SHUTTLESWORTH v. BIRMINGHAM
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Jack Greenberg
Justice Hugo L. Black: Shuttlesworth versus City of Birmingham, number 42.
Alright, Mr. Greenberg, you may proceed.
Mr. Jack Greenberg: Mr. Justice Black and may it please the Court.
This case is here on petition for writ of certiorari to the Supreme Court of Alabama which reversed the Alabama Court of Appeals which in turn had reversed the Circuit Court of Jefferson County which had convicted this petitioner for violating a Birmingham ordinance requiring a permit before a procession or a parade may be held.
The petitioner, Fred Shuttlesworth, was sentenced to 90 days in jail plus 48 days in lieu of paying a fine and cost for parading in violation of this ordinance which appears on page 4 of our brief.
Justice John M. Harlan: When was this conviction, 1963?
Mr. Jack Greenberg: This was in 1963.
Justice John M. Harlan: How in the world is it taken this long to get up?
Mr. Jack Greenberg: Well, Mr. Justice Harlan, the case was tried in the Recorder's Court in May 1963 in the Circuit Court in October 1963.
An appeal was promptly taken to the Alabama Court of Appeals which did not decide the case until 1965.
The State of Alabama then took it to the Alabama Supreme Court which did not decide the case until November 1967 and we promptly took it here.
The time was essentially spent in a very lengthy consideration or the very lengthy time that was consumed while the case was pending before the two Alabama courts.
The ordinance in question which appears on page 4 of our brief states that, “It shall be unlawful to organize or hold or assist in organizing and holding a parade or procession or other public demonstration unless a permit has been secured.”
And then it sets forth standards according to which the permit may be granted or denied.
And those standards include beginning on the very last line on page 4 of our brief, public welfare, peace, safety, health, decency, good order, morals, or convenience.
As I stated, this arose in 1963 and this is what one might call a prototype case.
This is the case of the one petitioner whose conviction has been appealed and there area approximately 1500 other cases pending in the juvenile court and the Circuit Court of Jefferson County awaiting disposition of this case.
The case arose at what one may call a classical type of civil rights march.
Justice Abe Fortas: How many cases did you say are waiting?
Mr. Jack Greenberg: Approximately 1500, about 900 in the juvenile court and 600 in the Circuit Court are being held pending the outcome of this case.
Justice Abe Fortas: How is that possible?
I thought there are only 50 marchers?
Mr. Jack Greenberg: Well, other persons were prosecuted for violation of this ordinance during this -- these has occurred during the series of demonstrations in Birmingham but in 1963 which openly led to the passage of the 1964 Civil Rights Act and there were a series of demonstrations and marches over a period of some time.
And while there were only, there were 52 persons arrested in this particular demonstration, there were 1,500 altogether.
This -- the Civil Rights March was one might call a classical type of civil rights march.
The group of marchers of which petitioners, Shuttlesworth with which he was connected left the church at approximately 2:00 or 2:30 in the afternoon.
They walked in the sidewalks.
They were entirely orderly.
There was no question about that at all.
They proceeded approximately four or somewhat more than four blocks and then they were stopped by police officers who asked whether or not they had a permit.
And when they did not -- when they said they did not have a permit they were arrested.
I might state that the respondent's brief is written in an effort -- were written as if this was some sort of disorderly conduct or breach of the peace case.
The fact is that petitioners were not prosecuted for anything of the sort.
They were prosecuted for parading without a permit.
The opinion of Judge Johnson in the Court of Appeals which has been adopted essentially by the Supreme Court of Alabama is expressed on the fact that petitioners who orderly -- the testimony of police officers is unequivocal that they were orderly.
There was a group of demonst -- there was a group of onlookers.
There is some dispute as to whether or not the onlookers were disorderly.
They were however a discrete group and even the alleged disorder which came out of the conduct of the onlookers occurred after the arrest and it seems that I don't think it can be seriously contended or contended at all that these petitioners acted in violation of any disorderly conduct or breach of the peace statute.
Indeed, they have not been prosecuted for that.
Now, Judge Katz's opinion in the Alabama Court of Appeals which reversed the conviction of the trial court is a lengthy opinion appearing at page 88 of the record however, it is summarized in his conclusion in a brief section on page 143.
And his position was that the permit ordinance is unconstitutional because it is vague and includes such terms as welfare, decency, and good morals which were not ascertained susceptible of any precise meaning.
Relying upon judicial notice of records in several Alabama cases, he held that the pattern of enforcement that is prosecuted in these petitioners for walking down the sidewalk was discriminatory in the sense of Yick Wo against Hopkins.
And he also held this third point that there was no need shown, no state interest shown in enforcing an ordinance of this sort against persons who were merely walking down the sidewalk.
The dissenting opinion of Judge Johnson which was adopted and without any variation really by the Alabama Supreme Court consisted essentially of reconstruction of the statute in the mode of Cox against New Hampshire.
He read the statute and he said, here's the statute contains the words “decency and morals and welfare and the various other vague terms” he said but I read all those terms out of the statutes so those words are no longer there.
And now he said I'm going to read something into the statute.
And after having read that out, he read into the statute of those traffic considerations and considerations that avert to convenience of the public which is the basis of Cox decision and the Supreme Court of Alabama said that's right.
We read out the bad words and read them some good words and therefore the conviction stands.
Now, our position in this case in summary is that under decisions of this Court, it uniformly has been held that a permit ordinance which imposes a prior restraint in First Amendment rights may be disobeyed with impunity if it is unconstitutional on its face and this Court has held that in Staub versus Baxley and Lovell against Griffin and case after case since then.
There seems to be -- it seems to be conceded that the language and question of just to take three of the terms: welfare, decency, and morals are so vague that they aren't unconstitutional.
Indeed, that's why they were read out of the statute by Judge Johnson and by the Alabama Supreme Court.
There is the question of the Cox case.
Our position of the Cox case and I will come to that in a moment.
It is that it is distinguishable and that in event it did not take into account.
It did not discuss certain due process, considerations of fair notice which reveal our central to this petition.
Justice Potter Stewart: Which, excuse me, which Cox case?
Mr. Jack Greenberg: Cox (Voice Overlap), I will be speaking about against Cox against New Hampshire.
Justice Potter Stewart: New Hampshire?
Mr. Jack Greenberg: Yes.
Justice Potter Stewart: There -- you don't incline if there's anything on the constitutional as such state having a permanent requirement for a --
Mr. Jack Greenberg: Oh, No.
No, providing that it meets certain substantive and we might add certain procedural standards and we say that this statute as rewritten even if it were constitutional as rewritten.
First, it cannot be applied to convict this petition or who acted before it was rewritten and secondly, we claim it is not constitutional in any event because it does not provide for a speedy review and certain standards, record keeping, and so forth that would be necessary useful upon review.
Secondly, we claim that five years after the event, the statute cannot be reconstructed without filing motions of fair notice to convict this petitioner would go in a substantive sense distinguished from the procedural sense such a rewritten statute that might by constitutional.
Now, under decisions of this Court as I stated at the outset, a march made without a permit contrary to a regulation requiring a permit is constitutional and is protected by the First Amendment if the permit, ordinance, or regulation is unconstitutional on its face.
Now, it's conceded that this ordinance is unconstitutional on its face and I've seen no arguments serious otherwise made to the contrary.
An alternative would be if the Staub doctrine and the Lovell doctrine were not the law of this Court that dissenters before they marched would have to engage in expensive litigation as in, let us say the Dombrowski case or would have to submit themselves to lengthy administrative proceedings and there would be chill upon free expression.
A petitioner in case such as this would be in a especially grave disadvantage in an administrative proceeding because and in a judicial proceeding because the scope of review on appeal in the Alabama courts is so circumscribed that in dealing with a vague statute, he would have great difficulty in proving just what right of his head been denied.
But this ordinance like the one in the Cox case was construed in the Supreme Court of Alabama for the first time apparently to make it constitutional and it held, but was held below the Cox save the ordinance and save the conviction.
Our position is as I stated before that even if this were the case it could not save the ordinance in the sense that it could convict this petitioner.
We distinguish the Cox case on a variety of grounds.
First of all, in Cox, there was a statute which was essentially blank as to standard and it is conceivable that one might have read that ordinance and he said, well, what is it they mean and reasonably might apply the traffic considerations.
But here's a statute which quite explicitly has other standards that welfare, decency, good order, and so forth and one need not be at a loss to guess what the state means.
The state means these various vague general things which one can't really -- about which one really can't predict whether one is entitled to march or not.
Justice John M. Harlan: And so case have any -- does New Hampshire case have any standard or whatever?
Mr. Jack Greenberg: No.
Justice John M. Harlan: None?
Mr. Jack Greenberg: No, standards.
It just said, you needed a permit.
Justice John M. Harlan: It was Chief Justice Hughes' opinion?
Mr. Jack Greenberg: Yes, that was -- I think it was, yes.
You just said you needed a permit but it did not have any standards in it.
This case on the contrary has a series of vague standards and its while, I would not agree with this but it would be conceivable to say that one might imagine that standards could be imported into a statute which is silent.
I think it is asking a great deal to expect a layman or indeed a lawyer to read out of a statute a series of vague standards then to read into the statute of series of traffic type standards.
Secondly, as we point out in our brief, the Cox case was decided in some of the earlier days of First Amendment jurisprudence in this Court and it may be that the Court at this time was not sufficiently alert to the chilling effect that such a retroactive interpretation might have and further that the Court had not really fully developed its jurisprudence of First Amendment rights to apply to march as in parading or picketing of that sort.
But in any event, even if the statute could be said to be now made constitutional in retrospect of the by reading out and reading in, we say that in a procedural sense, it is not constitutional in the sense of the -- of Bantam Books case and the Interstate Circuit case which says that on First Amendment rights it denied they must be speedy, precise, and efficacious opportunity for review and that none of that exist here ago.
It's not even as reconstructive standards like were not read into the statute.
Justice John M. Harlan: Now, do you know of any case where that doctrine in the obscenity case has been applied to an ordinance -- a valid ordinance otherwise valid ordinance which relates to the control of the streets?
Mr. Jack Greenberg: No, Mr. Justice Harlan but we would say that an a fortiori should apply, perhaps not necessary to a case involving use of the streets but to a case involving what one might call political rights.
Because I think it might be argued that in the case involving a book or a motion picture for example, while it is undesirable and it is unconstitutional to frustrate or delay the publication or the showing of the motion picture that something which involves the political considerations in which timeliness is exceedingly important and the necessity for avoiding delay is crucial as it was in this case.
The Good Friday March had a significance on Good Friday and on Easter Sunday as such that a fortiori that rapid in effect of review notion should apply to this kind of a case, even more so than to a movie case.
But the Cox case, the point we make in addition did not address itself.
Perhaps, it wasn't raised in the case that to the fair notice doctrine.
This petitioner, according to the law as it stood then and as he under any reason besides the degree of the statute had reason to believe that he could march with impunity.
He did not have fair notice that five years later, the statute would be reconstructed in a way which could convict him.
In this Court, not long ago in this case of Bouie against City of Columbia which was one of the “sit-in” cases dealt with the trespass statute and the Court may recall that statute said it was a misdemeanor to enter upon the lands of another after notice from the owner prohibiting entry and the petitioner of that case entered upon the lands.
He did not have notice prohibiting entry.
He was told to leave the Supreme Court of Alabama's, the Supreme Court of South Carolina so that's means the same thing and this Court said no, he did not have fair notice that the retrospect interpretation of the statute would cover this particular situation.
Well, the case us entirely precise, I think the notion of retrospective interpretation to convict without fair notice is applicable in this case as well as in the Bouie case.
I'd like to address for a moment the question of fair procedure which I say I think is crucial in this case because the statute remains unconstitutionally even after rewritten.
There is no regularity, nothing provided for in the ordinance concerning administrative procedure in processing applications.
So far as practices concerned there is no evidence concerning that.
There are no reasons to be given as to where the permit is denied.
There was an effort to develop upon cross-examination of the witness Sarah Nagar (ph) who gave out the permits.
When questioned -- developed when permits are granted and when they are denied and are they given for walking in the sidewalks as distinguished from working in the streets.
That line of questioning was cut-off very soon after it began so that was not even possible to develop this at the trial.
There are no time limits, lengthy or brief.
There are some suggestions about judicial review but as the best we can divide from Alabama law judicial review would then at least involve 30 days for answering the trial court and there are no stated precise periods for appeal from the Supreme Court of Alabama and the scope of review was extremely narrow would be by mandamus or certiorari at which all one reviews is the discretion of the grant or order of the permit and in a statute as vague as this, it would be very difficult to litigate something else of that sort.
So for all these reasons, we submit to the Court that the conviction of petitioner Fred Shuttlesworth should not be permitted to stand that the statute as rewritten does not say that conviction that even if in a substantive sense and as to future defendants that statute might be filed in a procedural sense it is and remains unconstitutional.
Justice Hugo L. Black: Mr. McBee.
Argument of Earl Mcbee
Mr. Earl Mcbee: Mr. Justice Black and may it please the Court.
Some 18 months ago, I believe, I was -- had the privilege of appearing before this Court in reference to the case of Walker versus the City of Birmingham which we think is a closely related case in as much as it deals with the identical parade and of course it deals with and involves the same parties, that is to say the City of Birmingham and in this instance the respondent rather petitioner F.L. Shuttlesworth.
We think that the facts in that case should be considered in this case because they are related and as least we believe that the Court has authority to so consider.
We would like to call attention to the fact that in the City of Birmingham at the time this particular litigation began, there had been a number of mass parades and lead again to the balance and attacks the Police Department City of Birmingham to protect the demonstrators and also to protect the citizens of the City of Birmingham.
On the evening of, the 10th of November -- 10th of April, the city acquired and injunction from the state court enjoying the holding of mass parades in violation of 1159, that's answer the question.
The reaction to that injunction was an immediate denial of any right of the state or any intent of the parties involving the petitioner to pay any attention to the injunction but as a matter of fact, they said that the injunction was not to be respected or not to obeyed but they did not believe in obeying laws that they consider to be opposed to there way of lying.
Justice Potter Stewart: Mr. McBee, there is no issue about any injunction in this case.
It seems to me, you're rearguing the Walker case here, we already won that one --(voice overlap)
Mr. Earl Mcbee: No, sir.
(Voice Overlap) I don't mean to be doing that but I just mean to attract to connect the two cases in this respect that there was an effort on the part of the petitioner here to say that he had been mistreated and misled into the arrest on this occasion and we believe that the facts in the Walker case are at least to some extent relevant.
Justice Potter Stewart: I don't see how any issue of an injunction is in this case.
I didn't understand it to be after having read carefully read your brief and that of your opponent.
Mr. Earl Mcbee: Well, we agree that it is not an issue in the case but we believe, thought at least that the factual situation was relevant.
Justice Potter Stewart: Well this is a conviction for holding a parade without a permit?
Mr. Earl Mcbee: Yes sir, that's true.
Justice Potter Stewart: And has nothing to do with the -- there are no issues here of disorderly conduct, of violence, or defiance of a court order.
None of those things were in this case?
Mr. Earl Mcbee: I believe that's correct that there's no question of any mess conduct on the part of this particular defendants in the sense of any disorderly conduct.
And it won in that case either but they did say that they were going to disobey the law.
Justice Potter Stewart: Disobey a court order and that's not in this case?
Mr. Earl Mcbee: Yes, sir.
And the facts in the case in this particular instance, there's no question about that the evidence clearly shows the violation of the law.
Now, the question of the precedent before the Court in which the Court must consider as we believe in determining the rightfulness or the wrongfulness of the conviction in this case will be among other things of course the Cox case, that's New Hampshire-Cox case.
Now, the New Hampshire-Cox case did not place any sort of restriction upon the issuance of the license.
The license was particularly and fully and completely based upon a monetary consideration plus whatever construe, whatever restrictions they -- might decide it want to put into it.
For example, they could if they wanted to use racial lines or for denying the application.
They could use with each lines to deny their application.
They could also presumably use any other criteria for the denying the application.
In considering the question, and we don't believe that the ordinance in 1159 is any more void and invalid than is the ordinance in the case of Cox because of the fact that there was reference to some action on the part of the Court in connection of the city commission in connection with the various assets -- the various aspects of the police power of the city.
In other words, it does relate to specifically aspects of the police power.
Now, the Supreme Court of Alabama in each ruling which by the way followed the ruling of this Court in the case of Walker versus -- the City of Birmingham versus Walker did hold in line with that case that the ordinance was not unconstitutional.
Now, there's been a question raised as to why this Court of Alabama waived so long.
I have a strong suspicion that probably they were waiting until the Court, this Court made this decision in the Walker case.
And the Court in this case in the Walker case was dealing with the particular ordinance in question and of course was certainly expected and anticipated they would gear some guidelines for the Alabama Court to follow.
I think that there is some misapprehension, at least in the argument of the petitioner in this case as to the significance of the two lines of cases.
Now, we certainly reflect and know that there are some admissible regulations that can be used in connection with parades and other types of actions upon the streets of the cities.
But on the other hand, there is also in the connection with the regular pure speech cases, a less privilege on the part of the local government governing bodies to present and to enforce regulations which restrict or do impair the right of the demonstrators or the people using free speech.
In the Cox case, the Court made it clear that there is a difference in the use of public streets and in pure speech.
If a municipality has authority to control the use of the public streets for parades or processions as on the others, it cannot be denied authority to give consideration without unfair discrimination, time, place and manner in relation to the other proper uses of the streets.
We find the impossible to say the limited authority conferred by the licensing provisions of statutes in question as thus construed by the state court contravened any constitutional right that must be borne in mind please that this statute was construed just as in our case in a conviction situation involving Cox.
And it was construed post the act of -- for which he was convicted that is after which he was convicted.
The conviction was upheld and we think in line with other decisions of this Honorable Court for the reason that when he violated the ordinance, he did so with the fact that it was conceivable that a valid construction could be placed upon the ordinance which would render it valid and which would render it constitutional and he then did at his peril violate the particular constitutional that is particular as it could be made about it by the construction of the courts.
We've come on to the Walker case and of course I think Mr. Greenberg refers to the fact that Lovell and Staub and Freedman, the doctrine of those cases are at odds with the holding of the court in Alabama court in this case.
But however, in the Walker case, we find the reference to Cox versus Louisiana in which the Court said that we emphatically reject the notion that the First and Fourteenth Amendments before the same kind of freedom, those who have communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways as these amendments afford to those who communicate ideas by pure speech.
And at another point in while he walks a case the court said the authority of a municipality to impose regulations in order to assure safety and convenience to people and the use of public and highways has never been regard as inconsistent with several liberties but rather as one of the means of safeguarding is good order in which there are defend.
And then, going on over to the question of this particular ordinance, the generality of the language contained the Birmingham ordinance upon which the injunction was based will unquestionably raised substantial constitutional issue concerning some of its provisions and the citation of a number of cases.
The petitioners however did not even attempt to apply to the Alabama courts from authoritative construction of the ordinance and this we think is very significant.
Had they done so, those courts might have given the licensing authority granting the ordinance in narrow and precise code as did the New Hampshire courts in Cox versus State of New Hampshire and Poulos versus New Hampshire.
Here just as in Cox and Poulos, it could not be assumed that this ordinance was void on its face.
And then going into question of the application of the ordinance, the petitioners also claim they were afraid to dissipate the injunction because of great ordinance in which it was based had been admonished in the past and arbitrated in the right fashion.
These precedents and that is to say the (Inaudible) and other precedents clearly put the petitioner unnoticed they could not bypass all the judicial review and claim that they were entrap or misled as wholly and founded.
A conclusion confirmed by evidence of the record showing that when they petitioner deliberately violate the injunction, they expect to go to jail.
Now, may it please the Court, we think that the significance of that is this.
That the precedent of Cox versus New Hampshire was booked and also Poulos versus New Hampshire was available to the petitioners.
Now, the petitioner in this case at that time he violated the injunction and violated the Ordinance 1159 and this Justice as what (Inaudible) be a precedent which he was informed of should have known about so these list of decisions were known to him or should have known to him and he could not claim entrapment because he did know about those or should have known about them.
And also, the evidence show that they did -- knew they actually did with the expectation of going to jail.
Now, so far as Cox versus New Hampshire is concerned, we find that that case has an also Poulos versus State of New Hampshire has been accepted by the courts with a steady and an unbroken line and I suppose have been cited maybe at least 50,000 times.
There are sound decisions they -- coming on down through of course in 1965 of the Cox versus Louisiana and by the way the decision in the Walker case in 1967 and then the most recent case is Amalgamated Food Employees Union versus Logan Plaza.
And in that case, Mr. Justice Marshall writing for the court and I believe there was concurring opinion and one dissent, says in addition, the first -- the excise of First Amendment rights may be regulated with such exercise was unduly interfered with normal use of the public property by other members of the public with an equal right to access to it.
Thus, it has been held that persons designed to parade along city streets may be required to secure a permit in order that he may an autonomous authorities may be able to limit now and interference with the use of the sidewalks by other members of the public by regulating the time, place, and manner of the parade.
Now, of course as the Supreme Court of Alabama has construed the 1159, that is the ordinance can only be applied in reference to actually the good order and the convenience and use of the streets.
The essential contention as we understand it is being made at this time that the ordinance did not give fair notice.
As a matter of fact, Bouie has been referred to and I believe Lanzetta.
The Bouie case involved a situation where the facts showed an intent to apply an ordinance to a factual situation that it wasn't space designed to accommodate.
For instance, the ordinance was designed to prevent or rather to punish going up on property when you are not to go on it.
It was applied to a situation where the (Inaudible) already own it without the notice being put up and want to get off.
And of course, that construction was not the one that the ordinance on its face show that the possibility of then therefore the courts held that it was not fair notice.
Lanzetta was a situation where anybody who was a member of a gang.
But the gang consisted two or more people which of course was too broad and no one could ever describe what a gang was really and that is know what a gang was within the meaning of the statute.
Now in reference to the question of fair notice and the administrative procedures, here again, the Court in Poulos versus New Hampshire had occasion to deal with that particular and specific problem.
In that case, the ordinance had or rather statute had or ordinance whichever one it was, had been construed by the Supreme Court of New Hampshire and have been approved by the Court by this Court in the opinion written by Mr. Justice, Chief Justice Hughes.
The Court in the Poulos case said that that case had been made for a permit but wrongfully the licensing authorities had refused to grant the permit.
And because they had refused to grant the permit, the defendant had proceeded to violate it.
Now, as he proceeded to go ahead and have his speech of whatever it's going to have without the benefit of the permit.
The question was raised that in this Court that to have put him in that situation to going into a mandamus proceeding would be expensive, would be difficult for him to accomplish and would delay him in his exercise of his freedom of speech and so forth.
The court rejecting that argument that is the New Hampshire Court rejecting the argument and said that that would not be permissible because he had a remedy.
He could have gone into the courts and enforced his right to speak.
This Court considering that question said that that's exactly correct.
He could have gone into court.
He could have presented his wrongful disallowance of the permit and not having followed that procedure which the state courts permitted he therefore, was not entitled protection of the constitutional amendment that he was relying upon.
Justice Hugo L. Black: Mr. McBee.
Mr. Earl Mcbee: Yes, sir?
Justice Hugo L. Black: What was the -- suppose a convention in your city in one of the convention polls adjourned and these many people walked in exactly the same manner as these people did in this case back to their hotel.
Would they be violating the --
Mr. Earl Mcbee: Oh, no sir.
No sir, they would not.
Justice Hugo L. Black: What is the thing then in this case that makes this a violation of the law.
Mr. Earl Mcbee: The ordinance as construed --
Justice Hugo L. Black: What is the thing that these people did that makes them liable to the ordinance where they wouldn't be liable under circumstances I just suggested to you?
Mr. Earl Mcbee: Well, that I was trying to answer that question in saying this that there was, the ordinance does have as construed refers to formal, actual precision type of walks.
They have the same issue in the Cox-New Hampshire case where in that case there were I think three or four or five or six groups or some 10 to 15 walking in single file.
Peaceably there were no question about that.
Nobody raised that question but they did walk in single file and the issue raised was whether or not that amounted to a parade within the meaning of the ordinance.
And of course that was a -- they held that to be a violation of the New Hampshire statute ordinance.
Now, in this case, suppose the court said again, it must be a formal parade and of course the reasons why we think that a permit is required for a demonstration or a parade of this type is simply this.
That the city or the local governing body is required by law by this Court to provide safeguarding procedures and police protection to take care of a possible disorders that might interfere with their right to parade and of course in this instance, if they had no permanent requirement, they would not know where the parade was to be or when was it to be or what route was it to take and we have no information as to what to do in providing the protection.
Justice John M. Harlan: Why wouldn't the same thing occur when they broke up for the convention and went to some other part of the city and walked along the sidewalk in exactly the same manner?
Mr. Earl Mcbee: I don't know of any likelihood of anybody committing disorder in a crowd walking from one event to another event.
I never have heard of that but there is --
Justice John M. Harlan: Well, I understood you to say there was no disorder in this case.
Mr. Earl Mcbee: Well, actually, I don't believe that -- now, of course that the question of the participation of the body of the so-called onlookers.
Now, that's the question really of I think disputed --
Justice John M. Harlan: The so-called what?
Mr. Earl Mcbee: So-called onlookers.
They have recruited these people to come and they have assembled them in the vicinity of the church and while they only about 52 came out of the church in the formal march wearing blue jeans, I believe, the numbers of the onlookers which came along were took up around, I think maybe a 1000 or 1500 and they took up the street and also both sidewalks.
They were blocking those sidewalks.
I mean, they were completely utilizing and completely in mass moving on and preempting the use of both sidewalks.
Justice John M. Harlan: Were they arrested?
Mr. Earl Mcbee: Some of them were but they couldn't catch them, not very many of them.
But those --
Justice John M. Harlan: But they did take all of these who were going peacefully?
Mr. Earl Mcbee: Well, yes and I think but then those that went peacefully were going to be arrested.
That was the part of the procedure.
Justice John M. Harlan: There has to be?
Mr. Earl Mcbee: Yes, sir.
They have recruited people to be arrested and go to jail that's what they came there for.
They intended to do that.
Now, they have purposes in mind, I suppose money-raising was one of the reasons they did it.
I wouldn't of course be certain about it but I would assume that that was for other reasons of their own.
What they did, they did recruit people to come and to march and to be arrested and they were arrested.
Justice Thurgood Marshall: When the case was tried, did they deny that they were parading or intended to parade?
Mr. Earl Mcbee: I think the only case we've tried that is to say now that Recorder's Court trials they didn't take the stand at all with that call.
Justice Hugo L. Black: But it went up to the Circuit Court, didn't it?
Mr. Earl Mcbee: Well now, the only thing is, may it please the COurt, in this case, Mr. Justice Black, there was no -- this is the only case that has been tried as far as I know of these cases.
Justice Hugo L. Black: Well, did it go to the Circuit Court?
Mr. Earl Mcbee: Yes, it went to Circuit Court.
Justice Hugo L. Black: It was tried before a jury?
Mr. Earl Mcbee: Yes, it did.
Justice Hugo L. Black: Did they defend on the ground that they had not paraded on the ground that the law was unconstitutional?
Mr. Earl Mcbee: Well, there main objection was and so far as I know as I recall, there was no series objection, I mean series denial of the fact that they paraded.
Certainly, the evidence was clear that they did.
Justice Hugo L. Black: Without a permit?
Mr. Earl Mcbee: Yes, without a permit.
They made no contention they ever have a permit.
Justice Potter Stewart: But except Mr. McBee, they must have raised it because in the Court of Appeals, Judge Katz's opinion, I'm reading now from the very last paragraph of his very lengthy opinion appearing on 143 of the record here says, “that the city failed to make a case under the purported meaning of Section 1159 of there being a need for the appellant in this case to be covered by a permit to use the sidewalk in company with others.”
Mr. Earl Mcbee: Well, that --
Justice Potter Stewart: And that's a clear holding as I read it, you tell me if I'm mistaken that this, the ordinance at issue here is simply was not applicable to the conduct of this petitioners and if there's that much and then I understand of course that the Supreme Court of Alabama disagreed with that.
Mr. Earl Mcbee: Yes.
Justice Potter Stewart: There's that much room for disagreement as appears that there was here between the Court of Appeals and the Supreme Court doesn't the -- don't the petitioners have a very valid fairly notice argument as to the very meaning and coverage of this ordinance?
Mr. Earl Mcbee: Well, as a matter of fact, they also have notice.
They -- I think there was some, statement made at some point along the line that perhaps because they are on the sidewalk as opposed being in the middle of the street that they probably went out, possibly not violating the ordinance.
But however though, there was in this city code a section which defines the meaning of street to include sidewalk.
Justice Potter Stewart: Well, then --
Mr. Earl Mcbee: It had been in all these years, so there must Mr. Justice Stewart, the Judge Katz either did not know that or had not made an effort to find out because if it was, actually in the law of the city.
Justice Potter Stewart: I don't understand him to be necessarily making a decision between the paved part of the street and the sidewalk part of the public way but rather, just to use the streets in company with others.
As I understand, I think I would gather, perhaps again, I'm wrong that his language could simply be construed 52 people which he elsewhere characterizes in this very lengthy 56-page opinion as about the size of a football squad walking down the street simply is not the kind of procession or parade contemplated by the Birmingham Ordinance.
Now, and he holds that as a matter of -- or in your intermediate Court of Appeals in Alabama and as this Court is clear that the Supreme Court subsequently disagreed.
But if say if there's not much doubt about it, don't the petitioners have a very colorable argument with respect to the notice that the ordinance gave him?
Mr. Earl Mcbee: Of course, we think this -- we think that that Court of Appeals primarily was addressing itself to the idea that it was a street rather sidewalk rather than a street case.
But he did write a very lengthy opinion.
(Voice Overlap) And we frankly think that he would not have written the opinion had he had benefited the Walker case in this Court for his guidance when he wrote that opinion.
But he did write it very lengthy as we know.
Justice Potter Stewart: Well, as a matter of fact, the Walker opinion rather relied on his opinion, didn't it?
At least referred to in the footnote?
Mr. Earl Mcbee: Well, I think (Voice Overlap).
Justice Potter Stewart: To the effect that this (Voice Overlap) has been held to be unconstitutional?
Mr. Earl Mcbee: I think it mentioned the case and said that, of course, it could perhaps be construed to be unconstitutional.
Justice Potter Stewart: He pointed out that it ad been held to be?
Mr. Earl Mcbee: Well, yes, I think it makes him that.
Justice Potter Stewart: And if the -- as support for the proposition that the place of the petitioner is to have gone into the Walker case was to court.
Mr. Earl Mcbee: Ah -- we would like to make one more observation in connection with the organized march and that is to say that an organized march does compete for the use of the sidewalks with other use of the sidewalks on the part of people who have the right to use them and that's the reason why an organized march which is known to be planned requires a permit.
If it didn't have that permit, there would be no opportunity to provide against the overlapping parades and it wouldn't be no opportunity to prevent violence and/or disorder which would result from possible situations of good result.
And of course, in this instance, there was an explosive situation in the City of Birmingham at the time and the police department was in -- was put hard put to it to try to keep the situation from developing into a very, very serious situation.
I believe that my time has ran out.
Justice Hugo L. Black: Very well.
Mr. Earl Mcbee: May I say this though, may it please the Court, since I was here before I would accumulate a little tremor here and some impediment of speech with which I apologize.
Justice Hugo L. Black: Alright.
I'm very sorry to hear that Mr. McBee.
Rebuttal of Jack Greenberg
Mr. Jack Greenberg: We have nothing further to add Your Honor.
Justice Hugo L. Black: Very well.