Shuttlesworth v. City of Birmingham (394 U.S. 147)/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

394 U.S. 147

Shuttlesworth  v.  City of Birmingham

 Argued: Nov. 18, 1968. --- Decided: March 10, 1969

Mr. Justice HARLAN, concurring.

The Alabama Supreme Court's opinion makes it clear that if petitioner Shuttlesworth had carried his efforts to obtain a parade permit to the highest state court, he could have required the city authorities to grant permission for his march, so long as his proposals were consistent with Birmingham's interest in traffic control. Thus, the difficult question this case presents is whether the Fourteenth Amendment ever bars a State from punishing a citizen for marching without a permit which could have been procured if all available remedies had been pursued.

The Court answers that a citizen is entitled to rely on the statutory construction adopted by the state officials who are on the front line, administering the permit scheme. If these officials construe a vague statute unconstitutionally, the citizen may take them at their word, and act on the assumption that the statute is void. The Court's holding seems to me to carry seeds of mischief that may impair the conceded ability of the authorities to regulate the use of public thoroughfares in the interests of all. The right to ignore a permit requirement should, in my view, be made to turn on something more substantial than a minor official's view of his authority under the governing statute.

Simply because an inferior state official indicates his view as to a statute's scope, it does not follow that the State's judiciary will come to the same conclusion. Situations do exist, however, in which there can be no effective review of the decision of an inferior state official. In the present case, for example, the decision of Commissioner Connor had the practical effect of the decision of a court of last resort. One week before the Good Friday march, Shuttlesworth learned from Connor that he, as Commissioner of Public Safety, would not issue parade permits, and that the marchers would have to apply to the entire City Commission. ^[1] But Birmingham's ordinances did not require a prompt decision by the City Commission. ^[2] Nor did the State of Alabama provide for a speedy court review of the denial of a parade permit. ^[3]

Given the absence of speedy procedures, the Reverend Shuttlesworth and his associates were faced with a serious dilemma when they received their notice from Mr. Connor. If they attempted to exhaust the administrative and judicial remedies provided by Alabama law, it was almost certain that no effective relief could be obtained by Good Friday. Since the right to engage in peaceful and orderly political demonstrations is, under appropriate conditions, a fundamental aspect of the 'liberty' protected by the Fourteenth Amendment, see Stromberg v. California, 283 U.S. 359, 368-370, 51 S.Ct. 532, 535-536, 75 L.Ed. 1117 (1931); Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct. 954, 963-964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); Garner v. Louisiana, 368 U.S. 157, 201-203, 82 S.Ct. 248, 271-272, 7 L.Ed.2d 207 (1961) (opinion of Harlan, J.), the petitioner was not obliged to invoke procedures which could not give him effective relief. With fundamental rights at stake, he was entitled to adopt the more probable meaning of the ordinance and act on his belief that the city's permit regulations were unconstitutional.

It may be suggested, however, that Shuttlesworth's dilemma was of his own making. He could have requested a permit months in advance of Good Friday, thereby allowing Al bama's administrative and judicial machinery the necessary time to operate fully before the date set for the march. But such a suggestion ignores the principle established. in Freedman v. Maryland, 380 U.S. 51, 58 61, 85 S.Ct. 734, 738-741, 13 L.Ed.2d 649 (1965), which prohibits the States from requiring persons to invoke unduly cumbersome and time-consuming procedures before they may exercise their constitutional right of expression. Freedman holds that if the State is to protect the public from obscene movies, it must afford exhibitors a speedy administrative or judicial right of review, lest 'the victorious exhibitor might find the most propitious opportunity for exhibition (passed).' Id., at 61, 85 S.Ct., at 740. The Freedman principle is applicable here. ^[4] The right to assemble peaceably to voice political protest is at least as basic as the right to exhibit a motion picture which may have some aesthetic value. Moreover, slow-moving procedures have a much more severe impact in the instant case than they had in Freedman. Though a movie exhibitor might suffer some financial loss if he were obliged to wait for a year or two while the administrative and judicial mills ground out a result, it is nevertheless quite likely that the public would ultimately see the film. In contrast, timing is of the essence in politics. It is almost impossible to predict the political future; and when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all. To require Shuttlesworth to submit his parade permit application months in advance would place a severe burden upon the exercise of his constitutionally protected rights. Cf. William v. Rhodes, 393 U.S. 23, 33, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968).

I do not mean to suggest that a State or city may not reasonably require that parade permit applications be submitted early enough to allow the authorities and the judiciary to determine whether the parade proposal is consistent with the important interests respecting the use of the streets which local authority may legitimately protect. But such applications must be handled on an expedited basis so that rights of political expression will not be lost in a maze of cumbersome and slow-moving procedures.

Neither the city of Birmingham nor the State of Alabama has established such expedited procedures. See nn. 2 and 3, supra. Indeed, the city's parade ordinance does not establish any procedure at all to govern the consideration of applications. Section 1159 of the City Code does not state when an application must be submitted if it is to be considered timely. The ordinance does not state how an application is to be submitted to the 'City Commission.' ^[5] Nor have regulations been published which would answer the e questions. ^[6]

In the absence of any guidelines, the most that can fairly be asked of petitioner is that he make a good-faith effort to obtain a permit from the city authorities. Shuttlesworth so acted when he approached the city official most likely to have the authority to deal with permit applications in an expedited manner-Commissioner Connor was the member of the City Commission in charge of public safety. It was Connor, not Shuttlesworth, who broke off all discussions relating to the issuance of permits. After the Commissioner declared that he lacked the power to act, it was reasonable to believe that no public authority would act in time. Since neither the city nor the State provided sufficiently expedited procedures for the consideration of parade permits, petitioner Shuttlesworth cannot be punished for the exercise of his constitutionally protected right of political expression. ^[7]

On this basis I concur in the reversal of the judgment of the Alabama Supreme Court.

Notes

1. I agree with any Brother STEWART that we may properly take judicial notice of the evidence of record in Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). See 9 J. Wigmore, Evidence § 2579, at 570 (3d ed. 1940); Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713 (1891); Craemer v. Washington, 168 U.S. 124, 18 S.Ct. 1, 42 L.Ed. 407 (1897). That record shows that in response to a request for permission to march on April 5 and 6, Mr. Connor replied by telegram on April 5:
2. Section 1159 does not require the City Commission to act on an application within any fixed amount of time. Indeed, by the time Connor definitively declared that he could not issue parade permits, it is not all clear that petitioner could even have made a timely permit application to the City Commission at its only remaining regular session set before the scheduled Good Friday march. See General City Code of Birmingham § 21 (1944). While the 1964 City Code makes it clear that petitioner's permit application would have been considered out of time, see § 2-10, the 1944 Code, which was applicable in 1963, is not clear on this point.
3. Although Shuttlesworth could have petitioned for a writ of mandamus in the Alabama Circuit Court if the City Commission denied his application, that state court is not obliged to render a decision within any fixed period of time.
4. None of our past decisions have squarely considered whether parade licenses must be handled on an expedited basis. In Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), the question was not argued. In Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953), Poulos' request for a permit to conduct religious services in a public park was refused by the Portsmouth City Council seven and one-half weeks before the first scheduled event. Since the time remaining was sufficient to obtain relief by way of mandamus, see 345 U.S., at 419-420, 73 S.Ct., at 773-774 (opinion of Mr. Justice Frankfurter), there was no need to consider whether the State had a constitutional obligation to provide a more rapid procedure. And, of course, those cases which struck down regulatory schemes which purported to issue licenses on the basis of unconstitutional standards did not reach the question presented here. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Schneider v. State, 308 U.S. 147, 163-165, 60 S.Ct. 146, 151-152, 84 L.Ed. 155 (1939); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958).
5. It would be most remarkable if every parade application involving the march of 52 persons is considered in a plenary manner by the principal government body of a city so large as Birmingham. In fact, an offer of proof was made in the Walker proceedings that the City Commission had never passed on permit applications in the past, but had delegated the task to inferior officials. See Transcript, supra, n. 1, at 290. The proof was not admitted on the ground that it was irrelevant. Ibid.
6. At the trial in Walker v. City of Birmingham, the City Clerk, who kept records of the parade permits that had been granted, stated that no regulations had been issued to fill in the gaps left by the Ordinance. See Transcript, supra, n. 1, at 286.
7. I do not reach the question whether the principle followed in such cases as Lovell, Schneider, Largent, and Staub, see n. 4, supra, allowing persons to ignore entirely licensing schemes which unconstitutionally impinge on other forms of free expression, should be extended to cover 'parade' permit statutes involving, as they do, a particularly important state interest.