TRO was issued against Aptheker, he defied to speak.

The board of trustees refused to allow him to speak and that case is now on appeal in the New York courts.

And there are other cases cited in the footnote and there are cases cited in the NAACP amicus brief which is filed in this case which give other examples of the same kind of use of the temporary restraining order to interfere with constitutionally protected activity.

And again, the pernicious thing about it is that in a normal case, as far as I know in every case except this case, the defendants against to whom the TROs run have acquiesced in these because they believe that if they violate them, they will be subject to criminal contempt convictions and will not be able to challenge the constitutionality of the TRO.

So that the effect of the proliferation of the use of these kinds of court orders has had a very serious and substantial effect on -- and has impaired the rights of free speech in a wide variety of context.

And in the case at bar, although the bill of complaint alleged that the reason that this meeting or to be enjoined was because its purpose was to create tension, ill will disturbances and disorderly conduct between the races and that would be a public nuisance injurious to the health, comfort or welfare of the City of Fairfield and would create a disturbance, incite a riot, et cetera.

It just so happens that the evening before this meeting was scheduled, the appellant, National States Rights Party had held another meeting in Fairfield which was perfectly peaceful at which the public attended without any question whatsoever of disorder.

And there was no basis in the present bill of complaint for the city to go into court to say that there were -- there was a danger of inciting to riot and disruptions of peace and good order.

The fact that they also said it wasn't going to create tension, ill-will, et cetera, is not, of course, by itself any grounds whatsoever upon which to interfere with the speech and the trial court, of course, gave the real reason why this TRO had been issued.

He said that, they in that county, “We're going to do everything they could to maintain the status quo.”

So they weren't fearful of disorder.

They were not fearful of any kind of disorderly conduct.

They were just fearful that the status quo was going to be disrupted, but certainly, that's no basis whatsoever on which to enjoin a meeting.

Professor Paul Floyd had said in a little excerpt from -- that we have in our brief, he speaks of the chilling effect that injunctions have in First Amendment rights and he says it particularly obtains, if disobedience of the interim order is ipso facto contempt with no opportunity to escape by showing invalidity of the order on its merits.

And as I say, there has been a chilling effect on political liberty in the United States because of these TROs in a large number of different cases.

And of course, if the appellants here rather than having been enjoined in advance by the Circuit Court had been prosecuted directly under the ordinances which were the basis for the injunction, there's no question whatsoever that if convicted, their convictions would necessarily have been reversed if it were necessary as it may well have been to have brought those criminal cases to this Court.

Certainly, since Stau and prior to Stau, they could have tested the constitutionality of these ordinances by violating them and could have raised as a defense in a criminal prosecution the ordinances' unconstitutionality.

So, the crux of the denial in this case is that the right to enjoin your First Amendment rights was delayed because I think that that right is an immediate right and that its delay is tantamount to its denial.

And that the only way to exercise that right immediately, as one ought to be able to do, is to violate an unconstitutional and oppressive court order, again, as Justice Frankfurter said in order that's no different than a letter to a newspaper, then that route must be allowed.

And of course, the appellee speaks about the possibility of disorder or violence or incitement to violence, but that was mere speculation.

They -- they had no reason to believe that there was going to be any outbreak of violence, can be based on the meeting held just the previous evening they had every reason to believe that the meeting was going to be perfectly peaceful.

So simply by it's asserting that there was a speculative possibility and very remote at that of disorder, they -- they still did not justify at all the issuance of the temporary restraining order.

Justice Hugo L. Black: You mean if they could have offered evidence to show that that you would say that the injunction was alright?

Mr. Melvin L. Wulf: Well, he could've done in it in this proceeding, Justice Black, because with the next party proceeding without notice to the appellants, but if they were going to do it on notice with a hearing in which they are going to present evidence, my argument would be no different.

Justice Hugo L. Black: If what?

Mr. Melvin L. Wulf: If they were going to present it.

If they were going to -- if they were going to try to enjoin and on notice with a hearing and present evidence of this kind, my position would be no different.

Justice Hugo L. Black: So there might be that.

Mr. Melvin L. Wulf: Yes, my position would still be no different, Your Honor.

Of course, the Alabama Supreme Court pointed to -- based their decision upon the decision of Mine Workers, the rule of law enunciated Mine Workers and as we have said, we don't believe that Mine Workers really has anything to do with this case.

As Mr. Justice Goldberg has suggested, in re Green last term or the term before, I think it has seriously impaired the authority of that case.

And there were earlier cases, the Gas and Coke Workers which we cite in our brief which allowed state injunctions to be -- to be violative.

And Mine Workers, of course, is entirely different case because it had to do with the assertion of rights that were -- could be regulated by statute.

It concerned a very, very complex problem of statutory interpretation, namely, whether the Norris-La Guardia Act applied in the situation where the Government stood in the role of the employer or owner or what have you and third, of course, it was in the context of an industrial dispute.

But we think even in Mine Workers own terms that if this Court is going to give any credence to the -- to the Mine Workers' rule, that of the seven -- that of the nine justices that sat on the case, seven of them recognized that there was such a thing as an order which Mr. Justice Frankfurter called a frivolous void order as opposed to a substantial void order that could be violated with impunity.

Seven of the justices said there was such -- such an order.

Justices Black and Justice Douglas did not because they didn't think it was right for discussion in that particular case, but if there is any such thing as a frivolously void order, this order is it.

It was an order issued upon three unarguably unconstitutional ordinances.

It was a prior restraint.

It was in the context of the impairment of First Amendments rights which stand high in our social order and whatever assertion of jurisdiction that the Circuit Court made was entirely frivolous.

There was no -- there was no question here of his having to -- have time to determine whether he had jurisdiction because it's perfectly clear that he had no jurisdiction whatsoever.

And the appellee again suggests that, well, this was alright because if he had followed the orderly appellant procedures, he could've gotten -- he moved to quash in the -- in the Alabama Circuit Court, he could've gotten a -- if his motion to quash was denied and if he took a prompt appeal to the Alabama Supreme Court, he might have had this determination within a minimum, a minimum of 13 days assuming that both courts would decide the -- well, assuming the Alabama Supreme Court had decided the matter off the bench.

I suggest there might be more than that, but in any case even if it was a day, this would be 14 days after the meeting was originally scheduled, but even if it were a day, I say that this delay is tantamount to a denial.

Our last point is that this is another one of those cases like Thompson v. Louisville and Carter versus Louisiana, where the record is so devoid of evidence that the conviction cannot stand and I think the record speaks so clearly for itself on that point and I spoke to him yesterday when I was reviewing the facts of the case that I will rest on the -- on our brief as well as the Government's brief as amicus curiae.

Chief Justice Earl Warren: Very well.

Mr. Marshall.

Argument of Marshall

Mr. Marshall: Mr. Chief Justice, may it please the Court.

Most of Mr. Wulf's argument in this case raises questions that the Court need consider in this case only if Fields disobeyed the order that was issued by the Circuit Court of Jefferson County.

So I would like to address myself to the last point that Mr. Wulf made which is whether or not Fields did disobey the order and so the questions and problems that come up if he did disobey the order whether those are really before the Court.

The pleadings in this case alleged that Fields was going to hold a specific public meeting at a certain address in Fairfield on the evening of October 11, 1961 and that that meeting had been announced by bills which were been flammatory nature.

It attached the copy of the bill which appears at record pages 3 and 4.

The relief that was sought by the complaint which appears at record 3 was to enjoin and restrain the party in Fields from holding the said meeting at said time and place and from distributing said handbills in the City of Fairfield, Alabama.

That was the relief sought by the restraining order.

The injunction that was issued was in those narrow terms, that appears on pages 5 and 6 of the record and was there a restraining order from -- against Fields from distributing further in the City of Fairfield handbills announcing such meeting until further orders of the court and from holding the meeting as announced.

The complaint did also allege not only that ordinances existed in the City of Fairfield prohibiting the distribution of handbills and the holding of the meeting without a permit but also as Mr. Wulf has said that the meeting was among other things calculated to create a disturbance, incite to riot, disturb the peace and disrupt peace in good order in the City of Fairfield.

The judgment of contempt that was entered by the District Court, which appears on page 8 of the record, did not make any findings of violation of the specific terms of the order.

It -- only findings were in conclusory terms. It did not find that there was a distribution of the handbill covered by the order and it did not find that the meeting was held.

What it did find was that Fields and Lyons knew the terms of the injunction and willfully and contemptuously distributed literature and held or attempted to hold said meeting.

The opening statements of counsel in the case did not really claim that a violation of the order was involved.

The opening statement by Mr. Parsons was that Fields and Lyons came to the vicinity of the place where the meeting was scheduled, contacted the people there about the meeting and distributed literature.

It did not refer to having a meeting and it did not refer to the distribution of the handbills.

Justice Potter Stewart: The -- is that opening statement in the record?

Mr. Marshall: That's on pages 16 and 17 of the record.

Justice Potter Stewart: Thank you.

Mr. Marshall: The proof consisted of four witnesses and six exhibits.

The exhibits were a copy of the Thunderbolt which was the literature referred to and that appears on page 21 of the record, a rifled slug and three shotgun shells which were introduced, though they don't appear to have anything to do with the contempt and a copy of the handbill which was introduced and appears at page 42 of the record.

It was admitted, it is admitted, I think, that that handbill was not distributed after the injunction.

The witnesses were, first, Chester Poke who is a member of the Fairfield Police Force.

He testified that he saw Fields distributing a copy -- copies of the Thunderbolt in the vicinity of the place where the meeting was going to be held about half an hour before it was going to be held.

And he testified that Fields was telling the people that were there that the meeting place had been changed to Lipscomb, Alabama which is outside of the jurisdiction of the court that issued this injunction.

The arrest, Poke made the arrest, was based on these activities and none other.

And in his testimony describing that the – Poke repeated again that Fields told the people there that the meeting had been called off.

He also testified that there was no trouble and no literature distributed except the Thunderbolt.

The next witness was another policeman who had arrested Lyons, his name is Mithso.

He testified that he was there at the time before the meeting was to be held that Lyons was passing out copies of the Thunderbolt.

Someone called an officer.

He went across the street and arrested Lyons.

The officer hadn't read the Thunderbolt at that time, Thunderbolt's in the record, Thunderbolt does not refer to the meeting at all and that's the only thing that was distributed.

Mithso testified that there was no meeting.

The next witness was, Clyde Morris, a member of the Bazemore Police who were called into assist.

He served the injunction on Fields and informed Fields that he could not have the meeting.

He was present at the scene where the meeting was supposed to take place, but the only testimony he had about that was that there was a crowd there which included 15 -- 12 to 15 officers of the Bazemore Police Force.

Fields later testified, at page 49 of the record, that there were 40 to 50 police officers there.

The final witness was Charles Wood.

Chief Justice Earl Warren: How large was the crowd, did he say?

Mr. Marshall: He did not say, Mr. Chief Justice.

He said a good crowd but he did not estimate it.

I think Fields testified that he passed out about 12 copies of the Thunderbolt and as I said that there were 40 policemen there, sizeable crowd in itself.

Woods was a member of the Fairfield Police, testified that he saw the arrest, nothing more about the activities of Fields that he'd searched the car nearby and found these shells and about 100 copies of the Thunderbolt in the car.

He did not see Fields do anything and Mithso and Woods were recalled to identify this -- the car that was searched as one in which Fields had been seen.

That was the total of the prosecution evidence.

There was no evidence that the meeting was held.

There was no evidence the handbills were distributed.

There was no evidence that Fields said anything to anyone except that the meeting had been moved to Lipscomb.

There was no evidence that Lyons did anything at all except pass out copies of the Thunderbolt.

The defense called four witnesses. Smithson who is Mayor of Fairfield, Fields, Mrs. Fields and a man named “Short”, who testified that he had gone to the -- to a meeting at Lipscomb that night after having been informed that the meeting place had been changed, that's at page 60 of the record.

In summation, this evidence, defense evidence, the prosecution evidence didn't prove any elements of the contempt that was charged.

The defense evidence did not advance the cause of the prosecution.

The mayor testified nothing about what happened at the place of the meeting except that he did not know whether or not handbills were distributed.

Fields testified that there was no meeting, that he went to the place of the meeting only to change the location.

He was not permitted in.

They were surrounded by police officers but he did not intend to violate the order and that no handbills had been distributed after the order was issued.

Mrs. Fields confirmed that.

Justice Byron R. White: Mr. Marshall, you are arguing there is no evidence whatsoever of a -- of a violation but how many people were there outside this address?

Mr. Marshall: I think I've given you all the evidence on that, Mr. Justice, but there was a crowd there.

Justice Byron R. White: And he went and some of this people went -- upon when the injunction had been served.

Mr. Marshall: He went there.

Justice Byron R. White: They met with some people at address.

Mr. Marshall: Well, Mr. Justice White, the testimony is that the only things they did there --

Justice Byron R. White: Well, and that mean -- I mean physically, they were there.

Mr. Marshall: That's correct.

Justice Byron R. White: And there was a meeting.

Mr. Marshall: No, no.

I would not accept that.

Justice Byron R. White: (Voice Overlap) -- when he met with some people.

Now, you may have -- he may have gone there for a different -- he met -- he met and may have been meeting with them for a different purpose that he was going to meet with them, then he met with them.

Mr. Marshall: Well Mr. Justice, the evidence is on both sides, both the prosecution and defense evidence is that he went there to tell the people that came to go the meeting that the meeting had been called off and changed.

Justice Byron R. White: Well, I understand that but that's the meeting in itself.

Mr. Marshall: (Voice Overlap) if it is a meeting, Mr. Justice, I would say that's not the meeting that was prohibited by the injunction.

Justice Byron R. White: Was this -- it's the same that the people met the -- he met with some of the people and he -- I suppose he expected to be at the meeting inside the building, it was the same address.

Mr. Marshall: Mr. --

Justice Byron R. White: -- be it -- even if he went there to say there's going to be no meeting and that was a meeting for that purpose.

Mr. Marshall: Mr. Justice White, the meeting that was enjoined is the meeting that was called by handbill.

The handbill appears at page 3 and 4 of the record.

A meeting that is held solely to call off that meeting I say is not covered by the injunction whether you call it a meeting or not.

The trial court did not find any evidence of the distribution of handbills at all.

In fact, it said that there was no evidence, page 72 of the record, “While there is no evidence that pamphlet was redistributed, the writ of injunction says distribute further handbills announcing such meetings as were distributed.”

Then he referred to the copy of the Thunderbolt which is in the record and which does not refer to the meeting at all said that he was impressed by the tone and the context of the paper that was admittedly distributed and I simply think that was an artifice on the part of someone to bring home a fact that the meeting was going to be held.

Now, the trial court found that despite the fact that the only evidence was that Fields, when he distributed these copies of the Thunderbolt which did not refer to a meeting, the only evidence was that when he did that, he told the people he distributed to them that the meeting had been called off, it's going to be held in Lipscomb, Alabama where he had permission from the mayor to hold the meeting in public park.

And as I say that he -- one of the witnesses for the defense testified that he went over there to go to the meeting that was held.

The --

Justice John M. Harlan: (Inaudible)

Mr. Marshall: According to -- well, Fields was in jail at that time, Mr. Justice Harlan, so he could not have gone there.

The witness, Short, who is at page 60 of the record, testified that he'd been told that the meeting have been changed to Lipscomb and that he went to a meeting there.

That's the only evidence in the record of that.

Lipscomb was beyond the jurisdiction of this Court though.

This court would limit its injunction to the City of Fairfield and of course, the injunction was sought by the City of Fairfield, it didn't purport to limit what Fields could do anywhere else.

Chief Justice Earl Warren: Well, the meeting that was held, do you say it was held with the consent of the mayor of that city, he authorized it to be held in a public park?

Mr. Marshall: That -- that's the evidence, yes, Mr. Chief Justice.

The only evidence --

Justice Hugo L. Black: (Voice Overlap)--

Mr. Marshall: -- that that meeting --

Justice Hugo L. Black: -- court jurisdiction was limited to Fairfield?

Mr. Marshall: The -- I think I misstated that, Mr. Justice Black.

The injunction was limited to the City of Fairfield.

The injunction was sought by the City of Fairfield.

The court that issued the injunction was a court of Jefferson County so I suppose its jurisdiction extends throughout the county.

I'm not sure whether Lipscomb's in Jefferson County or not, Mr. Justice Black.

Justice Potter Stewart: But how did the -- was Fields in jail as a result of this --

Mr. Marshall: He was arrested --

Justice Potter Stewart: -- violation of this injunction?

Mr. Marshall: He was arrested at the locality where the meeting was to be held.

The meeting was to be held inside a building above a car wash.

That's what the --

Justice Potter Stewart: Yes.

Mr. Marshall: -- handbill said that Fields went out there about half an hour -- before he handed the evidence that I've just discussed with you.

Justice Potter Stewart: And so he -- he was then arrested and --

Mr. Marshall: He was arrested there.

Justice Potter Stewart: -- put in jail and not let out on bond.

Mr. Marshall: Well, I don't know whether they asked for bond or not, Mr. Justice Stewart.

That isn't in the record.

He was arrested by the officer Chester Poke whose testimony appears in the record and the circumstances under which he was arrested.

Justice John M. Harlan: How was he charged, I missed the notice, disorderly conducts charge?

Mr. Marshall: Not that I know of, Mr. Justice Harlan.

It is involved here if there was.

Justice Tom C. Clark: Didn't they have a (Inaudible) at the meeting?

Mr. Marshall: They didn't have a meeting, Mr. Justice Clark.

Justice Tom C. Clark: Did the clerk (Inaudible)?

Mr. Marshall: But he was arrested -- he was arrested before the time the meeting was to be held.

He was arrested and removed from the scene.

I don't know.

The record doesn't show what happened after that at that place.

Justice Tom C. Clark: (Inaudible)

Mr. Marshall: No, it doesn't, Mr. Justice Clark.

The -- I think --

Justice Hugo L. Black: (Voice Overlap) apparent -- it is apparent to the scene under arrest, is that what you just said?

Mr. Marshall: He was taken from the scene under arrest.

Justice Hugo L. Black: Taken from it.

Mr. Marshall: The Supreme Court of Alabama did not review the evidence as such.

It did indicate in its opinion that it thought that there was evidence -- that there -- that there is evidence to support the finding that they did violate the terms of the temporary injunction, but they did not discuss what evidence that was and they said -- in saying that the Court does not review questions of fact but only questions of law.

I take it by that that the Supreme Court of Alabama, in fact, applied the Thompson Rule itself and came to conclusion contrary to the one that I urge on this Court.

The rest of the opinion of the Supreme Court of Alabama is concerned with the question of whether or not Fields had a right to test the validity of the order by disobeying it under the United Mine Workers case.

The short of the matter, may it please the Court, is that I think this record conclusively shows that there was no evidence at all that either Fields or Lyons did what they were enjoined from doing and that on the contrary, the evidence is all the other way that they obeyed the injunction.

They did not --

Justice Tom C. Clark: Isn't that the Thunderbolt?

Mr. Marshall: Excuse me, Mr. --

Justice Tom C. Clark: (Inaudible) the Thunderbolt (Inaudible)?

Mr. Marshall: Yes, they both passed out copies of the Thunderbolt.

Justice Tom C. Clark: Wasn't that a copy of the (Inaudible) in the Thunderbolt?

Mr. Marshall: No, there was not, Mr. Justice Clark.

The Thunderbolt is in the record.

It -- it has nothing to do with this meeting at all.

It has -- doesn't mention it, doesn't refer to it.

It was the -- Mr. Wulf said that's the party publication, it's distributed to whoever wants to get it.

Extremely inflammatory and offensive newspaper but it had nothing to do with having a meeting.

Justice Arthur J. Goldberg: I assume, however, that what was talked about under the Thunderbolt would've been the subject (Inaudible), do you say so, General?

Mr. Marshall: Well, I think, Mr. Justice Goldberg, that -- I think that's a fair assumption from the handbill.

The handbill is also a very offensive document and I -- I would --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Marshall: The handbill that announced the meeting, the injunction again -- was against holding the meeting as announced, enjoining and restraining it in them from holding the said meeting at said time and place and from distributing said handbills in the City of Fairfield, Alabama.

Justice Byron R. White: Do you think (Inaudible)?

Mr. Marshall: But Mr. Justice White, I -- I don't want to argue over the question whether or not this group of people outside the building was a meeting or not.

But if it was a meeting, it wasn't the meeting that was enjoined by this injunction because if -- if it was a meeting at all, it was a meeting to call off the meeting that was enjoined.

All of the testimony is that way.

Justice Byron R. White: (Inaudible)

Mr. Marshall: That's right.

He did do that, Mr. Justice White.

Justice Byron R. White: (Inaudible)

Mr. Marshall: But I -- I would suppose -- I would suppose whatever the answer is to the questions that Mr. Wulf discussed and whatever the effect of the Mine Workers case on this and whatever the effect of the First Amendment on it, that you have to take an injunction of this sort which does restrain a meeting that has and then does restraint speech and you have to interpret it within its term as narrowly as you can.

Justice William J. Brennan: Are you saying was that -- there was (Inaudible) you say that Fields was arrested.

Mr. Marshall: Well, the --

Justice William J. Brennan: (Inaudible) early of the scheduled time.

Mr. Marshall: The -- the testimony the policemen, one said 7:30 and one said quarter of 8, the meeting was scheduled for 8.

So --

Justice William J. Brennan: In any event --

Mr. Marshall: -- it was preliminary, yes, Mr. Justice Brennan.

Justice William J. Brennan: In any event, if there was a meeting, it was some meeting in an hour other than the scheduled meeting and it was only the scheduled meeting that was enjoined and your suggestion is that it is against the Constitution by (Inaudible).

It ought to be given the strict interpretation of the extent of the injunction.

Mr. Marshall: That's correct, Mr. Justice Brennan.

Particularly since the evidence not only shows that there was no meeting held but that he told people he rescheduled it for another place whether it wasn't enjoined.

It wasn't just that he met there and -- and sort had made a speech and passed out the handbills outside the building instead of inside.

The evidence is all that he told everyone that came there that the meeting had been called off and rescheduled for a place that was not covered by the injunction.

Chief Justice Earl Warren: And did I understand you to say that 40 of the 52 people that we know were there were police officers?

Mr. Marshall: Well, Fields testified there were about 40 policemen, Mr. Chief Justice, that's at record 49.

The Bazemore police officer who was there, who was named Morris, testified that there were 12 or 15 officers from Bazemore, that's at record page 28.

Now Bazemore is in adjoining community, so that they were there just to supplement Fairfield Police and so I assume there, at least a good many Fairfield police there in addition to the Bazemore police who where there on roam.

Justice Tom C. Clark: How many people altogether?

Mr. Marshall: The record does not show that, Mr. Justice Clark.

The -- the most -- most -- the -- the testimony that would most support the view that the meeting was held was that there was a good crowd and that was what -- that's how Morris described it, a fairly good crowd, record page (Voice Overlap).

Justice Tom C. Clark: Your position is that prior to the injunction, before he was served, he had been passing out the handbills and that the handbills said to come to this particular place at 8 o'clock on that same day.

Whereupon he was served with the injunction that he's then quit passing out the handbills but half an hour before the meeting, he went over, you say, to tell the people that the meeting was going to be held in a different place.

Mr. Marshall: That's correct, Mr. Justice Clark, that's all the evidence of what he did there.

Justice Tom C. Clark: And what he passed out was Thunderbolts which had none -- no reference to the meeting.

Mr. Marshall: That's right, Mr. Justice Clark.

That is -- is what the record shows and our contention is that on the basis of that record, consistently with the Thompson and Garner cases, he cannot constitutionally be convicted of criminal contempt of court.

Justice Tom C. Clark: Under Thompson.

Mr. Marshall: That's right, Mr. Justice Clark.

So I -- I do not reach the other issues.

Chief Justice Earl Warren: Very well.

Mr. Parsons.

Argument of Frank B. Parsons

Mr. Frank B. Parsons: Mr. Chief Justice, may it please the Court.

Appellants in their opening statement said that or mentioned two questions; one, may a city issue an injunction to suppress in advance on being -- an order to preserve (Inaudible) of the status quo.

I think that the question might better be stated, may a city issue an injunction to suppress in advance a meeting to preserve the peace and good order of the city.

Appellants were asking the Court in this case to say that a person may decide for himself whether or not he will obey an injunction.

Chief Justice Earl Warren: Mr. Parsons, would it interfere with your -- your argument if we ask you to address yourself to the point that the Attorney General has just --

Mr. Frank B. Parsons: I'll be glad to (Voice Overlap).

Chief Justice Earl Warren: -- just freshen our mind now and might not be freshen our mind when you get into the other subject.

Mr. Frank B. Parsons: I appreciate that, Your Honor.

Yes.

The -- the other question was whether or not there is sufficient evidence to uphold the conviction of -- of contempt -- of the finding of contempt.

Now, in that -- in connection with that, it's my contention and our position that the Court must take into consideration the whole of this thing.

We ask you to consider and considering that question, the handbill that had been handed out, the handbill that precipitated this action of the city.

Now, if -- if Your Honors will examine that handbill, you will see it has already been classified as a -- that it is a highly inflammatory and objectionable piece of paper.

It was handed out indiscriminately in our city.

It -- it worried, it frightened our officials and they -- they took this action.

Now, Fields in his testimony said that this handbill accurately reflected the tone of the meeting that was called on a handbill, that it accurately reflected the approach that would be taken to the subjects to be discussed at the meeting announced by the handbill.

Now, it's true enough that they came or Fields came, he didn't send someone else, he came himself after having been served with the injunction, he came himself and Lyons came who was an employee of the -- of the National States Rights Party and just shortly prior to the meeting, he mixed or -- or mingled with the crowd within among the crowd, spoke to them as he says telling them that the meeting was to be at another place over in Lipscomb, other city in the Bazemore cutoff and he handed out the Thunderbolt.

Now, let's go to this question of how many people were there.

Chief Morris says as -- as the Attorney General says that -- Mr. Marshall says that there was a large crowd across the street.

This crowd was across the street.

If you examine the testimony of the officers who testified, the officers say, “across the street.”

The officers were on the side where the building was.

The crowd was across the street.

I don't want you to get the impression that there were only 52 people there.

Mr. -- Mr. Fields -- Dr. Fields handed out 12 Thunderbolts himself, Mr. Lyons was also is handing out Thunderbolts.

There is nothing in the record to say how many he handed out, but he handed out those Thunderbolts.

Now, the Thunderbolt is filled with the same venom, the same agitation, the same of invitation to disorder and riot of that was foretold in the handbill.

Unknown Speaker: Mr. Parsons, is your argument and in fact is (Inaudible)?

Mr. Frank B. Parsons: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Frank B. Parsons: And -- and they put over the ideas, they did the damage, they did what they set out to do, they did what they were enjoined from doing, if the Court please.

That -- that's the (Inaudible).

This -- the substance of the -- of the Thunderbolt before you, I don't suppose and need me go into it, I'll be glad to direct your attention to (Inaudible).

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Frank B. Parsons: But I don't think it's necessary.

Chief Justice Earl Warren: We have it, thank you.

Mr. Frank B. Parsons: Yes.

So -- so that's our -- that's our theory about this meeting.

We say a meeting was here because that the ideas were put across by communication.

It was not in word but it was in writing and the damage was done.

Now, Mr. Chief Justice may I approach the other angle of the --

Chief Justice Earl Warren: Yes you may.

Mr. Frank B. Parsons: -- at this time.

Chief Justice Earl Warren: Of course.

Mr. Frank B. Parsons: It's our holding that the Court is not going to depart from the principle that an injunction issued by a court having general jurisdiction with equity powers in which your -- they're -- jurisdictions has been aroused or raised by a proper application and in which the parties are before the Court and the subject matter is before the Court that the Court is not -- this Court is not going to see it in such an event that the persons served with the injunction and against to whom the injunction or is -- is directed don't have to in -- or to obey the injunction if they believe in their minds that it -- that the -- the thing enjoined or the act of injunction or the -- the laws out of what the injunction comes are unconstitutional or affect their First Amendment rights or any other rights.

To us, that is a dangerous proposition that is urged upon the Court here because to us, it appears that you are then saying to each man or each person, you be the judge of whether or not -- of what is the law.

And of course, this Court has reserved to itself the question of what is the law and to say to a person that he or she may decide for himself what is the law is to an effect, make no law.

To carry that reasoning on, the criminal might say, “Well, this criminal law in its -- in this particular situation that I find myself is inapplicable to me and I will go ahead and break the law.”

We have anarchy but we have no law.

Now, this -- the -- the Supreme Court of Alabama, in deciding this case or -- or decided it on the basis of the Mine Workers case.

It also decided, as was mentioned here, on the proposition that this is a certiorari.

It was -- the matter was before them on certiorari, that in certiorari, it would only go into the question of law, the question of the jurisdiction of a court.

Of course that involved a question of whether or not there were sufficient facts to uphold the finding of -- of contempt and the Court said that in its judgment there was.

So I want to point out to you to Your Honors, to the Court here that the finding of the Alabama Supreme Court which is appealed to this Court was based on these two propositions of general law and not upon a proposition involving a federal question, either of interpretation of the Federal Constitution or the interpretation of federal statutes.

And that -- therefore, under the authority of Lee versus Thomas, Lee versus Thomas which said that the general well settled rule is that the case coming from a State -- any case coming from a state court, the Supreme Court can consider only federal questions and it can entertain -- it cannot entertain the case unless the decision was against the -- the plaintiff and they are on these questions.

And that is further been applied in cases where it was said that if -- if the finding of the Court is based upon several propositions of one of which is a proposition of general law not involving a federal question and if that proposition standing alone which supports the finding of the Court and that this Court would not entertain the question.

We suggest that that -- for that reason, the Court should leave the findings of the Supreme Court of Alabama and the judgment of the Supreme Court of Alabama where it is.

Now, we further urge --

Unknown Speaker: You don't have -- you don't have to (Inaudible)

Mr. Frank B. Parsons: No, I don't have to contend, I say that it was not considered or -- or that at least it was not the basis of determination of those questions, not the basis of a finding of Court, Your Honor.

Now, I would like the Court to further consider in -- in this case.

Chief Justice Earl Warren: Before you leave that, Mr. Parsons, if we assume for the purpose of argument that this injunction was clearly unconstitutional and I suppose you can -- we can all imagine an injunction that would be clearly unconstitutional, if we assume that, would they still have to obey it?

Mr. Frank B. Parsons: Yes, sir.

It would seem to me if we -- in other words that -- that in -- in order for -- for orderly of -- government, orderly administration recourse to proceed and -- and continue, they would have to obey it and -- and use the appellate practices and provisions made in the various codes to contest it.

A mention was made here of the fact that the Alabama Code provides for hearing to dissolve an injunction on 10 days notice and if -- and you appeal to the Supreme Court on three days notice if the Court is in session at that time and have a hearing in the Supreme Court on the question of whether an injunction should not be dissolved.

Chief Justice Earl Warren: Well, wouldn't that -- might that not lead us to the conclusion that -- that the authorities could stop any kind of a meeting that they wanted to stop without any -- any hour on the part of the individual with a group to -- to have their meeting?

Mr. Frank B. Parsons: Yes sir, except for a right to appeal.

Chief Justice Earl Warren: Yes.

While if -- let's -- let's take a meeting that was clearly within their rights and a judge just said, “Well, you can't have that kind -- kind of a meeting,” but on a face of it, it would be -- it would be clearly an unconstitutional act on his -- his part.

Do you believe that they -- they must still obey the -- the injunction and forego their -- their meeting?

Mr. Frank B. Parsons: Well, sir, we are, of course, again, as we are in this case all the way around, in a position of beginning and ending of rights.

Chief Justice Earl Warren: I beg your pardon? --

Mr. Frank B. Parsons: Now, where -- where rights begin with one and the other end and the others begin.

Chief Justice Earl Warren: Yes.

Mr. Frank B. Parsons: Where – we’re at question, it seems to be that the -- that the -- we -- we've got their question of whether or not the misuse of the power in the instance you speak of that justifies the departure from the orderly procedures of the Court.

It's -- it's a matter of way, which is more important.

Chief Justice Earl Warren: Well, but the only -- only thing I want to know, what was your ultimate position?

Your position I take it then is, no matter how unconstitutional an injunction is that it must be obeyed.

Mr. Frank B. Parsons: It must be obeyed and -- and attacked in an orderly manner and not just (Voice Overlap) --

Chief Justice Earl Warren: That can only be -- only be attacked by the appellate process.

Mr. Frank B. Parsons: Yes, sir that's our position.

Chief Justice Earl Warren: Yes, yes, that's --

Justice Arthur J. Goldberg: Mr. Parsons, in reference to your answer to Mr. Chief Justice (Inaudible) in this case that said (Inaudible)

Mr. Frank B. Parsons: Well, it would be --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frank B. Parsons: It would be my hope that Your Honor would come back to the Mine Workers.

Justice Arthur J. Goldberg: In other words, you're asking us to be considerate and read the (Inaudible).

Mr. Frank B. Parsons: However, I would say this that Green, as I -- as I read it and as I recall it here, the -- the Court found, who was defendant there, because the defendant was not given a hearing. The hearing is set, I think, was only to determine the punishment in that (Inaudible) whether or not he was guilty.

I believe that was a factor there, perhaps, the deciding factor, at least I got that impression.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frank B. Parsons: I still think, Your Honor --

Justice William J. Brennan: Mr. Parsons, I really -- I wonder if you really mean those fuzz.

It's just -- I take it's utterly silly situation that every Catholic in Fairfield on a Saturday night is enjoined from attending mass on a Sunday morning.

Mr. Frank B. Parsons: Something (Inaudible) situation is.

Justice William J. Brennan: Well, now, if you would go so far as to say that the eyes of Catholic would have obeyed them and now they attend mass in Sunday mornings that --

Mr. Frank B. Parsons: Well, Your Honor --

Justice William J. Brennan: -- and do it in appellate court?

Mr. Frank B. Parsons: Your Honor, I think to do other wise is to -- is to start a -- a process of reasoning that can lead to equally ridiculous ends.

I -- I think that the -- the --

Justice William J. Brennan: Then you'd -- then you -- you're telling me you do carry it that far?

Mr. Frank B. Parsons: Well, I'd say -- I'd say -- I think that it would not carry that far because it -- I know that in -- from my own personal knowledge, in Fairfield, the judgment issues such a --

Justice William J. Brennan: Of course, not.

I'm -- I'm --

Mr. Frank B. Parsons: -- wouldn't be reelected.

Justice William J. Brennan: -- I purposely call that improbably.

Mr. Frank B. Parsons: And I think that is a factor in these things, too, this question of --

Justice William J. Brennan: I'm just wondering if you really mean that no matter how unconstitutionally restrained (Voice Overlap) --

Mr. Frank B. Parsons: Well Your Honor, I just don't believe that this -- that that -- I just don't believe this (Inaudible) goes to the extreme that Your Honor puts forward there.

Justice William J. Brennan: But if it did, you'd say I have to obey it.

Mr. Frank B. Parsons: Well, I think so.

It would be consistent about the matter.

I'd also like for the Court to consider the -- the -- another right that is involved here and that is the right of the people involved in the city to enjoy -- peacefully enjoy their homes and to enjoy the use of the streets without molestation of this handbill and the -- and the paper.

It seems to me your design to stir up, uphold one portion of the population or a hot-headed portion of the population against another portion of the population or the city fathers certainly felt so.

The Circuit Court trying the case thought so.

I believe the Supreme Court of Alabama thought so sincerely and the city fathers felt thinking that, that the thing to do was to head it off, to head off a -- a -- this agitation of this effort to support peace and good order in our city or to have waited until after the meeting it take -- take in this course and the (Inaudible) its effect and routing took place in the streets, would have been to lock the barn after the horse was gone.

Justice John M. Harlan: How large the city is (Inaudible)?

Mr. Frank B. Parsons: About 16,000, Your Honor.

Justice Potter Stewart: But it's part of the industrial complex of the Birmingham (Inaudible)

Mr. Frank B. Parsons: Yes, sir, contiguous with Birmingham, Your Honor.

Justice Potter Stewart: An investment cutoff?

Mr. Frank B. Parsons: Yes, sir, investment cutoff, investment cutoff being a division of a county which has a separate court house and separate judges sitting there.

For the things you just asserted just the same, Mr. Justice, based on my ideas.

We -- we earnestly submit that the -- there was evidence to justify the finding of contempt and we earnestly ask the Court to affirm the action of the Alabama Supreme Court.

Justice John M. Harlan: Would you mind stating again what it is you think is the state ground here?

Mr. Frank B. Parsons: The state ground? Yes, sir.

Two grounds, Your Honor, one, that there is an injunction issued by a court of competent jurisdiction and what happened to parties before it and that before it is -- should obey it and resort to orderly appeal procedures to upset it or to test it to that --

Justice Potter Stewart: You say that's -- that's a rule of state law and --

Mr. Frank B. Parsons: I think it's more general law, Your Honor.

Justice Potter Stewart: Well, but specifically, state law and not federal law --

Mr. Frank B. Parsons: Well, I think its federal law, too, Your Honor.

Justice Potter Stewart: -- in answer to Justice Harlan's question.

Mr. Frank B. Parsons: I mean it's -- it's not -- it's not a statute.

It's not a -- it's common law, Your Honor.

Justice Potter Stewart: Alright.

Mr. Frank B. Parsons: My point is common law.

Then --

Justice John M. Harlan: Well, the rule like that has to be tested against federal requirements if there are any (Inaudible)

Mr. Frank B. Parsons: Yes, sir.

It's been the other --

Justice John M. Harlan: Hardly a state ground, is it?

Mr. Frank B. Parsons: Well, I thought it was if my interpretation of it (Voice Overlap)--

Justice John M. Harlan: Well, I just wanted to make sure I understood what you -- what's the second?

Mr. Frank B. Parsons: Yes.

The second one would be that on -- on certiorari, which this was in Alabama Supreme Court, the Court only goes with the question of the jurisdiction of the Court that found the man in contempt, which, of course, would include the question of whether there was enough evidence.

Justice Potter Stewart: Well, now -- now, is there any procedure or -- in Alabama in which you ever brought a review?

Mr. Frank B. Parsons: On -- on appeal?

Justice Potter Stewart: Of a -- of a preliminary injunction?

Mr. Frank B. Parsons: On appeal?

Justice Potter Stewart: Well, they tried to appeal here according to the opinion which I've just read.

Mr. Frank B. Parsons: On certiorari, it means your --

Justice Potter Stewart: They tried to appeal and then their counsel discovered that --

Mr. Frank B. Parsons: Well, appeal --

Justice Potter Stewart: -- he should've -- he should've brought us basically the --

Mr. Frank B. Parsons: Yes, that's --

Justice Potter Stewart: certiorari.

So the court of -- considered it such.

Mr. Frank B. Parsons: Yes.

The -- that wasn't -- he is -- he is appealing the contempt finding.

Now, his testing of the injunction would have been by appeal but the -- which -- which we say he should have not.

Now, instead of thinking -- instead of just ignoring the injunction, he should have appealed it.

That's where we say the -- he went astray, he went wrong.

Justice Potter Stewart: I see.

Mr. Frank B. Parsons: He had the right of appeal.

Justice Potter Stewart: But having done what he did here that has violate the injunction and -- and got himself held at contempt, then the only review --

Mr. Frank B. Parsons: Certiorari.

Justice Potter Stewart: -- he could get -- get was the limited review given by certiorari, is that right?

Mr. Frank B. Parsons: Yes, sir, that is true.

Chief Justice Earl Warren: Mr. Wulf.

Rebuttal of Melvin L. Wulf

Mr. Melvin L. Wulf: May it please the Court.

There's only one point that I would like to discuss very briefly and that is the last one raised about the adequate state ground.

Of course, I understand that doctrine of preliminary to determination whether a state ground is adequate, and whether it's independent of the federal ground and I think it's very plain here that this is not the case and with the Court's opinion last term in Fay versus Noia discussed this at some length in a different kind -- different but related context and Mr. Justice Brennan's opinion that said while the Court is deferred to state absolute grounds so long as they're are not taking evasively discriminatory against federal rights.

And sometimes it's used to differ a state procedure ground only because they made burdens in the vindication of federal rights and I think that's applied with the case here that the so-called rule of state law has -- plays such a heavy burden on the assertion of federal rights that it simply cannot be brought up in terms of being either independent or adequate state ground.

Justice John M. Harlan: You say about (Inaudible) --

Mr. Melvin L. Wulf: Well, that --

Justice John M. Harlan: -- wrong route.

Mr. Melvin L. Wulf: Well, if there was a wrong route, then there were no other routes, as I understand it, Mr. Justice Harlan.

I don't -- well, what the Alabama Supreme Court said was that they -- under its certiorari procedure it would only undertake to review the law and not the facts. And they said that this would also include the question of whether the particular order appealed from was void on its face.

And I think, it could have examined the -- the question that I'm raising here under its certiorari procedure because -- because we're claiming that it was void on its face.

But as I understand the Alabama procedure in a matter like this, if it isn't certiorari -- they -- they were saying that in effect was that they couldn't really raise any substantive questions at all on the -- on the certiorari proceeding (Inaudible) to review a criminal contempt (Voice Overlap).

Justice John M. Harlan: Does it -- does it involve the same Alabama procedural point that we rejected in N.A.A.C.P. against Alabama or something seven years ago?

Mr. Melvin L. Wulf: It's -- it's to say -- the Alabama Supreme Court did quote from its own opinion in NAACP versus Alabama without noting that it had been reversed.

But I think that is somewhat different because what this Court said in NAA versus Alabama was that this was a rule of law in the civil contempt context that the NAA case came up and -- that had never before been applied and that the petitioner there had been adequately forewarned.

I can only repeat what I've already said that the appellees, City of Fairfield's claim that all they were doing here was trying to maintain the peace and good order of the City of Fairfield is hardly -- is no justification whatsoever for the suppression of the meeting which is at issue here and the right of the appellants to exercise and enjoy their First Amendment rights.

If the courts had -- Court has no further questions, I -- best time I'd reason other argument.

Chief Justice Earl Warren: Very well.