J. L. Leflore v. James Robinson

"The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchannelled delegation of legislative powers but upon the danger of tolerating, in the area of the First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." NAACP v. Button, 1963,371 U.S. 415,432-433,83 S.Ct. 328,338,9 L.Ed.2d 405,418(Brennan, J.).

"Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser. Cf. Garrison v. [State of] Louisiana,379 U.S. 64,74-75,85 S.Ct. 209,215,216,13 L.Ed.2d 125,132,133. For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. [State of] Alabama,310 U.S. 88,97-98,60 S.Ct. 736,741-742,84 L.Ed. 1093,1099,1100; NAACP v. Button, supra,371 U.S., at 432-433,83 S.Ct., at 337-338,9 L.Ed.2d at 417,418; cf. Aptheker v. Secretary of State,378 U.S. 500,515-517,84 S.Ct. 1659,1668-1669,12 L.Ed. 2d 992,1002,1003; United States v. Raines,362 U.S. 17,21-22,80 S.Ct. 519,522-523,4 L.Ed.2d 524,529. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the `* * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' NAACP v. Button, supra,371 U.S., at 433,83 S.Ct., at 338,9 L.Ed.2d at 418. If the rule were otherwise, the contours of regulation would have to be hammered out case by case — and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. Cf. Ex parte Young, supra, 209 U.S. [123] at 147-148,Page 93828 S.Ct. [441] at 448-449, 52 L.Ed. [714] at 723, 724."

"The recent Supreme Court decision, Zwickler v. Koota, 1967,389 U.S. 241,88 S.Ct. 391,19 L.Ed.2d 444, confirms that the district court erred in applying the doctrine of abstention. There a state anti-handbill statute was challenged as being void for `overbreadth' and therefore violative of the first-amendment right of free speech. The lower court applied the doctrine of abstention but the Supreme Court reversed and remanded. The Court emphasized the special duty of federal courts to vindicate federal rights, especially when the challenge is that a statute on its face is repugnant to the first amendment. Id.,88 S.Ct. at 395. The Court squarely held that the abstention doctrine is inappropriate for cases in which the statute is justifiably attacked on its face for an `overbreadth' that abridges free expression. Id.,88 S.Ct. at 396, 399." Davis v. Francois, 5 Cir. 1968,395 F.2d 730,732.

"Dombrowskiteaches that the questions of abstention and of injunctivePage 940relief are not the same. * * * We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction."Id. at 254,88 S.Ct. at 399.

"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 application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. * * Governmental authorities 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."

"Those who participate in any demonstration on any sidewalk shall be spaced a distance of not less than ten feet apart; and not more than six persons shall demonstrate at any one time before the same place of business or public facility."

"It should be evident from this discussion that the question presented by the Port Allen ordinance is not whether the city has the power to regulate demonstrations but whether the means chosen to achieve a legitimate end are so sweeping that fundamental personal liberties are stifled. * * * This Circuit has approached this problem by asking whether the state control `is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with the resort to public places.' Guyot v. Pierce, supra 372 F.2d [658] at 661. We have also said that `these rights to picket and to march and to assemble are not to be abridged by arrest or other interferences so long as asserted within the limits of not unreasonably interfering with the right of others to use the sidewalks and streets, to have access to store entrances, and where conducted in such a manner as not to deprive the public of police and fire protection.' See Kelly v. Page, supra, 335 F.2d [114] at 119.

"The present ordinance patently violates these precepts. Its application is sweeping: It restricts `public issue picketing' and private picketing; it restricts picketing on both the sidewalks and streets; it extends to all kinds of facilities in the city though each may present different considerations; it absolutely limits the number of picketers to two regardless of the time, place or circumstances. In so doing it `unduly restricts the right to protest' because it does not aim specifically at a serious encroachment on a state interest or evince any attempt to balance the individual's right to effective communication and the state's interest in peace and harmony. See Thornhill v. Alabama, supra; Carlson v. People of State of California, 1940,310 U.S. 106,60 S.Ct. 746,84 L.Ed. 1104. Thus, this ordinance is not the narrowly drawn regulation that properly restricts the time, place, or manner of the protests. Indeed, it considers only the number of demonstrators and gives no relevance to other factors. Limiting the number to two persons, regardless of the time, place and circumstances, is especially restrictive when coupled with the fact that the ordinance covers all kinds of buildings. It takes little imagination to see that two picketers before some buildings would be useless. Since the right to freedom of speech contemplates effective communication, this statute denies demonstrators many meaningful methods of expression. See Saia v. People of State of New York, 1948,334 U.S. 558,68 S.Ct. 1148,92 L.Ed. 1574. Moreover, the statute confines the number of protesters to two at any building without indicating that any more would necessarily cause riots, block the streets, sidewalks, or entrances to the buildings. These limitations are unreasonable because there is no legitimate state interest demanding that there never be more than two persons picketing or demonstrating at any of these places. Consequently, in attaining a permissible end, the city has exercised its power in a way that unduly infringes on protected freedom by allowing punishment for the fair exercise of first-amendment rights. See Edwards v. South Carolina, [372 U.S. 229,83 S.Ct. 680,9 L.Ed.2d 697,] supra. Thus under the guise of regulating conduct reachable by the police power it has permitted punishment for the expression of unpopular views. See Thornhill v. State of Alabama, supra; Guyot v. Pierce, supra [372 F.2d] atPage 942662; Cottonreader v. Johnson, M.D. Ala. 1966,252 F. Supp. 492, 497." Davis v. Francois,supra,395 F.2d at 734-36(footnotes omitted). Cf. In Re Wright, M.D.Ala. 1965,251 F. Supp. 880(identical ordinance held invalid as applied).

"Any person comprising a part of any unlawful assembly on any street or any public place who, after being duly commanded to disperse as provided by section 14-12, willfully and intentionally fails to do so shall, upon conviction, be punished as provided in section 1-4."

"Unlawful assembly. An assembly which is unlawful according to the common law of England, or section 407, Title 14, Code of Alabama, as amended, or any other state act or statute."

"two or more persons [who] meet together to commit a breach of the peace, or to do any other unlawful act. * *"

"`[A] violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence * * *, it includes any violation of any law enacted to preserve peace and good order. * * * It is not necessary that the peace be actuallyPage 943broken to lay the foundation for a prosecution for this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense. * * *

"`By "peace" as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members * * *.'"

"For several reasons, we conclude that section 437 cannot be construed alone or, for that matter, only in light of State court interpretations narrowing its application.Cf. Wright v. City of Montgomery, 5 Cir. 1969,406 F.2d 867[Jan. 27, 1969]. Alabama criminal procedure must also be taken into consideration.

"First, we note that the definition of a `vagrant' is used disjunctively,i.e.,a person merely falling within the scope of but one of thirteen subsections in section 437 may be found guilty of the criminal offense. Brannon v. State, 1917,16 Ala. App. 259,76 So. 991. Second, a complaint is sufficient, under current Alabama procedure, if it simply charges that `A.B. is a vagrant.'Seenote 6,supra. Third, we note that proof of vagrancy need only be adduced at trial under any one of the thirteen subsections under which the State chooses to prosecute. Flandell v. State, 1944,31 Ala. App. 520,19 So.2d 401. Fourth, Alabama criminal procedure does not provide an accused with a right to a bill of particulars whereby he may narrow the application of section 437 to the precise subsections to be applied against him.Seenote 6,supra. Collier v. State, 1918,16 Ala. App. 425,78 So. 419.

"In light of the interaction of the substantive statutory offense and Alabama criminal procedure, we find it necessary to consider but one of the numerous constitutional challenges to the statute, alleged by plaintiffs in both cases.

"We hold and declare that section 437 of Tit. 14, Code of Alabama, 1940 in its entirety, when considered with applicable Alabama criminal procedural law, is so vague that it violates the fair notice requirements of due process guaranteed by the Fourteenth Amendment to the Constitution of the United States, and is unconstitutional and void."Id. at 271 (footnotes omitted).

"(3) `Parade' is any formal public procession, march, ceremony, show, exhibition, pageant, or a group of persons or of vehicles containing persons moving onward in an orderly, ceremonious, or solemn procession, or any similar display in or upon any street, park or other public place in the City."

"(1) The conduct of the parade will not substantially interrupt the safe and orderly movement of other traffic contiguous to its route.Page 945(2) The conduct of the parade will not require the diversion of so great a number of police officers of the City to properly police the line of movement and the areas contiguous thereto as to prevent normal police protection to the City;

(3) The conduct of such parade will not require the diversion of so great a number of ambulances as to prevent normal ambulance service to portions of the City other than that to be occupied by the proposed line of march and areas contiguous thereto;

(4) The concentration of persons, animals and vehicles at assembly points of the parade will not unduly interfere with proper fire and police protection of, or ambulance service to, areas contigious to such assembly areas;

(5) The conduct of such parade will not interfere with the movement of fire-fighting equipment enroute to a fire;

(6) The conduct of the parade is not reasonably likely to cause injury to persons or property, to provoke disorderly conduct or create a disturbance;"

"Applying the settled rule of our cases, we hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor. As we said in Speiser v. Randall,357 U.S. 513,526,78 S.Ct. 1332,1342,2 L.Ed. 2d 1460, `Where the transcendant value of speech is involved, due process certainly requires * * * that the State bear the burden of persuasion to show that the appellants engaged in criminal speech.' Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor's determination whether a film constitutes protected expression. The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. * * * To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor's view that the film is unprotected, may have a discouraging effect on the exhibitor. See Bantam Books, Inc. v. Sullivan, [372 U.S. 58,83 S.Ct. 631,9 L.Ed.2d 584]. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license."

"It may be suggested, however, that Shuttlesworth's dilemma was of his own making. He could have requested a permit months in advance of Good Friday, thereby allowing Alabama's administrative and judicial machinery the necessary time to operate fully before the date set for the march. But such a suggestion ignores the principle established in Freedman v. Maryland,380 U.S. 51,58-61,85 S.Ct. 734,738-741,13 L.Ed.2d 649,654,655,656(1965), which prohibits the StatesPage 947from requiring persons to invoke unduly cumbersome and time-consuming procedures before they may exercise their constitutional right of expression. Freedman holds that if the State is to protect the public from obscene movies, it must afford exhibitors a speedy administrative or judicial right of review, lest "the victorious exhibitor might find the most propitious opportunity for exhibition [passed]." Id., at 61,85 S.Ct. at 740,13 L.Ed.2d at 656. The Freedman principle is applicable here. The right to assemble peaceably to voice political protest is at least as basic as the right to exhibit a motion picture which may have some aesthetic value. Moreover, slow-moving procedures have a much more severe impact in the instant case than they had in Freedman. Though a movie exhibitor might suffer some financial loss if he were obliged to wait for a year or two while the administrative and judicial mills ground out a result, it is nevertheless quite likely that the public would ultimately see the film. In contrast, timing is of the essence in politics. It is almost impossible to predict the political future; and when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all. To require Shuttlesworth to submit his parade permit application months in advance would place a severe burden upon the exercise of his constitutionally protected rights. Cf. Williams v. Rhodes,393 U.S. 23,33,89 S.Ct. 5,11,21 L.Ed.2d 24,32(1968).

I do not mean to suggest that a State or city may not reasonably require that parade permit applications be submitted early enough to allow the authorities and the judiciary to determine whether the parade proposal is consistent with the important interests respecting the use of the streets which local authority may legitimately protect. But such applications must be handled on an expedited basis so that rights of political expression will not be lost in a maze of cumbersome and slow-moving procedures."

Shuttlesworth v. City of Birmingham, supra,394 U.S. at 162-163,89 S.Ct. at 944-945(footnote omitted).

"The Court has emphasized that `[a] system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' Bantam Books [Inc.] v. Sullivan,372 U.S. 58,70,83 S.Ct. 631,639,9 L.Ed.2d 584,593(1963); Freedman v. Maryland,380 U.S. 51,57,85 S.Ct. 734,738,13 L.Ed. 2d 649,654(1965). And even where this presumption might otherwise be overcome, the Court has insisted upon careful procedural provisions, designed to assure the fullest presentation and consideration of the matter which the circumstances permit. As the Court said in Freedman v. [State of] Maryland, supra, at 58,85 S.Ct. at 739,13 L.Ed.2d at 654, a noncriminal processPage 948of prior restraints upon expression `avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.'

"Measured against these standards, it is clear that the 10-day restraining order in the present case, issued ex parte, without formal or informal notice to the petitioners or any effort to advise them of the proceeding, cannot be sustained. Cf. Marcus v. Search Warrant,367 U.S. 717,731,81 S.Ct. 1708,6 L.Ed.2d 1127,1135(1961); A Quantity of Books v. Kansas,378 U.S. 205,84 S.Ct. 1723,12 L.Ed.2d 809* * *."

"The exercise of the rights of free speech and free assembly cannot be made a crime, nor may those who seek to freely exercise those rights be criminally punished for failure to previously register their intentions with law enforcement officers, in absence of a situation involving clear and present violence, or threat thereof. Advance notice is impossible where the demonstration results from a spontaneous group desire, and, even where there is sufficient time to give the requisite notice, the requirement necessarily destroys the feeling of security from official restraint and deters potential marchers from participating. In short, the administration of a dosage of `preventive medicine' is impermissible in connection with First Amendment rights. These rights are susceptible of restriction `only to prevent grave and immediate danger to [an interest] which the State may lawfully protect.' West Virginia State Board of Education v. Barnette,319 U.S. 624,639,63 S.Ct. 1178,1186,87 L.Ed. 1628,1638, 147 A.L.R. 674."Id. at 934.

"It shall be unlawful for any person to stand, loiter, walk or run upon any street, park, public place or any portion of private property which has been set aside by the owner thereof for the use of customer vehicular travel or parking, so as to obstruct free passage thereon by other persons."

"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."Id. at 91,86 S.Ct. at 214.

"In considering a motion for summary judgment, the trial court must determine whether a genuine issue of material fact exists rather than how that issue should be resolved, and a summary judgment should be granted only when the truth is clear. Lighting Fixture Elec. Sup. Co. v. Continental Ins. Co., 5 Cir., 1969,420 F.2d 1211,1213; United States v. Burket, 5 Cir., 1968,402 F.2d 426,430. Even though the basic facts are undisputed, a summary judgment may be improper if the parties disagree regarding the material factual inferences that properly may be drawn from these facts.See, e.g.,N.L.R.B. v. Smith Industries, Inc., 5 Cir., 1968,403 F.2d 889,893; Keating v. Jones Development of Missouri, Inc., 5 Cir., 1968,398 F.2d 1011, 1013."