Iranian Muslim Organization v. City of San Antonio

Decision Date13 May 1981
Docket NumberNo. B-9850,B-9850
Citation615 S.W.2d 202
PartiesIRANIAN MUSLIM ORGANIZATION et al., Petitioners, v. CITY OF SAN ANTONIO et al., Respondents.
CourtTexas Supreme Court

Louis F. Linden, Houston, for petitioners.

Jane H. Macon, City Atty., Crawford B. Reeder, First Asst. City Atty., San Antonio, for respondents.

SPEARS, Justice.

This suit was filed by a group of Iranian students seeking a mandatory injunction to require the City of San Antonio to issue parade permits allowing them to demonstrate against the presence of the former Shah of Iran at Lackland Air Force Base in San Antonio. The trial court denied a temporary mandatory injunction and the court of civil appeals affirmed. 604 S.W.2d 379. We reverse the judgments below.

On December 3, 1979, about a month after the American hostages were seized in Iran, Ali Seyed Fanai Khayat and other members of the Iranian Muslim Organization (hereinafter referred to as the "Iranians") applied to the City of San Antonio (hereafter "City") for parade permits for two demonstrations. It is undisputed that the demonstrations, to protest against the former Shah of Iran, Rezi Pahlavi, were to be peaceful, as a prior demonstration by the Iranians had been. These applications evoked another application from the Ku Klux Klan to demonstrate at the same time and place as the Iranians. On December 4, the city manager denied these applications and announced that no permits would be issued any persons or groups on the Iranian issue. The Iranians then immediately filed this suit to permanently enjoin the City from interfering with their right of free speech and assembly and to temporarily enjoin the City to grant their parade permit. On December 6, a hearing was held by the district court on a temporary restraining order which was denied.

On December 10, five of the Iranians staged a hunger strike on the steps of City Hall. That demonstration ended two days later when the five Iranians were taken into protective custody by the police after an angry crowd stirred up by two disc jockeys gathered to taunt and threaten the demonstrators.

On December 11, the city council heard the Iranians' appeal from the city manager's decision. The council upheld the manager's action at the conclusion of a public hearing and further banned other demonstrations by passing unanimously the following motion:

... I move the Council uphold the Manager's decision and that permits be denied for public parades and/or demonstrations to the Iranian Muslim Student Association (sic) and others who encompass the cause either pro or con in the Iranian question. 1

Then on December 17, following another hearing, the trial court denied a temporary injunction. The Iranians then appealed to the court of civil appeals which affirmed the trial court.

The court of civil appeals held that the denial of injunctive relief was justified. The court reasoned that because the Shah had already left the United States for Panama, no irreparable injury would occur to the Iranians arising out of their desire to be allowed to demonstrate while the Shah was still in San Antonio. The court concluded that there was "some basis upon which the trial court could have properly held that a mandatory order was not necessary to prevent irreparable injury" and that "the trial court did not abuse its discretion" in denying the temporary injunction.

The freedoms of speech, peaceable assembly and the right of petition, guaranteed by the first amendment to the Constitution of the United States, are basic to the fabric of our liberty. 2 The rights to picket and demonstrate in public places, particularly streets, sidewalks, and parks, are extended first amendment protection. Lehman v. City of Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed 1423 (1939). The Iranians' march, if peaceful and orderly, falls well within the sphere of conduct protected by the first amendment. Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969). The state may reasonably regulate the time, place and manner of the exercise of first amendment rights as necessary to the protection of other compelling public interests, Grayned v. City of Rockford, 408 U.S. 104, 115-16, 92 S.Ct. 2294, 2302-3, 33 L.Ed.2d 222 (1972); Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2nd Cir. 1980); however, limitations on the right to regulate the exercise of first amendment rights are essential, so that when discretion is vested in administrative officials, it must be "appropriate, limited discretion under properly drawn statutes or ordinances." Cox v. Louisiana, supra, 379 U.S. 536, at 558, 85 S.Ct., at 466. Regulations which take the form of prior restraints are subject to particularly exacting judicial scrutiny with a heavy presumption against their constitutional validity. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Organization For a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Carroll v. President and Commr's of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325, 331 (1968); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). As the U.S. Supreme Court said in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976):

We have often approved restriction (on time, place, and manner) provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.

The one form of regulation which has never been approved by the supreme court is to restrict expression on the basis of the content or subject matter of that expression. Hudgens v. NLRB, 424 U.S. 507, 521, 96 S.Ct. 1029, 1039, 47 L.Ed.2d 196 (1976); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Cox v. Louisiana, supra, 379 U.S. 536 at 557, 85 S.Ct. at 465. The court in Mosley, 408 U.S. at 95, 92 S.Ct. at 2290, announced that government not only is forbidden from discriminating between views it finds acceptable and those it finds unacceptable, but "it may not select which issues are worth discussing or debating in public facilities." The court further admonishes that "this court has condemned licensing schemes that lodge broad discretion in a public official to permit speech-related activity," citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) and many others. Moreover, the abhorrence or falsity of a doctrine does not justify its suppression. Collin v. Smith, 578 F.2d 1197, 1201 (7th Cir. 1978).

In the case before us, it is not significant that the permits were denied by the City of San Antonio by motion rather then by ordinance; the effect of the council's action affirming the manager's decision was to deny the issuance of any permit to the Iranians and to others. This action, denying all who would exercise their first amendment rights of speech and assembly on the subject of the Shah's presence is clearly content-based, and " 'thus slips from the neutrality of time, place, and circumstance into a concern about content.' This is never permitted." Mosley, supra, 408 U.S. at 99, 92 S.Ct. at 2292, citing Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 29. That all would-be demonstrating groups were denied permits by the council's action without discrimination does not raise the content ban to the level that would pass constitutional muster. The privilege may be regulated, but not, in the guise of regulation, be abridged or denied. Hague v. C.I.O., supra, 307 U.S. 496 at p. 515-16, 59 S.Ct. at 963-64.

The City attempts to meet its "heavy burden" to legitimate its prior restraint by producing evidence of the fears of the city officials of the possibility that an audience hostile to the demonstrations would inflict physical violence on the Iranian demonstrators based upon confrontations between the Iranians and a hostile audience in the previous demonstration on May 10. The City also cites the potential danger to the American hostages then being held in Iran which might result from reprisals if any of the Iranian demonstrators were injured in the demonstration.

The evidence shows that the Iranian demonstrations were to be peaceful and orderly, and any violence directed against the demonstrators would not be retaliated against in kind. The potential danger feared by the city officials was the public disorder created by the hostile audience. Such fears are not a constitutionally permissible factor to be considered in regulating demonstrations. Gregory v. City of Chicago, supra, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134; Cox v. Louisiana, supra, 379 U.S. at 551, 85 S.Ct. at 462; Hague v. C.I.O., supra, 307 U.S. 496 at 516, 59 S.Ct. 954 at 964. 3 As one writer aptly observed: "(I)t is unthinkable that such a 'heckler's veto' should rise to the dignity of a constitutional principle," justifying a prior restraint on free speech. Blasi, Prior Restraints on Demonstrations, 68 Mich.L.Rev. 1481, at 1510 (1970). Justice Cadena's dissent in the court of civil appeals correctly observes that the City's "evidence" consisted only of speculation about possible reprisals against the fifty hostages. It is clear, however, that "undifferentiated fear of disturbance cannot be the basis of a prior restraint." Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Nor does the "clear and present danger" test, first announced by Justice Holmes in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919)...

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