LeFlore v. Robinson

• Decision Date: 12 November 1970
• Docket Number: No. 28632.,28632.
• Citation: 434 F.2d 933
• Parties: J. L. LeFLORE et al., Plaintiffs-Appellants, v. James ROBINSON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 933 (1970)

J. L. LeFLORE et al., Plaintiffs-Appellants, v. James ROBINSON et al., Defendants-Appellees.

No. 28632.

United States Court of Appeals, Fifth Circuit.

November 12, 1970.

Jack Greenberg, Jonathan Shapiro, New York City, Charles L. Becton, Charlotte, N. C., Vernon Z. Crawford, Mobile, Ala., for plaintiffs-appellants.

Fred G. Collins, William H. Brigham, Francis A. Poggi, Jr., Asst. City. Atty., T. Raymond Williams, Allan R. Cameron, Mobile, Ala., for defendants-appellees.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

GOLDBERG, Circuit Judge:

As Mobile, Alabama, prepared to crown America's Junior Miss of 1969, the black community intensified its quest for racial equality by engaging in a series of protest demonstrations. One consequence of the resulting turmoil and confusion is a congeries of legal problems relating to ordinances of the City of Mobile and their effect on First Amendment rights. Plaintiffs, who are being prosecuted or threatened with prosecution by Mobile for violations of these ordinances, appeal from the decision of the district court dismissing their plea for federal intervention. Bearing in mind that First Amendment rights are not of paper weight but are made of sterner stuff, we reverse and remand in part.

I.

Omitting historically interesting preludes and sketching only those facts which appear undisputed, we begin with N.O.W.,¹ whose avowed purpose was to secure "equal rights for black people in Mobile." During the Spring of 1969, this organization directed its attention to the policies of the Mobile Municipal Auditorium, soon to be the scene of the nationally televised America's Junior Miss Pageant. Picketing and protesting preceded the pageant, but there were no arrests. On May 1, 1969, the first night of the pageant, this relative tranquility terminated with the arrest of nearly 90 people by the Mobile police for parading without a permit in violation of Mobile, Alabama, Code § 14-051, and obstructing free passage of streets or other public places in violation of Mobile, Alabama, Code § 14-7. Things worsened on May 2nd and 3rd when approximately 250 more people were arrested and charged with unlawful assembly under Mobile, Alabama, Code § 14-11.

On May 5, 1969, plaintiffs filed this action seeking declaratory and injunctive relief on behalf of themselves and other members of their class "who have been subjected to, are presently being subjected to, and who will be subjected to" the application of certain Mobile ordinances. Specifically, plaintiffs sought (1) a declaration that the above ordinances under which charges were pending, and Mobile, Alabama, Code § 14-11, under which charges were threatened, were unconstitutional on their face and as applied; (2) an injunction enjoining all pending prosecutions of plaintiffs and members of their class; and (3) a protective injunction enjoining defendant Mobile officials from interfering in the future with plaintiffs' peaceful protest activity. Plaintiffs argued not only that the Mobile ordinances were unconstitutionally overbroad and vague, but that their protest activity was privileged under the First Amendment and was being abridged in bad faith by the Mobile officials. Conversely, defendants argued that plaintiffs' protest activities were not protected expression but instead represented a threat to the city's legitimate interest in maintaining the safety and order of its streets and public places. The city officials contended that the pending charges were brought in good faith under ordinances which were constitutionally valid.

The federal district court for the Southern District of Alabama denied plaintiffs' motion for a temporary restraining order and, after a hearing on plaintiffs' motion for a preliminary injunction by affidavit only, dismissed both the motion and the complaint. The court, over plaintiffs' objection, found that there were no disputed factual issues. It then ruled that the ordinances were constitutional both facially and as applied, and that the arrests were made and the prosecutions were being conducted in good faith. While agreeing that one ordinance is indeed facially valid, we disagree with the determination below that all pass constitutional muster. Moreover, we find error in the refusal of the district court to conduct an evidentiary hearing on plaintiffs' other contentions, and we remand in part so that plaintiffs may have their day in court on the issues which we do not here resolve.

II.

The plaintiffs' initial complaint is that the four Mobile ordinances in question are on their face unconstitutionally vague and overboard. An examination of the policies underlying facial review leads us to the conclusion that the issues presented by this allegation must be resolved prior to remand.

The argument that the Mobile ordinances are void for vagueness is an argument that the ordinances either 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. The argument that the ordinances are overbroad, on the other hand, is an argument that the ordinances "although lacking neither clarity nor precision," violate 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, 1967, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444, 451, quoting NAACP v. Alabama, 1964, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325, 338.

Despite these conceptual distinctions, the two-fold challenge lodged at the Mobile ordinances by plaintiffs rests on an identical principle, the chilling effect which such laws have on constitutionally protected activity.² Facial overbreadth scrutiny emphasizes the need to eliminate an overbroad law's deterrent impact on protected expressive activity. Dombrowski v. Pfister, 1965, 390 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. "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. Rather than await case-by-case excision of the statute's overbreadth through review of its application to particular conduct, courts invalidate the statute facially so as to end its deterrence of constitutionally protected activity when they conclude that as applied review will be needlessly time-consuming and ineffective. In the First Amendment area, the vagueness doctrine 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 will be prosecuted and, if so, whether his claim of privilege will be upheld.

The functional indistinguishability of the two doctrines is often recognized:

"The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchannelled delegation of legislative powers but upon the danger of tolerating, in the area of the First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." NAACP v. Button, 1963, 371 U.S. 415, 432-433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418 (Brennan, J.).

See generally Note, The First Amendment Overbreadth Doctrine, supra, at 871-75.

In the present case it is clear that a mere remand to the district court for an evidentiary hearing to determine whether the ordinances, as applied to plaintiffs and to members of their class, are unconstitutional is simply not responsive to the policies underlying the overbreadth and vagueness doctrines. While plaintiffs, if it be determined that their conduct was privileged, might escape the statutory burden, the ordinances, if overbroad, would remain as a disincentive to those who are less hardy. We must therefore decide at first instance the facial validity of the questioned ordinances to avoid the chilling effect which these laws if invalid might have on First Amendment rights.

Similarly, we find it irrelevant that an adequate appellate record might demonstrate that the conduct of plaintiffs was not protected under the First Amendment. The Supreme Court has taught us that where an overbreadth or vagueness challenge is raised, traditional laws of standing must be modified to allow a person burdened by an overbroad or vague law to assert its facial invalidity even though his own conduct may not be privileged.³ To do otherwise would constitute continued tolerance of a chill on the expressive activity of others. As the Court stated in Dombrowski,supra, 380 U.S. at 486, 85 S.Ct. at 1121:

"Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser. Cf. Garrison v. State of Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215, 216, 13 L.Ed.2d 125, 132, 133. For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093, 1099, 1100; NAACP v. Button, supra, 371 U.S., at 432-433, 83 S.Ct., at 337-338, 9 L.Ed.2d at 417, 418; cf.

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