Carroll v. President and Commissioners of Princess Anne

• Decision Date: 19 November 1968
• Docket Number: No. 6,6
• Citation: 89 S.Ct. 347,21 L.Ed.2d 325,393 U.S. 175
• Parties: Joseph CARROLL et al., Petitioners, v. PRESIDENT AND COMMISSIONERS OF PRINCESS ANNE et al
• Court: U.S. Supreme Court

393 U.S. 175

89 S.Ct. 347

21 L.Ed.2d 325

Joseph CARROLL et al., Petitioners,

v PRESIDENT AND COMMISSIONERS OF PRINCESS ANNE et al.

No. 6.

Argued Oct. 21, 1968.

Decided Nov. 19, 1968.

Eleanor H. Norton, New York City, and William H. Zinman, Baltimore, Md., for petitioners.

S. Leonard Rottman, Baltimore, Md., and Alexander G. Jones, Princess Anne, Md., for respondents.

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

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 31, in effect extending the restraint for 10 additional months. The court had before it, in addition to the testimony of 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 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 Division 1287 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America v. State of Missouri, 374 U.S. 74, 83 S.Ct. 1657, 10 L.Ed.2d 763 (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, 83 S.Ct., at 1660.

In Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), this Court declined to hold that the case was moot although the two-year cease-and-desist order at issue had expired. It said: 'The question involved in the orders of the Interstate Commerce Commission are usually continuing * * * and these considerations ought not to be, as they might be, defeated, by short terms orders, capable of repetition, yet evading review * * *.' Id., at 515, 31 S.Ct., at 283.

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. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (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.

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 constitution- ally 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 is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.

We do not here challenge the principle that there are special, limited circumstances in which speech is so interlaced with burgeoning violence that it is not protected by the broad guarantee of the First Amendment. In Cantwell v. State of Connecticut, 310 U.S. 296, at 308, 60 S.Ct. 900, at 905, 84 L.Ed. 1213 (1940), this Court said that '(n)o one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot.' See also Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942); Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 294, 61 S.Ct. 552, 555, 85 L.Ed. 836 (1941). Ordinarily, the State's constitutionally permissible interests are adequately served by criminal penalties imposed after freedom to speak has been so grossly abused that its immunity is breached. The impact and consequences of subsequent punishment for such abuse are materially different from those of prior restraint. Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect against abridgment.⁵

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 (1963); Freedman v. State of Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 738, 13 L.Ed.2d 649 (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, a noncriminal process of 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...