393 U.S. 175 (1968), 6, Carroll v. President and Commissioners of Princess Anne

Docket Nº:No. 6
Citation:393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325
Party Name:Carroll v. President and Commissioners of Princess Anne
Case Date:November 19, 1968
Court:United States Supreme Court

Page 175

393 U.S. 175 (1968)

89 S.Ct. 347, 21 L.Ed.2d 325



President and Commissioners of Princess Anne

No. 6

United States Supreme Court

Nov. 19, 1968

Argued October 21, 1968



Petitioners, members of the "white supremacist" National States Rights Party, held a public rally in Princess Anne, Maryland, on August 6, 1966, at which aggressively and militantly racist speeches were made to a crowd of both whites and Negroes. It was announced that the rally would be resumed the next night, August 7. That day, the respondents, local officials, obtained an ex parte restraining order from the Somerset County Circuit Court, there having been no notice to or informal communication with petitioners. The order restrained petitioners for 10 days from holding rallies "which will tend to disturb and endanger the citizens of the County," and the August 7 rally was not held. After trial 10 days later, the Circuit Court issued another injunction, extending the effect of the earlier order for 10 months. The Maryland Court of Appeals affirmed the 10-day order, but reversed the 10-month order, holding that "the period of time was unreasonable."


1. The case is not moot. The Maryland Court of Appeals' approval of the 10-day order continues to play a role in the response of local officials to petitioners' efforts to continue their activities in the county. Pp. 178-179.

2. The 10-day restraining order must be set aside because, where the principles guaranteed by the First Amendment and applicable to the States by the Fourteenth are involved, there is no place for such ex parte order, issued without formal or informal notice to petitioners, where no showing is made that it is impossible to serve or notify the opposing parties and to give them an opportunity to participate in an adversary proceeding. Pp. 179-185.

247 Md. 126, 230 A.2d 452, reversed.

Page 176

FORTAS, J., lead opinion

MR. JUSTICE FORTAS delivered the opinion of the Court.

Petitioners are identified with a "white supremacist" organization called the National States Rights Party. They held a public assembly or rally near the courthouse steps in the town of Princess Anne, the county seat of Somerset County, Maryland, in the evening of August 6, 1966. The authorities did not attempt to interfere with the rally. Because of the tense atmosphere which developed as the meeting progressed, about 60 state policemen were brought in, including some from a nearby county. They were held in readiness, but, for tactical reasons, only a few were in evidence at the scene of the rally.

Petitioners' speeches, amplified by a public address system so that they could be heard for several blocks, were aggressively and militantly racist. Their target was primarily Negroes and, secondarily, Jews. It is sufficient to observe, with the court below, that the speakers engaged in deliberately derogatory, insulting, and threatening language, scarcely disguised by protestations of peaceful purposes, and that listeners might well have construed their words as both a provocation to the Negroes in the crowd and an incitement to the whites. The rally continued for something more than an hour, concluding at about 8:25 p.m. The crowd listening to the speeches increased from about 50 at the beginning to about 150, of whom 25% were Negroes.

In the course of the proceedings, it was announced that the rally would be resumed the following night, August 7.1

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On that day, the respondents, officials of Princess Anne and of Somerset County, applied for and obtained a restraining order from the Circuit Court for Somerset County. The proceedings were ex parte, no notice being given to petitioners and, so far as appears, no effort being made informally to communicate with them, although this is expressly contemplated under Maryland procedure.2 The order restrained petitioners for 10 days from holding rallies or meetings in the county "which will tend to disturb and endanger the citizens of the County."3 As a result, the rally scheduled for August 7 was not held. After the trial which took place 10 days later, an injunction was issued by the Circuit Court on August 30, in effect extending the restraint for 10 additional months. The court had before it, in addition to the testimony of [89 S.Ct. 350] witnesses, tape recordings made by the police of the August 6 rally.

On appeal, the Maryland Court of Appeals affirmed the 10-day order, but reversed the 10-month order on the ground that

the period of time was unreasonable, and that it was arbitrary to assume that a clear and present

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danger of civil disturbance and riot would persist for ten months.

Petitioners sought review by this Court, under 28 U.S.C. § 1257(3), asserting that the case is not moot and that the decision of the Maryland Court of Appeals continues to have an adverse effect upon petitioners' rights. We granted certiorari.

We agree with petitioners that the case is not moot. Since 1966, petitioners have sought to continue their activities, including the holding of rallies in Princess Anne and Somerset County, and it appears that the decision of the Maryland Court of Appeals continues to play a substantial role in the response of officials to their activities.4 In these circumstances, our jurisdiction is not at an end.

This is the teaching of Bus Employees v. Missouri, 374 U.S. 74 (1963), which concerned a labor dispute which had led to state seizure of the business. This Court held that, although the seizure had been terminated, the case was not moot, because

the labor dispute [which gave rise to the seizure] remains unresolved. There thus exists . . . not merely the speculative possibility of invocation of the [seizure law] in some future labor dispute, but the presence of an existing unresolved dispute which continues. . . .

Id. at 78.

In Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911), this Court declined to hold that the case was moot although the two-year cease and desist order at

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issue had expired. It said:

The questions involved in the orders of the Interstate Commerce Commission are usually continuing . . . , and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review. . . .

Id. at 515.

These principles are applicable to the present case. The underlying question persists and is agitated by the continuing activities and program of petitioners: whether, by what processes, and to what extent the authorities of the local governments may restrict petitioners in their rallies and public meetings.

This conclusion -- that the question is not moot, and ought to be adjudicated by this Court -- is particularly appropriate in view of this Court's decision in Walker v. Birmingham, 388 U.S. 307 (1967). In that case, the Court held that demonstrators who had proceeded with their protest march in face of the prohibition of an injunctive order against such a march, could not defend contempt charges by asserting the unconstitutionality of the injunction. The proper procedure, it was held, was to seek judicial review of the injunction, and not to disobey it, no matter how well founded their doubts might be as to its validity. Petitioners have here pursued the course indicated by Walker, and, in view of the continuing vitality of petitioners' grievance, we cannot say that their case is moot.

[89 S.Ct. 351] Since the Maryland Court of Appeals reversed the 10-month injunction of August 30, 1966, we do not consider that order. We turn to the constitutional problems raised by the 10-day injunctive order.

The petitioners urge that the injunction constituted a prior restraint on speech, and that it therefore violated the principles of the First Amendment which are applicable to the States by virtue of the Fourteenth Amendment. In any event, they assert, it was not constitutionally

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permissible to restrain petitioners' meetings, because no "clear and present danger" existed.

Respondents, however, argue that the injunctive order in this case should not be considered as a "prior restraint," because it was based upon the events of the preceding evening and was directed at preventing a continuation of those events, and that, even if considered a "prior restraint," issuance of the order was justified by the clear and present danger of riot and disorder deliberately generated by petitioners.

We need not decide the thorny problem of whether, on the facts of this case, an injunction against the announced rally could be justified. The 10-day order here must be set aside because of a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing...

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