Potter Stewart

“ That court, too, declined to consider the petitioners' constitutional attacks upon the injunction and the underlying Birmingham parade ordinance:
'It is to be remembered that petitioners are charged with violating a temporary injunction. We are not reviewing a denial of a motion to dissolve or discharge a temporary injunction. Petitioners did not file any motion to vacate the temporary injunction until after the Friday and Sunday parades. Instead, petitioners deliberately defied the order of the court and did engage in and incite others to engage in mass street parades without a permit. ”

“ State of Kansas is consistent with the rule of law followed by the federal courts. [5]
In the present case, however, we are asked to hold that this rule of law, upon which the Alabama courts relied, was constitutionally impermissible. We are asked to say that the Constitution compelled Alabama to allow the petitioners to violate this injunction, to organize and engage in these mass street parades and demonstrations, without any previous effort on their part to have the injunction dissolved or modified, or any attempt to secure a parade permit in accordance with its terms. ”

“ This Court, in dismissing the writ of error, not only unanimously accepted but fully approved the validity of the rule of state law upon which the judgment of the Kansas court was grounded:
'An injunction duly issuing out of a court of general jurisdiction with equity powers, upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be, even if the error be in the assumption o t he validity of a seeming, but void law going to the merits of the case. ”

“ Kansas had adopted an Industrial Relations Act, the purpose of which in effect was to provide for compulsory arbitration of labor disputes by a neutral administrative tribunal, the 'Court of Industrial Relations.' Pursuant to its jurisdiction to investigate and perhaps improve labor conditions in the coal mining industry, the 'Court' subpoenaed union leaders to appear and testify. ”

“ At least one other petitioner was among the marchers. Some 300 or 400 people from among the onlookers followed in a crowd that occupied the entire width of the street and overflowed onto the sidewalks. Violence occurred. Members of the crowd threw rocks that injured a newspaperman and damaged a police motorcycle.
The next day the city officials who had requested the injunction applied to the state circuit court for an order to show cause why the petitioners should not be held in contempt for violating it. ”

“ The United States Commission on Civil Rights found continuing abuse of civil rights protesters by the Birmingham police, including use of dogs, clubs, and firehoses. 1963 Report of the United States Commission on Civil Rights 114 (Government Printing Office, 1963) . Commissioner Eugene 'Bull' Connor, a self-proclaimed white supremacist (see Congress and the Nation 1945-1964:A Review of Government and Politics in the Postwar Years 1604 (Congressional Quarterly Service, 1965) ) made no secret of his personal attitude toward the rights of Negroes and the decisions of this Court. ”

“ Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the street and parks for communication of views on national questions may be regulated in the interest of all ”

“ For obvious reasons, it was important for the significance of the demonstrations that they be held on those particular dates. A representative of petitioners' organization went to the City Hall and asked 'to see the person or persons in charge to issue permits, permits for parading, picketing, and demonstrating.' She was directed to Public Safety Commissioner Connor, who denied her request for a permit in terms that left no doubt that petitioners were not going to be issued a permit under any circumstances. 'He said, 'No you will not get a permit in Birmingham, Alabama to picket. ”

“ It was alleged as particularly menacing that petitioners were planning to conduct 'kneel-in' demonstrations at churches where their presence was not wanted. The city's police dogs were said to be in danger of their lives. Faced with these recitals, the Circuit Court issued the injunction in the form requested, and in effect ordered petitioners and all other persons having notice of the order to refrain for an unlimited time from carrying on any demonstrations without a permit. ”

“ The Supreme Court of Alabama, finding that the trial court had jurisic tion, applied the same rule of law which was followed here:
'As a general rule, an unconstitutional statute is an absolute nullity and may not form the basis of any legal right or legal proceedings, yet until its unconstitutionality has been judicially declared in appropriate proceedings, no person charged with its observance under an order or decree may disregard or violate the order or the decree with immunity from a charge of contempt of court ”

“ In In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198 (1962) , we reversed a conviction for contempt of a state injunction forbidding labor picketing because the petitioner was not allowed to present evidence that the labor dispute was arguably subject to the jurisdiction of the National Labor Relations Board and hence not subject to state regulation. If an injunction can be challenged on the ground that it deals with a matter arguably subject to the jurisdiction of the National Labor Relations Board, then a fortiori it can be challenged on First Amendment grounds. ”

“ There, a federal court had ordered the public high school in Clinton, Tennessee, to desegregate. Kasper 'arrived from somewhere in the East,' and organized a campaign 'to run the Negroes out of the school.' The federal court issued an ex parte restraining order enjoining Kasper from interfering with desegregation. Relying upon the First Amendment, Kasper harangued a crowd 'to the effect that although he had been served with the restraining order, it did not mean anything * * *.' His conviction for criminal contempt was affirmed by the Court of Appeals for the Sixth Circuit. ”

“ Although a city may regulate the manner of use of its streets and sidewalks in the interest of keeping them open for the movement of traffic, it may not allow local officials unbridled discretion to decide who shall be allowed to parade or picket and who shall not. ”

“ When protest takes the form of mass demonstrations, parades, or picketing on public streets and sidewalks, the free passage of traffic and the prevention of public disorder and violence become important objects of legitimate state concern. As the Court stated, in Cox v. ”

“ The Court concedes that ' (t) he generality of the language contained in the Birmingham parade ordinance upon which the injunction was based would unquestionably raise substantial constitutional issues concerning some of its provisions.' [19] Ante, p. 316. That concession is well-founded but minimal. I believe it is patently unconstitutional on its face. Our decisions have conis tently held that picketing and parading are means of expression protected by the First Amendment, and that the right to picket or parade may not be subjected to the unfettered discretion of local officials. Cox v. ”