Wright v. City of Montgomery, Alabama

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation406 F.2d 867
Docket NumberNo. 26314.,26314.
PartiesAlfred WRIGHT et al., Appellants, v. The CITY OF MONTGOMERY, ALABAMA, et al., Appellees.
Decision Date27 January 1969

Morton Stavis, Newark, N. J., William M. Kunstler, Arthur Kinoy, New York City, Alvin J. Bronstein, Cambridge, Mass., Benjamin E. Smith, New Orleans, La., Charles S. Conley, Montgomery, Ala., Dennis J. Roberts, Newark, N. J., for appellants.

Ira DeMent, Matthis W. Piel, Montgomery, Ala., for appellees.

Before JOHN R. BROWN, Chief Judge, AINSWORTH, Circuit Judge, and COMISKEY, District Judge.

AINSWORTH, Circuit Judge.

"Our Constitution protects the right of protest and dissent within broad limits. * * * It broadly protects the right to assemble, to picket, to stage `freedom walks' or mass demonstrations, if these activities are peaceable and if the protesters comply with reasonable regulations designed to protect the general public without substantially interfering with effective protest. * * * However If the right to protest, to dissent, or to assemble peaceably is exercised so as to violate valid laws reasonably designed and administered to avoid interference with others, the Constitution's guarantees will not shield the protester."1 (Emphasis added.) Appellants attack the "Disorderly Conduct," "Loitering," and "Failure to Obey" ordinances of the City of Montgomery, Alabama,2 as being unconstitutional on their face on the grounds that they are impermissively vague and broad in scope. See, e. g., Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).3 Appellants also seek an injunction against their prosecution in state court under these ordinances. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).4 The District Court denied the requested relief, and we affirm.

The subject matter of this suit has been extensively litigated;5 and, indeed, the present case, despite its difference in title, "* * * is an extension of the proceedings with which this Court dealt in Forman v. City of Montgomery, * * *." M.D.Ala., 1965, 245 F.Supp. 17, affirmed, 5 Cir., 1966, 355 F.2d 930, cert. denied, 384 U.S. 1009, 86 S.Ct. 1983, 16 L.Ed.2d 1022 (1966), where the appellants unsuccessfully attempted to remove their criminal prosecutions from the state courts to the federal courts pursuant to 28 U.S.C. § 1443. Wright v. City of Montgomery, Alabama, M.D.Ala., 1968, 282 F.Supp. 291, 292. The present phase of this litigation was commenced on November 8, 1966, and on November 9, 1966, the District Court entered an order denying a temporary injunction restraining the state prosecutions. On appeal to this Court, we vacated the order of the District Court and remanded for adjudication of the issues not previously decided in Forman v. City of Montgomery, supra. Upon consideration of our order of remand, the District Court found — and we agree — that the only issues not foreclosed by Forman v. City of Montgomery, supra, are the following:

"(1) Whether Sections 18, 36 and 59, Chapter 20, Montgomery City Code, are unconstitutional on their face in that they (a) are so vague and lacking in standards as to compel men of ordinary intelligence to guess at their meaning, and/or (b) are so broad in their sweep as to have a chilling and deterring effect on the exercise of First Amendment rights;
"(2) Whether this is a proper case for the exercise of federal equity jurisdiction and the granting of an injunction enjoining the prosecution of these plaintiffs under the said statutes, and further enjoining the defendants from the enforcement of or prosecution under the said statutes generally." Wright v. City of Montgomery, Alabama, M.D.Ala., 1968, 282 F.Supp. 291, 294.6
I.

The District Court, while inferentially holding that the ordinances in question could be construed narrowly in a manner which would sustain their constitutionality, abstained from ruling on the constitutional questions and on the propriety of an injunction to restrain the state prosecutions. While we find the District Court's reasoning compelling,7 in light of the recent Supreme Court decisions in Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335 (1968), and Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391 (1967),8 we proceed to the merits of the present controversy.

II.

Appellants argue that the ordinances under which they are being prosecuted are void for vagueness9 in that they 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 Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127 (1926). See also Cameron v. Johnson, 390 U.S. 611, 615-616, 88 S.Ct. 1335, 1338 (1968); Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 396 (1967) (dicta); Ashton v. Kentucky, 384 U.S. 195, 200-201, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966); Baggett v. Bullitt, 377 U.S. 360, 366-367, 84 S.Ct. 1316, 1320 (1964); Edwards v. South Carolina, 372 U.S. 229, 238, 83 S.Ct. 680, 685 (1963); Cramp v. Board of Pub. Inst., Orange County, Fla., 368 U.S. 278, 287, 82 S.Ct. 275, 280 (1961); Devine v. Wood, M.D.Ala., 1968, 286 F. Supp. 102, 104 (three-judge court) (per curiam); Landry v. Daley, N.D.Ill., 1968, 280 F.Supp. 938, 951 (three-judge court); United States v. Woodard, 7 Cir., 1967, 376 F.2d 136, 140, citing United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947). The essence of the vagueness doctrine is that the ordinance or statute must be sufficiently clear to give reasonable notice of the prohibited conduct and to apprise the judge and jury of the proper standards for determining guilt. Landry v. Daley, N.D.Ill., 1968, 280 F.Supp. 938, 951 (three-judge court), citing Collings, Unconstitutional Uncertainty-An Appraisal, 40 Cornell L.Rev. 195, 196-197 (1955); United States v. Jones, 2 Cir., 1966, 365 F.2d 675, 678. See generally Amsterdam, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).

Aside from the allegations of vagueness, appellants urge that the Montgomery ordinances are void for overbreadth in that they offend "* * * 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, 389 U.S. 241, 249-250, 88 S.Ct. 391, 396 (1967), citing N. A. A. C. P. v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314 (1964). See also Cameron v. Johnson, 390 U.S. 611, 616-617, 88 S.Ct. 1335, 1338 (1968); Keyishian v. Board of Regents of U. of St. of N. Y., 385 U.S. 589, 602, 87 S.Ct. 675, 683 (1967); Ashton v. Kentucky, 384 U.S. 195, 200-201, 86 S.Ct. 1407, 1410 (1966); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211 (1965); Cox v. State of Louisiana, 379 U.S. 536, 551-552, 85 S.Ct. 453, 462-463 (1965); Aptheker v. Secretary of State, 378 U. S. 500, 508-509, 84 S.Ct. 1659, 1665 (1964); N. A. A. C. P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, (1963); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680 (1963); Louisiana ex rel. Gremillion v. National Ass'n for Adv. of Col. People, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252 (1960); Davis v. Francois, 5 Cir., 1968, 395 F.2d 730, 736; Landry v. Daley, N.D.Ill., 1968, 280 F.Supp. 938, 951-952 (three-judge court). In order to avoid the constitutional consequences of overbreadth, the statute or ordinance in question "must simply identify a substantial interest worthy of protection." Davis v. Francois, supra at 736, citing Note, Regulation of Demonstrations, 80 Harv.L.Rev. 1773 (1967).10

In this regard, it is well settled that the state has a legitimate and substantial interest in regulating demonstrations and picketing and, indeed, these forms of expression are subject to greater regulation than "pure speech":

"The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. * * * Governmental authorities have the duty and responsibility to keep their streets open and available for movement. * * *
"We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech." (Emphasis added.)

Cox v. State of Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 464 (1965). See also Cameron v. Johnson, 390 U.S. 611, 617, 88 S.Ct. 1335, 1338-1339 (1968); N. A. A. C. P. v. Button, 371 U.S. 415, 438-439, 83 S.Ct. 328, 340-341 (1963); National Ass'n for A. of C. P. v. State of Alabama, 357 U.S. 449, 460-462, 78 S.Ct. 1163, 1170-1171 (1958); Feiner v. People of the State of New York, 340 U.S. 315, 320, 71 S.Ct. 303, 306, 95 L.Ed. 267 (1951); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 499-500, 69 S.Ct. 684, 689, 93 L.Ed. 834 (1949); Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940); Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 150 (1939). See generally Fortas, Concerning Dissent and Civil Disobedience, Part I, pp. 9-25 (1968). As this Court stated in Davis v. Francois, 5 Cir., 1968, 395 F.2d 730, 733:

"However laudatory, protests
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