Strother v. Thompson

• Decision Date: 14 February 1967
• Docket Number: No. 23033.,23033.
• Citation: 372 F.2d 654
• Parties: Garland STROTHER and Ernestine Holt for her minor daughter, Jimmye Blalock, Appellants, v. Allen C. THOMPSON et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

372 F.2d 654 (1967)

Garland STROTHER and Ernestine Holt for her minor daughter, Jimmye Blalock, Appellants, v. Allen C. THOMPSON et al., Appellees.

No. 23033.

United States Court of Appeals Fifth Circuit.

February 14, 1967.

Anthony G. Amsterdam, Philadelphia, Pa., Alvin J. Bronstein, R. Jess Brown, John H. Doyle, III, Jackson, Miss., Michael J. Silverberg, New York City, John O. Honnold, Jr., Philadelphia, Pa., Jack Greenberg, Melvyn Zarr, New York City, for appellants.

Thomas H. Watkins, E. W. Stennett, J. A. Travis, Jr., Elizabeth W. Grayson, Jackson, Miss., for appellees.

Before BROWN and COLEMAN, Circuit Judges, and DAWKINS, District Judge.

COLEMAN, Circuit Judge:

The appeal in this case squarely raises a single issue: Is an Ordinance of the City of Jackson, Mississippi,¹ enacted June 25, 1940, requiring the issuance of a permit for the distribution of handbills and like objects, void on its face as in violation of the First and Fourteenth Amendments to the United States Constitution?

On June 13, 1965, without first obtaining a permit therefor as required by the Ordinance in question, plaintiffs distributed certain leaflets in the City of Jackson. They were arrested and put in jail. Others engaged in distributing similar leaflets without a permit were arrested the following day.

A photocopy of the leaflet distributed by the plaintiffs on June 13 is exhibited in the record and appears to have been a "handmade" dodger, duplicated in some manner, reading as follows:

"M.F.D.P. protests The Gathering on Monday Of Miss. Law-makers . . . The Illegally-Elected State Legislators MASS RALLY To-night — Morning Star Baptist Church, Kane St., Off Mill, 8-30 pm. ___________________ Miss. Freedom Democrat'" FOR ALL PEOPLE — Party ic' '" ______________

The City says that the purpose of requiring a permit is "to prevent the sidewalks and the streets from becoming littered and unsightly and to prevent the sewer mains and culverts from becoming clogged and unsanitary, thereby creating an unsanitary condition detrimental to the health of the community and to prevent injury to pedestrians or damage to property or drainage difficulty".

Appellants charge that the ordinance imposes a prior restraint on communication, controls political expression and cannot be justified on city interest in clean streets. Further, that the bond requirements invalidate the ordinance.

The District Court heard the matter on complaint and answer. No testimony or other evidence was heard. The Court found that the ordinance "does not prohibit the distribution of handbills but merely regulates the distribution thereof by a permit and bond, that it was not a censorship ordinance, that it is solely designed and intended to prevent littering of the streets, etc.

A municipality can prohibit the use of its streets for the distribution of purely commercial leaflets, even though such leaflets may have a civic appeal or contain a moral platitude; Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869, (1943); Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). The handbill or dodger distributed by these appellants was not a commercial leaflet, Jamison v. State of Texas, supra.

A municipality has the power to enact and enforce ordinances against throwing literature broadcast in the streets, Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). The ordinance presently under consideration contains no such prohibition.

An ordinance prohibiting a person rightfully on a public street from handing literature to one willing to receive it cannot be sustained on the argument that the purpose is to keep the streets clean, Schneider v. State of New Jersey, supra; Jamison v. State of Texas, supra.

Municipalities may enact regulations in the interest of the public safety, health, welfare or convenience, but these regulations may not abridge individual liberty, guaranteed by the Constitution, to speak, write, print or circulate information or opinion, Schneider v. State of New Jersey, supra, Jamison v. State of Texas, supra and Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

The City of Jackson argues that the Ordinance in question does not prohibit the circulation of handbills, that it simply regulates such circulation, placing much reliance, by analogy, on Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105, 30 A.L.R.2d 987 (1953).

The Supreme Court there said:

"The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction.

It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated to the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquility without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion."

But the Court in Poulos quoted with approval what it had said in Kunze v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1950):

"We have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places."

In Poulos, the validity of the ordinance with reference to licenses to speak in public parks was sustained because

"By its construction of the ordinance the State left to the licensing officials no discretion as to granting permits, no power to discriminate, no control over speech."

There is no Mississippi State Court interpretation of the Jackson Ordinance as there was in New Hampshire.

If the Jackson ordinance is to escape unconstitutionality upon its face, it must not have left the City Council with unfettered discretion as to granting the permit in question, with corresponding power to discriminate, and with like control over speech.

The ordinance requires those desiring to distribute handbills, posters, dodgers, * * * to apply for a permit to do so, filing with the application a copy of that which is to be distributed. Then, the City Council shall determine what bond is to be required for clearing up of sidewalks, and streets, etc., taking...