United States Court of Appeals Fifth Circuit.January 27, 1969406 F.2d 867 (Approx. 16 pages)
406 F.2d 867
United States Court of Appeals Fifth Circuit.
Alfred WRIGHT et al., Appellants, .v The CITY OF MONTGOMERY, ALABAMA, et al., Appellees.
No. 26314.
Jan. 27, 1969.
Attorneys and Law Firms
*868 Morton Stavis, Newark, N. J., William M. Kunstler, Arthur Kinoy, New York City, Alvin J. Bronstein, Cambridge, Mass., Benjamin E. Smith, New Orleans, La., Charles S. Conley, Montgomery, Ala., Dennis J. Roberts, Newark, N.J., for appellants.
Ira DeMent, Matthis W. Piel, Montgomery, Ala., for appellees.
Before JOHN R. BROWN, Chief Judge, AINSWORTH, Circuit Judge, and COMISKEY, District Judge.
Opinion
AINSWORTH, Circuit Judge.
‘Our Constitution protects the right of protest and dissent within broad limits. * * * It broadly protects the right to assemble, to picket, to stage ‘freedom walks' or mass demonstrations, if these activities are peaceable and if the protesters comply with reasonable regulations designed to protect the general public without substantially interfering with effective protest. * * * (However) If the right to protest, to dissent, or to assemble peaceably is exercised so as to violate valid laws reasonably designed and administered to avoid interference with others, the Constitution's guarantees will not shield the protester.'1 (Emphasis added.) Appellants attack the ‘Disorderly Conduct,’ ‘Loitering,’ and ‘Failure to Obey’ ordinances of the City of Montgomery, Alabama,2 as being unconstitutional on their face *869 on the grounds that they are impermissively vague and broad in scope. See, e.g., Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).3 Appellants also seek an injunction against their prosecution in state court under these ordinances. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).4 The District Court denied the requested relief, and we affirm.
The subject matter of this suit has been extensively litigated;5 and, indeed, the present case, despite its difference *870 in title, ‘* * * is an extension of the proceedings with which this Court dealt in Forman v. City of Montgomery, * * *.’ M.D.Ala., 1965, 245 F.Supp. 17, affirmed, 5 Cir., 1966, 355 F.2d 930, cert. denied, 384 U.S. 1009, 86 S.Ct. 1983, 16 L.Ed.2d 1022 (1966), where the appellants unsuccessfully attempted to remove their criminal prosecutions from the state courts to the federal courts pursuant to 28 U.S.C. § 1443. Wright v. City of Montgomery, Alabama, M.D.Ala., 1968, 282 F.Supp. 291, 292. The present phase of this litigation was commenced on November 8, 1966, and on November 9, 1966, the District Court entered an order denying a temporary injunction restraining the state prosecutions. On appeal to this Court, we vacated the order of the District Court and remanded for adjudication of the issues not previously decided in Forman v. City of Montgomery, supra. Upon consideration of our order of remand, the District Court found — and we agree— that the only issues not foreclosed by Forman v. City of Montgomery, supra, are the following:
‘(1) Whether Sections 18, 36 and 59, Chapter 20, Montgomery City Code, are unconstitutional on their face in that they (a) are so vague and lacking in standards as to compel men of ordinary intelligence to guess at their meaning, and/or (b) are so broad in their sweep as to have a chilling and deterring effect on the exercise of First Amendment rights; '(2) Whether this is a proper case for the exercise of federal equity jurisdiction and the granting of an injunction enjoining the prosecution of these plaintiffs under the said statutes, and further enjoining the defendants from the enforcement of or prosecution under the said statutes generally.’ Wright v. City of Montgomery, Alabama, M.D.Ala., 1968, 282 F.Supp. 291, 294.6
*871 I.
The District Court, while inferentially holding that the ordinances in question could be construed narrowly in a manner which would sustain their constitutionality, abstained from ruling on the constitutional questions and on the propriety of an injunction to restrain the state prosecutions. While we find the District Court's reasoning compelling,7 in light of the recent Supreme Court decisions in Cameron v. Johnson, 390 U.S 611, 88 S.Ct. 1335 (1968), and Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391 (1967),8 we proceed to the merits of the present controversy.
In this regard, it is well settled that the state has a legitimate and substantial interest in regulating demonstrations and picketing and, indeed, these forms of expression are subject to greater regulation than ‘pure speech’:
‘The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory *873 application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. * * * Governmental authorities thorities have the duty and responsibility to keep their streets open and available for movement. * * * ‘We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would 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.’ (Emphasis added.)
‘However laudatory, protests have often created problems for officials and have prompted the development of certain state interests that may be invoked to regulate them. These interests are the prevention of riots, disorder, interference with traffic, blockage of sidewalks or entrances to buildings, and disruption of the normal functions of the public facility.’
‘It shall be unlawful for any person in the city to disturb the peace of others by violent, profane, indecent, offensive or boisterous conduct or language, or by conduct calculated to provoke a breach of the peace.'13
The Montgomery ‘Loitering’ and ‘Failure to Obey’ ordinances read as follows:
‘No person, after being warned by a police officer, shall loiter on the sidewalks in the city in front of business establishments, public buildings or houses of worship, nor shall any person sit upon or lean against the walls around residences in the city, without obtaining the consent of the owner, occupant or person in control of such premises.'15 ‘It shall be unlawful for anyone to fail to obey the direction or order of a member of the police department of the city while such member is acting in an official capacity in carrying out his duties.'16
‘Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. (Citations omitted.) It ‘does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.’ Cox v. State of Louisiana, 379 U.S. 536, 559, 579, 85 S.Ct. 453, 466, 469, 476, 13 L.Ed.2d 471, 487 (separate opinion of Mr. Justice Black). * * * ‘The matter is not one which need be exhaustively pursued, however, because, * * * the Alabama Court of Appeals has not read § 1142 literally, but has given to it an explicitly narrowed construction. The ordinance, that court has ruled, ‘is directed at obstructing the free passage over, on or along a street or sidewalk by the manner in which a person accused stands, loiters or walks thereupon. Our decisions make it clear that the mere refusal to move on after a police officer's requesting that a person standing or loitering should do so is not enough *876 to support the offense. * * *’ Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 527, 170 So.2d 424, 426. ‘* * * As so construed, we cannot say that the ordinance is unconstitutional though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied. ’* * * § 1231 of the General City Code, * * * makes it a criminal offense for any person ‘to refuse or fail to comply with any lawful order, signal or direction of a police officer.’ Like the provisions of § 1142 discussed above, the literal terms of this ordinance are so broad as to evoke constitutional doubts of the utmost gravity. But the Alabama Court of Appeals has confined this ordinance to a relatively narrow scope. * * *‘
See also United States v. Jones, 2 Cir., 1966, 365 F.2d 675, 677-678. Thus, we find that the Montgomery ordinances herein attacked as being unconstitutional on their face are unambiguous and within the permissible ambit of state regulatory power, and thus, as construed by the Alabama courts, they are constitutional. While the freedom to protest and to assemble peaceably are vital to the maintenance of democracy and effective government, ‘* * * the exercise of this freedom will be protected and encouraged and may not be diminished (only) so long as the form of its exercise does not involve action which violates laws prescribed to protect others in their peaceful pursuits * * *.’ Fortas, Concerning Dissent and Civil Disobedience, p. 25 (1968).
‘We found such ‘special circumstances' in Dombrowski. The prosecutions there begun and threatened were not, as here, for violation of a statute narrowly regulating conduct which is intertwined with expression, but for alleged violations of various sections of excessively broad Louisiana statutes regulating expression itself * * *. In that context, we held that a case of ‘the threat of irreparable injury required by traditional doctrines of equity’ was made out. 380 U.S., at 490, 85 S.Ct., at 1123. * * * ‘In short, we viewed Dombrowski to be a case presenting a situation of the ‘impropriety *877 of (state officials) invoking the statute in bad faith to impose continuing harassment in order to discourage appellants' activities * * *.’ 380 U.S., at 490, 85 S.Ct. at 1123.'
‘* * * the finding of this Court in Forman, supra, as to the conduct of the plaintiffs is pertinent: ‘It is clearly demonstrated from the evidence * * * that the officials of the City of Montgomery and the State of Alabama, by arresting and prosecuting the petitioners in these cases, were not acting under pretense of preserving segregation and were not acting under any pretense for the purpose of harassing and punishing citizens for the exercise of their constitutional rights * * *. To the contrary, these governmental officials were discharging their duty and responsibility to keep the streets and sidewalks open and reasonably available for normal use. * * * “The conduct of the petitioners was illegal.’ ‘* * * If any of the plaintiffs' activities have been ‘chilled’ by the ordinances in question, these are the types of unlawful activities that society, through its duly constituted authorities, has a right to ‘chill.’ (Emphasis added.) ‘* * * Deterrence of that which society has a right to prevent has always been, and I trust always will be, recognized as a legitimate function of city, state and federal penal statutes.’
‘At the time proceedings were commenced between these parties the ordinances under attack were contained in or reported in Montgomery City Code of 1952. Since that time the Montgomery City Code of 1964 has been adopted. All the ordinances are now collected in Chapter 24 of the 1964 Code.’ Wright v. City of Montgomery, Alabama, M.D.Ala., 1968, 282 F.Supp. 291, 292n.
The facts of this case were outlined in detail in Forman v. City of Montgomery, M.D.Ala., 1965, 245 F.Supp. 17, 19-21, and we, like the District Court, take judicial notice ‘of all proceedings, evidence and conclusions in that case.’ Wright v. City of Montgomery, Alabama, M.D.Ala., 1968, 282 F.Supp. 291, 293. Briefly, the appellants, many of whom are either staff members or are associated with the Student Nonviolent Coordinating Committee (SNCC), came to Montgomery, Alabama, in March 1965 in order to protest against discrimination in the field of voting rights, and subsequently, they were arrested and charged with violating city ordinances. In Criminal Case No. 11,727-N, 7 appellants were arrested on March 11, 1965, and charged with disorderly conduct in violation of Montgomery City Code Ch. 20, § 18. Four of these appellants refused to proceed along a route designated by city police officers and ‘went limp’ and lay down in the middle of the street. Three of these appellants, being refused permission to join the former group, ‘went limp’ on the sidewalk adjacent to the Dexter Avenue Baptist Church, and refused to leave upon being ordered to do so by the police.
In Criminal Case No. 11,728-N, 70 individuals were arrested on March 18, 1965, for failing to obey the orders and directions of a police officer when they picketed and paraded on one of the main streets of Montgomery, blocking traffic for approximately one and onehalf hours.
In Criminal Case No. 11,729-N, 31 individuals were arrested on March 19, 1965, and charged with ‘loitering’ on a sidewalk. These appellants had marched to the Montgomery, Alabama, City Hall, to protest the arrest of the appellants named in Criminal Case No. 11,728-N, and they were permitted to picket for approximately eight hours. They were arrested only after they had ceased picketing and had begun sitting upon and blocking the sidewalks surrounding the City Hall. In Criminal Case No. 11,730-N, city police officers arrested 6 individuals for failing to obey an order of a police officer when they continued to parade and march on Montgomery city streets after having been warned and ordered not to do so.
In Criminal Cases Nos. 11,731-N, 11,732-N and 11,733-N, a total of 51 persons were arrested in three groups for failure to obey police officers. These appellants had been parading and picketing on Montgomery city streets near the State Capitol, and were blocking the regular flow of vehicular and pedestrian traffic. Upon their refusal to remove themselves from the street and to use the sidewalks, they were arrested.
The decision of the District Court to abstain was premised on the ‘hardcore’ nature of the appellants' conduct:
‘In summary, what is now held is that since plaintiffs were engaged in the type of unlawful conduct that goodfaith enforcement of penal ordinances and statutes is designed to ‘chill,’ they cannot now complain as to the ‘chilling effect’ of such ordinances and statutes and the enforcement thereof. Deterrence of that which society has a right to prevent has always been, and I trust always will be, recognized as a legitimate function of city, state and federal penal statutes.'
‘* * * it is readily apparent that abstention serves no legitimate purpose where a statute regulating speech is properly attacked on its face, and where, as here, the conduct charged in the indictments is not within the reach of an acceptable limiting construction readily to be anticipated as the result of a single criminal prosecution and is not the sort of ‘hardcore’ conduct that would obviously be prohibited under any construction.' (Emphasis added.)
The concept of reasonableness, in the context of the permissible scope of statutes regulating demonstrations and marches, has been conceibed of as a balancing of interests between the state and the demonstrators:
‘Demonstrations will sometimes conflict with the state's interest in preventing violence or abuse of property, and the state should be permitted to maintain the free flow of traffic and to insure that public facilities serve the needs and convenience of other citizens. * * * Although Mr. Justice Black apparently feels that the state may impose blanket prohibitions on demonstrations (citing Cox v. State of Louisiana, 379 U.S. 536, 559, 85 S.Ct. 453, 466 (Mr. Justice Black, concurring in part and dissenting in part)), the prevailing view seems to be that the state may impose only ‘reasonable’ restrictions on time, place, duration, or manner (citing Cox v. State of Louisiana, supra (majority opinion)). The ‘reasonableness' of a regulatory measure must necessarily be viewed in terms of the competing interests of the demonstrators and the state.’