Davis v. Francois

• Decision Date: 28 May 1968
• Docket Number: No. 25562.,25562.
• Citation: 395 F.2d 730
• Parties: Hall DAVIS et al., Appellants, v. John G. FRANCOIS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

395 F.2d 730 (1968)

Hall DAVIS et al., Appellants, v. John G. FRANCOIS et al., Appellees.

No. 25562.

United States Court of Appeals Fifth Circuit.

May 28, 1968.

Murphy W. Bell, Baton Rouge, La., Jack Greenberg, Charles Stephan Ralston, Charles Jones, New York City, Lolis E. Elie, New Orleans, La., Melvyn Zarr, New York City, Collins, Douglas & Elie, New Orleans, La., for appellants.

Jack P. F. Gremillion, Atty. Gen., Thomas W. McFerrin, Asst. Atty. Gen., Kenneth C. DeJean, Spec. Counsel to Atty. Gen., Jack E. Yelverton, Asst. Atty. Gen., Baton Rouge, La., for appellees.

Before THORNBERRY, AINSWORTH and DYER, Circuit Judges.

THORNBERRY, Circuit Judge:

This appeal is from an order dismissing appellants' suit for declaratory and injunctive relief against the picketing ordinance of Port Allen, Louisiana as violative of the first and fourteenth amendments of the United States Constitution.

Appellants engaged in picketing of the School Board Building in Port Allen to protest the "racist policies of the Board." While these protests were going on, the city authorities passed an ordinance limiting the right to picket as follows:

Section I.

It shall be unlawful for more than two (2) people to picket on private property or on the streets and sidewalks of the City of Port Allen in front of a residence, a place of business, or public building. Said two (2) pickets must stay five (5) feet apart at all times and not obstruct the entrance of any residence, place of business, or public building by individuals or by automobiles.

Section II.

Any person who violates the provisions of this ordinance shall be subject to a fine not exceeding $100.00 or imprisonment for a period not to exceed 30 days, or both. (R. 4)

Pursuant to this ordinance appellants were arrested as they engaged in a peaceful picket of the School Board Building. They filed a petition for removal and the present action simultaneously. In the instant action they asked the district court to enter a declaratory judgment and temporary restraining order and preliminary and permanent injunction against any enforcement of the ordinance and specifically against the arrest or prosecution of appellants or members of their class pursuant to the ordinance. Although appellants alleged that the ordinance had a "chilling effect" on first-amendment rights, the district court invoked the doctrine of abstention, remarking, however, that the ordinance was "not unconstitutional on its face." We reverse and remand.

I.

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.¹ There a state anti-handbill statute was challenged as being void for "over-breadth" 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.

II.

The next consideration is the action to² be required of the district court on remand. Recent decisions of this Circuit reflect the pervasiveness of demonstrations and protests in our society today. See Strother v. Thompson, 5th Cir. 1967, 372 F.2d 654; Guyot v. Pierce, 5th Cir. 1967, 372 F.2d 658; Hamer v. Musselwhite, 5th Cir. 1967, 376 F.2d 479; N.A.A.C.P. v. Thompson, 5th Cir. 1966, 357 F.2d 831; Wooten v. Ohler, 5th Cir. 1962, 303 F.2d 759. The issues posed by these movements are controversial and demand that courts strike an accommodation between liberty and order by reconciling the interest of allowing free expression of ideas in public places with the protection of the public peace and use of public facilities by others. See Niemotko v. State of Maryland, 1951, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267, 269; Thomas v. Collins, 1945, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430.

In adjusting these equally viable values, it is important to keep certain principles in mind. Although it is true that the right to picket and protest has undergone much development since Thornhill v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, there is no doubt that the protection of the first amendment is not limited to "pure speech," but extends instead to the peaceful expression of views by marchers, demonstrations or assemblies.³ These "public issue" demonstrations are important to the individual, Kalvan, The Concept of the Public Forum: Cox v. State of Louisiana, 1065 Sup.Ct.Rev. 1, because in an open society there must be the ability to advocate views in the hope of changing existing preconceptions or convictions. See Terminiello v. City of Chicago, 1949, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Thornhill v. State of Alabama, supra. This need has fostered the accompanying doctrine that the individual must be afforded an appropriate "public forum" for his peaceful protests.⁴ See Guyot v. Pierce, supra, 372 F.2d at 661.

However laudatory, protests have often created problems for officials and have prompted the development of certain state interests that may be invoked to regulate them. These interests are the prevention of riots, disorder, interference with traffic, blockage of sidewalks or entrances to buildings, and disruption of the normal functions of the public facility. See Strother v. Thompson, supra; Guyot v. Pierce, supra; Kelly v. Page, 5 Cir. 1964, 335 F.2d 114.⁵ In Cox v. State of Louisiana, supra, the Supreme Court incorporated these competing interests into several policy statements:

The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. 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. * * * A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. 379 U.S., at 554-555, 85 S.Ct., at 464.

* * * * * *

The conduct which is the subject of this statute — picketing and parading — is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited. Id., at 563, 85 S.Ct., at 480.

* * * * * *

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. Id., at 555; 85 S.Ct. at 464.

Accordingly, although peaceful, orderly demonstrations cannot be restricted simply because they create disturbances, it is clear that the time, place, and manner of the demonstrations are subject to reasonable regulations. See Strother v. Thompson, supra, 372 F.2d at 657; Guyot v. Pierce, supra, 372 F.2d at 659; Note, Regulation of Demonstrations, 80 Harv.L.Rev. 1773, 1774 (1967).

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. In the free-speech cases this issue emerges through the challenge, as here, that the statute on its face is void for overbreadth, "that is, that it offends the constitutional principle that `a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'" Zwickler v. Koota, supra, 88 S.Ct. at 396. 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 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 at 119.

The present ordinance patently violates these precepts. Its application is sweeping: It restricts "public issue picketing" and private picketing;⁶ 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"⁷ because it does not aim specifically at a serious encroachment on a state interest of 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...