Hunter v. Allen
| Decision Date | 14 April 1970 |
| Docket Number | No. 26570.,26570. |
| Citation | 422 F.2d 1158 |
| Parties | Rev. Robert HUNTER, Rev. Elroy Embry, James Gibson, Southern Christian Leadership Conference, Inc., Henry Bass, the Atlanta Workshop in Nonviolence, and all others similarly situated, Plaintiffs-Appellants, v. Ivan ALLEN, Jr., Mayor of the City of Atlanta, Georgia; Herbert T. Jenkins, Police Chief of the City of Atlanta, Georgia; and J. R. Shattles, Police Officer of the City of Atlanta, Georgia, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Howard oore, Jr., Peter E. Rindskopf, Atlanta, Ga., for appellants.
Henry L. Bowden, Martin McFarland, Atlanta, Ga., for appellees.
Before COLEMAN and GODBOLD, Circuit Judges, and SCOTT, District Judge.
Rehearing Denied and Rehearing En Banc Denied April 14, 1970.
This appeal is another round in a series of challenges in federal court on First Amendment grounds to the facial validity of the Atlanta disorderly conduct ordinance. In the first case the ordinance as then written was held unconstitutionally overbroad. Carmichael v. Allen, 267 F.Supp. 985, 997-999 (N.D.Ga.1967) (three-judge court). The ordinance was revised and, as rewritten, is divided into eighteen subsections. 2 Charter, Code of Ordinances & Related Laws of Atlanta, § 20-7, at 1022-1022.1 (1967). The present suit attacks fourteen of the subsections. On cross motions for summary judgment, the district court held that seven of the subsections were unconstitutionally vague or overbroad, that one of the subsections was not properly subject to attack, and that six of the subsections were valid. Hunter v. Allen, 286 F.Supp. 830 (N.D.Ga.1968). This appeal concerns the following five subsections upheld as valid by the court below:1
In the beginning it is appropriate that we reiterate the words of the three-judge district court that considered the Atlanta ordinance in 1967, Carmichael v. Allen, supra, 267 F.Supp. at 992:
Before discussing the issues presented in this case, we think it important to state what is not involved. The case does not involve, or in any way question, the fundamental right of the state of Georgia or the city of Atlanta to prosecute, within their respective spheres, any unlawful act of violence committed either individually or as a member of a mob against a police officer, a city official, or any private citizen.
The facts of the present case are set out in the district court's opinion, 286 F.Supp. at 833-835. Briefly stated, the suit arises out of two separate incidents in which persons physically interposed themselves to prevent the ingress and egress of others. The first incident involved members of the Atlanta Workshop in Non-Violence who blocked the doors of a privately-owned building containing several of Atlanta's Selective Service Boards in protest against the Viet Nam war. The second involved members of the Southern Christian Leadership Conference who protested building construction at an all-Negro high school by barring entry to the site, through the means of sitting in a parked car which blocked an entrance and standing in front of a car which sought to enter. Persons from both groups of protesters were arrested and convicted in Atlanta muncipal court of violating Section 20-7 (q).2 Their cases are now alleged to be pending on petitions for certiorari filed in the Superior Court of Fulton County, Georgia.
Following the convictions, the instant action was filed in the federal district court seeking declaratory and injunctive relief. The gravamen of the complaint was that the disorderly conduct ordinance is vague and overbroad so as to violate the First Amendment guarantees of freedom of speech and assembly. This appeal is from a final judgment entered following the motions for summary judgment.3
The law of vagueness and overbreadth is an amalgam of substantive and procedural considerations, including such matters as federal-state relations, individual standing to raise constitutional questions, and the mechanics of judicial review. See generally, Note (Amsterdam), The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). In order to clarify the issues before us, we set forth at the outset the subject matter to be considered, the scope of our inquiry, and some relevant substantive principles.
Substantive considerations. As the Supreme Court stated in Zwickler v. Koota, 389 U.S. 241, 249-250, 88 S.Ct. 391, 396-397, 19 L.Ed.2d 444, 451 (1967),4 cases involving statutory ambiguity may be divided into at least two categories. The first concerns statutes where the vice is overbreadth, i. e., the conduct proscribed by the statute includes areas of protected freedoms.5 The second category concerns vagueness, where the statute is so ambiguous as to fail to give fair warning of the conduct proscribed.6
Since all words are malleable to some extent,7 the ambiguity necessary to invalidate a statute necessarily is a matter of degree. A comparison of the degree of ambiguity tolerated in the two classes of cases indicates that statutes whose overbreadth impinges upon the exercise of First Amendment rights are subject to more exacting standards of precision than those whose ambiguity is attacked for vagueness. Compare Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) with Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). Therefore, we approach the issue of the validity of the Atlanta ordinance recognizing that "stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser." Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205, 210 (1959).
Scope of inquiry. The distinction between overbreadth and vagueness has procedural as well as substantive implications. The extraordinary federal injunctive power exercised in suits seeking to restrain state prosecutions may be justified where necessary to protect against the "chilling effects" of certain statutes or prosecutions on the exercise of First Amendment rights. See generally Sheridan v. Garrison, 415 F.2d 699 (5th Cir. 1969); Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969).8 Thus the scope of our inquiry into the validity of the ordinance in this case goes no further than the inquiry into chilling effects on First Amendment rights that is the justification for our equitable jurisdiction.9 Where chilling effects may be present, as when the ordinance through overbreadth impinges on protected conduct, or when, while properly regulating First Amendment conduct, it does so in vague, unnecessarily sweeping terms, or when it is used as a vehicle for harassing First Amendment activity,10 injunctive relief may be had. However, in situations where ambiguity does not affect First Amendment rights, as when vagueness allegedly fails to give the fair warning of prohibited conduct required by due process, injunctive relief would not be proper, and federal judicial review must be secured through other channels.
Subject matter. Although the plaintiffs were prosecuted under but two of the subsections of the Atlanta ordinance, they attacked as invalid fourteen of the subsections. The district court ruled that the entire ordinance was subject to attack. 286 F.Supp. at 835. We agree with that determination. Historically Atlanta proscribed disorderly conduct in a single, undivided ordinance, and the record indicates that under the present ordinance the particular subsections under which a case is prosecuted may be determined after arrest. The plaintiffs maintain they are threatened with prosecution under all the challenged subsections. Under these circumstances, the plaintiffs have standing to challenge the entire ordinance. Cf. Dombrowski v. Pfister, 380 U.S. 479, 489, 85 S.Ct. 1116, 1122, 14 L.Ed.2d 22, 30 (1965).11
In light of these substantive and procedural considerations, we turn to the five subsections of the Atlanta ordinance at issue in this appeal. On the merits, all members of the Court conclude that subsections (o), (q), and (r) are valid on their face. As to these subsections we unanimously affirm the district court's judgment. Judges Coleman and Scott also view subsections (a) and (b) as valid on their face, and the judgment of the district court is, therefore, affirmed as to these subsections. Their views as to these subsections are set out in their separate majority opinion. Consequently that portion of the instant opinion which relates to subsections (a) and (b) is a dissent.
Speaking for myself only, it is my view that subsections (a) and (b) are facially invalid. Therefore, I dissent from the view of Judges Coleman and Scott on that issue.
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