Hobbs v. Thompson, No. 30704.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWISDOM, Circuit , DAVIS, , and GOLDBERG, Circuit
Citation448 F.2d 456
PartiesW. J. HOBBS et al., Plaintiffs-Appellants, v. Mayor Ronnie THOMPSON et al., Defendants-Appellees.
Docket NumberNo. 30704.
Decision Date16 September 1971

448 F.2d 456 (1971)

W. J. HOBBS et al., Plaintiffs-Appellants,
v.
Mayor Ronnie THOMPSON et al., Defendants-Appellees.

No. 30704.

United States Court of Appeals, Fifth Circuit.

September 16, 1971.


448 F.2d 457

David L. Mincey, Charles A. Mobley, Deryl D. Dantzler, Macon, Ga., for plaintiffs-appellants; Mincey, Kenmore & Bennett, Macon, Ga., of counsel.

Lawton Miller, City Atty., Macon, Ga., for defendants-appellees.

Before WISDOM, Circuit Judge, DAVIS,* Judge, and GOLDBERG, Circuit Judge.

GOLDBERG, Circuit Judge:

The City of Macon, Georgia, by ordinance, cast a political pall over the electioneering activities of its firemen and policemen. A class composed of Macon firemen, contending that Macon's legislative scheme renders them politically impotent in derogation of their rights under the First Amendment, pleads for federal intervention. After threading our way, we hope cautiously, through recent Supreme Court federal jurisdictional embroidery, we find a constitutional malady and reverse the trial court's judgment which found the Macon provisions constitutionally sound.

I.

Section 79, Rule 2, of the Macon city charter, and section 2-127 of the city's municipal ordinances, provide that no employee of the city's fire department

"shall take an active part in any primary or election, and all such employees are hereby prohibited from contributing any money to any candidate, soliciting votes or prominently identifying themselves in a political race with or against any candidate for office."

Failure to abide by these proscriptions shall subject the employee

"to reprimand, deduction of pay, suspension from duty, reduction in rank, dismissal from the department (or) any one or more of said penalties according to the nature and aggravation of his offense. * * *" Section 2-145.1

Pursuant to this legislative authority the Macon city administration insisted that various individual firemen, including plaintiff Hobbs, remove from their automobiles bumper stickers which evidenced support for a particular candidate in the state's General Assembly primary election. After two firemen were temporarily relieved from duty, all of the firemen ordered to remove their bumper stickers did so under protest. Subsequently, on September 8, 1970, plaintiffs, members of the Macon fire department and Local 634 of the International Association of Firefighters, filed a complaint in federal district court on behalf of themselves and other "members and employees of the Macon Fire Department." Jurisdiction was asserted

448 F.2d 458
under 28 U.S.C.A. § 1343(3),2 based upon a cause of action under 42 U.S.C.A. § 1983.3 The gist of the complaint was that the charter and ordinance provisions which were being enforced against the plaintiffs and the members of their class were unconstitutional in violation of the First Amendment and the due process and equal protection clauses of the Fourteenth Amendment. Plaintiffs prayed for a declaration that the relevant portions of the ordinance and charter were both unconstitutional on their face and as applied and also sought a permanent injunction enjoining defendants, consisting of the Mayor, Aldermen, members of the Aldermanic Fire Committee, Chief and District Chief of the Fire Department, and State Attorney General, from enforcing the applicable Macon legislative provisions

The Attorney General of Georgia was subsequently dismissed as a party on his unopposed motion, but a motion of the other defendants for dismissal of the complaint for failure to state a claim upon which relief could be granted was denied. Proceeding to the merits, the district court upon the basis of stipulated facts held that the challenged ordinance and charter provisions were both facially constitutional and constitutionally applied. While we agree that the district court properly entertained plaintiffs' request for federal relief, we disagree with the determination below that the Macon scheme passes constitutional muster.

II.

The merits of the present controversy raise intriguing and significant problems. However, as a threshold issue, we must determine the propriety of federal equitable intervention, especially in light of recent Supreme Court decisions which have seemingly curtailed the role of federal courts in granting anticipatory relief against state or local action.

The district court, while noting that "it would seem desirable and preferable that * * * litigation attacking municipal ordinances and state statutes, particularly statutes with purely local application, be instituted in state courts," nevertheless held that it was compelled to reach the merits under the teaching of Dombrowski4 and its progeny.5 At the time the district court made this ruling, it was clearly correct in light of our relevant decisions.6 However, since the district court handed down its decision, the Supreme Court has rendered its decisions in the Younger v. Harris sextet7 and Askew v. Hargrave, 1971,

448 F.2d 459
401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196. The relevance of those decisions to the instant case compels us to consider anew the proper role of a federal district court when asked to grant equitable relief against state or municipal ordinances which allegedly infringe First Amendment rights and to determine whether those cases have any forbidding tones or notes to initial federal adjudication of the Macon scheme. Upon examination we conclude that those decisions, while they represent important pronouncements concerning restraint in federal intervention, do not preclude federal consideration of the issues raised in the present case. In order to understand our holding it is necessary to examine in some detail the prior law governing federal relief in First Amendment cases, for it is against the mosaic of this background that the precise contours of Younger and Askew must be shaped. This jurisprudential story is one of tension between the overbreadth doctrine with its emphasis upon accelerated relief, and long-held countervailing equitable notions of deference to state processes

A. The Policies of the Overbreadth Doctrine

The plaintiffs' primary complaint is that the Macon ordinance and charter provisions in question are on their face unconstitutionally vague and overbroad.

At least as early as 1940, in response to the favored status of rights to expression and association in our constitutional scheme, the Supreme Court developed what has become known as the overbreadth doctrine.8 See, e. g., Cantwell v. Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Thornhill v. Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. This method of adjudication, wherein the courts review a particular law on its face without regard to the constitutional status of a particular claimant's conduct, is based on the 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, 1967, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444, quoting NAACP v. Alabama ex rel. Flowers, 1964, 377 U.S. 288, 307, 84 S.Ct. 1302, 12 L.Ed.2d 325. Facial overbreadth scrutiny emphasizes the need to eliminate an overbroad law's deterrent impact on constitutionally protected expressive activity. Dombrowski v. Pfister, supra. "Chilling effect" is a short-hand way of describing this vice of an overbroad law. Since by definition an overbroad statute covers some privileged as well as non-privileged activity, the statutory burden operates as a disincentive to action and creates an in terrorem effect on conduct within the protection of the First Amendment. In the area of speech, the vagueness doctrine, based upon the principle that a statute must not forbid or require "the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application," Connally v. General Constr. Co., 1926, 269 U.S. 385, 46 S.Ct. 126, 70 L. Ed. 322, reflects this same concern. Lack of fair warning to actors or lack of adequate standards to guide enforcers also may lead to a "chill" on privileged activity. A person contemplating action who might be covered by a vague statute is left in doubt as to whether he is covered by the statute and, if so, whether his claim of privilege will be upheld. See, e. g., NAACP v. Button, 1963, 371 U.S. 415, 432-433, 83 S.Ct. 328, 9 L.Ed.2d

448 F.2d 460
405. See also Coates v. Cincinnati, 1971, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214

Rather than await case-by-case excision of a statute's overbreadth or vagueness through review of its application to particular conduct, which would be needlessly time-consuming and ineffective, courts, under the rubric of the overbreadth doctrine, invalidate the statute facially so as to end its deterrence of constitutionally protected activity. Simply to review a statute as applied to the conduct of a particular claimant, while it might permit that individual to escape the statutory burden, would permit the overbroad law to remain as a deterrent to others who, because of fear of statutory reprisals, might forego protected activity rather than test their privilege administratively or judicially.

The overbreadth doctrine, therefore, focuses directly on the need for precision in legislative draftmanship to avoid conflict with First Amendment rights. Even though the interests a statute promotes may justify some infringement upon First Amendment rights, the overbreadth doctrine condemns those means to that legitimate end which comprehend too broad an incursion upon the realm of First Amendment activity. Where a law is substantially overbroad, in that it sweeps within its scope a wide range of both protected and non-protected expressive activity, and where no "readily apparent construction suggests itself as a vehicle for rehabilitating the statute in a...

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91 practice notes
  • Mancuso v. Taft, Civ. A. No. 4751.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 17, 1972
    ...basis standard of review in Mitchell precluded scrutiny of the regulation for overbreadth. To quote from Hobbs v. Thompson, 5 Cir., 448 F.2d 456, "This standard of review, with its almost wholesale deference to the legislature's judgment, would make strict overbreadth scrutiny of the Macon ......
  • Mancuso v. Taft, No. 72-1180.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 20, 1973
    ...a "reasonableness" standard for review of provisions regulating the expressive activity of public employees. See Hobbs v. Thompson, 448 F.2d 456, 471-475 (5th Cir. 1971); Fort v. Civil Service Comm'n, supra; National Ass'n of Letter Carriers v. United States Civil Service Comm'n, 346 F.Supp......
  • Bossier City Medical Suite v. City of Bossier City, Civ. A. No. 79-1336.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • January 21, 1980
    ...remedies. Wells Fargo Armored Service v. Georgia Public Service Commission, 547 F.2d 938, 939 n. 1 (5th Cir. 1977); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Moreno v. Henckel, 431 F.2d 1299 (5th Cir. 1970). As early as 1926, the Supreme Court held that a plaintiff attacking the cons......
  • Wall v. American Optometric Association, Inc., Civ. A. No. 16414
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • October 21, 1974
    ...right under every circumstance is not to be put on ice awaiting the hearing on the anvils of state adjudication." Hobbs v. Thompson, 448 F.2d 456, 462 (5th Cir. VI. EQUITABLE RESTRAINT The second factor we must consider is the general doctrine that a federal court should not interfere with ......
  • Request a trial to view additional results
90 cases
  • Mancuso v. Taft, Civ. A. No. 4751.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 17, 1972
    ...basis standard of review in Mitchell precluded scrutiny of the regulation for overbreadth. To quote from Hobbs v. Thompson, 5 Cir., 448 F.2d 456, "This standard of review, with its almost wholesale deference to the legislature's judgment, would make strict overbreadth scrutiny of the Macon ......
  • Mancuso v. Taft, No. 72-1180.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 20, 1973
    ...a "reasonableness" standard for review of provisions regulating the expressive activity of public employees. See Hobbs v. Thompson, 448 F.2d 456, 471-475 (5th Cir. 1971); Fort v. Civil Service Comm'n, supra; National Ass'n of Letter Carriers v. United States Civil Service Comm'n, 346 F.Supp......
  • Bossier City Medical Suite v. City of Bossier City, Civ. A. No. 79-1336.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • January 21, 1980
    ...remedies. Wells Fargo Armored Service v. Georgia Public Service Commission, 547 F.2d 938, 939 n. 1 (5th Cir. 1977); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Moreno v. Henckel, 431 F.2d 1299 (5th Cir. 1970). As early as 1926, the Supreme Court held that a plaintiff attacking the cons......
  • Wall v. American Optometric Association, Inc., Civ. A. No. 16414
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • October 21, 1974
    ...right under every circumstance is not to be put on ice awaiting the hearing on the anvils of state adjudication." Hobbs v. Thompson, 448 F.2d 456, 462 (5th Cir. VI. EQUITABLE RESTRAINT The second factor we must consider is the general doctrine that a federal court should not interfere with ......
  • Request a trial to view additional results
1 books & journal articles
  • The Hatch Act: The Current Movement for Reform
    • United States
    • Public Personnel Management Nbr. 3-3, May 1974
    • May 1, 1974
    ...H. R. 668, 93 Congress, 1st Session(1973).4. Fort v. Civil Service Commission, 392 P. 2d385, 389(1964).5. Hobbs v. Thompson, 448 F. 2d 456(1971)andMancuso v. Taft, 341 F. Supp. 574(1972).6. National Association of Letter Carriers v. U. S.346 F. Supp. 578(1972).7. U. S. Civil Service Commiss......

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