Beckerman v. City of Tupelo, 79-3666

• Decision Date: 23 December 1981
• Docket Number: No. 79-3666,79-3666
• Parties: Joan BECKERMAN, et al., Plaintiffs-Appellants, v. CITY OF TUPELO, MISSISSIPPI, A Municipal Corporation, et al., Defendants-Appellees. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 502

664 F.2d 502 Joan BECKERMAN, et al., Plaintiffs-Appellants,
v.
CITY OF TUPELO, MISSISSIPPI, A Municipal Corporation, et
al., Defendants-Appellees. No. 79-3666. United States Court of Appeals,
Fifth Circuit.
Unit A ^* Dec. 23, 1981.

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Ronald W. Lewis, David G. Hill, Oxford, Miss., Robert Rubin, American Civil Liberties Union, Jackson, Miss., for plaintiffs-appellants.

Guy Mitchell, Jr., Thomas D. Murry, Tupelo, Miss., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GEE, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellants, members of the International Committee Against Racism (InCAR), filed suit in district court seeking injunctive relief against the enforcement of parade and sound equipment ordinances enacted by the City of Tupelo, Mississippi. ¹ The parade ordinance contains a permit application system, regulations regarding the conduct of paraders, and exceptions to the ordinance. The sound equipment ordinance also prescribes a permit system and conduct regulations but provides no exceptions. Appellants allege that the ordinances are unconstitutional because they are vague and overbroad and constitute impermissible prior restraints upon freedom of speech. The district court upheld both ordinances in full with the exception of one provision, which was subsequently amended by Tupelo. Appellants appealed the judgment to this court. We reverse the judgment of the district court with respect to all but one of the challenged provisions.

I. STANDING AND JUSTICIABILITY

Appellants challenge the facial validity of various provisions of both the parade and sound equipment ordinances as being vague, overbroad, and prior restraints upon freedom of speech. Although neither the district court nor the appellee has questioned appellants' standing to make these challenges, we find it necessary to address the issue briefly. When a statute is challenged on its face, the facts of the challenging party's case are irrelevant; the court is asked to determine the constitutionality of the statute as written. Nevertheless, the party's claim must meet the constitutional requirements of a "case or controversy" in order to be justiciable.

Because appellants have not been refused a parade permit under the ordinance, their challenges to its constitutionality are somewhat anticipatory. In the First Amendment area, however, courts permit facial challenges to state regulations. See, e. g., Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 819 (5th Cir. 1979). In the case of a licensing statute containing allegedly excessive discretion, facial challenges are permitted because the mere existence of such discretion is unconstitutional. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); ISKCON v. Eaves, 601 F.2d at 823. Appellants need not allege that there has been an abuse of discretion

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as a prerequisite to a facial attack. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). Thus, appellants may challenge the parade licensing statute. Because appellants have been refused a permit under the sound equipment ordinance, they have unquestioned standing to challenge that ordinance.

Appellants have standing to challenge those provisions of both the parade and sound equipment ordinances which regulate the conduct of permittees because they are entitled to fair notice of the conduct the ordinances attempt to prohibit. The fear of punishment for violations of the ordinances may inhibit appellants as well as others who may contemplate holding a parade or using a sound truck in the exercise of their First Amendment rights. This is a sufficient injury to confer standing upon appellants. Reeves v. McConn, 631 F.2d 377, 381 (5th Cir. 1980); ISKCON v. Eaves, 601 F.2d at 822-24.

II. THE PARADE ORDINANCE

A. Section 1(c)(1); Arbitrary discretion? ²

This section of the ordinance authorizes the Chief of Police to deny a permit if he finds that "the conduct of the parade will probably cause injury to persons or property or provoke disorderly conduct or create a disturbance." We discuss the constitutionality of each clause of this section individually.

1. "provoke disorderly conduct"

This clause of § 1(c)(1) authorizes the Chief of Police to deny a parade permit if he determines that the issuance will "provoke disorderly conduct." There are three issues regarding this provision: first, whether it is overbroad because it fails to describe with sufficient specificity and limitation the situations in which a permit may be denied; second, whether it constitutes an impermissible prior restraint upon the exercise of free speech; and third, whether it is void for vagueness.

(a) Overbreadth

Appellants argue that the provision allowing the licensor to deny a permit if he finds that the parade will "provoke disorderly conduct" is overbroad because the term "disorderly conduct" may include activity protected by the First Amendment. A law is overbroad if it "does not aim specifically at evils within the allowable area of control... but sweeps within its ambit other activities that constitute an exercise" of First Amendment rights. Thornhill v. Alabama, 310 U.S. at 97, 60 S.Ct. at 741. A law will not be voided for overbreadth, however, unless its deterrent effect on protected activity is substantial. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). When a licensing statute is challenged as being overbroad, the claim is that the circumstances under which a license may be denied include activity which is protected. The result is that the state achieves indirectly through the denial of a permit what it could not achieve directly through a blanket prohibition of the activity. See generally L. Tribe, American Constitutional Law, § 12-35 (1978). Thus, the purpose of our review will be to determine whether this provision may be applied so as to prohibit protected activity to a substantial degree.

Tupelo's ordinance does not include a definition of disorderly conduct, and because the ordinance was enacted so recently, Mississippi courts have not had an opportunity to supply one. We assume that the meaning of "disorderly conduct" in the ordinance

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is the same as in Mississippi's criminal statute prohibiting disorderly conduct. ³

This definition, however, has been declared overbroad as applied to certain situations. In Thomas v. Mississippi, 380 U.S. 524, 85 S.Ct. 1327, 14 L.Ed.2d 265 (1965), the Supreme Court reversed a conviction under § 2087.5 of the Mississippi Code (the predecessor to § 97-35-3) for disorderly conduct because the statute had been applied so as to criminalize the refusal of a black person to leave a bus station when so requested by a policeman because of the hostility of white people in the terminal. See also Boynton v. Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (1960) (finding a similar Virginia statute unconstitutional). We make no judgment as to the constitutionality of that statute since it is not before us, but we do find that the term "disorderly conduct" as employed in the parade licensing statute is overbroad because it could be applied to deny permits to those seeking to engage in protected activity. The conviction in Thomas v. Mississippi, supra, is just such an example. The disorderly conduct statute has also been used without constitutional justification to convict persons for walking in tandem in an orderly fashion displaying a flag and signs protesting racial discrimination. Brown v. Rayfield, 320 F.2d 96 (5th Cir. 1963), cert. denied, 375 U.S. 902, 84 S.Ct. 191, 11 L.Ed.2d 143 (1963). Decisions also cast doubt upon the validity of several provisions of the disorderly conduct statute without regard to racial situations. See, e. g., Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 331 (1972) (use of vulgar profanity as speaker at a school board meeting as being "a disorderly person"); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (overturning conviction under statute prohibiting use of "opprobrious words or abusive language,"); Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312,

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25 L.Ed.2d 570 (1970) (overturning conviction under statute that prohibited "acting in a disorderly manner to the disturbance of the public peace").

No narrowing construction has been offered by the Tupelo city council or the Mississippi courts. Because we do not sit as a "super" state legislature, we may not impose our own narrowing construction onto the ordinance. Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972); Gooding v. Wilson, 405 U.S. at 520, 92 S.Ct. at 1105. We fully recognize the fact that Tupelo enacted the ordinance in good faith and intends to apply it in a fair manner. We cannot, however, overlook the substantial potential for overbroad application of the ordinance. Therefore, this part of the ordinance is unconstitutional.

(b) Prior Restraint

Appellants also allege that this provision constitutes an impermissible prior restraint on First Amendment freedoms. It has been firmly established as a matter of law that a state may regulate the use of its parks and streets for the protection of the public health, safety, and welfare. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (municipality may require permit for solicitations by charitable organizations); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (permit may be required to parade on city streets); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (city may require permit for solicitation by religious groups)...