Shuttlesworth v. City of Birmingham (394 U.S. 147)/Opinion of the Court

by Potter Stewart

United States Supreme Court

394 U.S. 147

Shuttlesworth  v.  City of Birmingham

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

The petitioner stands convicted for violating an ordinance of Birmingham, Alabama, making it an offense to participate in any 'parade or procession or other public demonstration' without first obtaining a permit from the City Commission. The question before us is whether that conviction can be squared with the Constitution of the United States.

On the afternoon of April 12, Good Friday, 1963, 52 people, all Negroes, were led out of a Birmingham church by three Negro ministers, one of whom was the petitioner, Fred L. Shuttlesworth. They walked in orderly fashion, two abreast for the most part, for four blocks. The purpose of their march was to protest the alleged denial of civil rights to Negroes in the city of Birmingham. The marchers stayed on the sidewalks except at street intersections, and they did not interfere with other pedestrians. No automobiles were obstructed, nor were traffic signals disobeyed. The petitioner was with the group for at least part of this time, walking alongside the others, and once moving from the front to the rear. As the marchers moved along, a crowd of spectators fell in behind them at a distance. The spectators at some points spilled out into the street, but the street was not blocked and vehicles were not obstructed.

At the end of four blocks the marchers were stopped by the Birmingham police, and were arrested for violating § 1159 of the General Code of Birmingham. That ordinance reads as follows:

'It shall be unlawful to organize or hold, or to assist in organizing or holding, or to take part or participate in, any parade or procession or other public demonstration on the streets or other public ways of the city, unless a permit therefore has been secured from the commission.

'To secure such permit, written application shall be made to the commission, setting forth the probable number of persons, vehicles and animals which will be engaged in such parade, procession or other public demonstration, the purpose of which it is to be held or had, and the streets or other public ways over, along or in which it is desired to have or hold such parade, procession or other public demonstration. The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused. It shall be unlawful to use for such purposes any other streets or public ways than those set out in said permit.

'The two preceding paragraphs, however, shall not apply to funeral processions.'

The petitioner was convicted for violation of § 1159 and was sentenced to 90 days' imprisonment at hard labor and an additional 48 days at hard labor in default of payment of a $75 fine and $24 costs. The Alabama Court of Appeals reversed the judgment of conviction, holding the evidence was insufficient 'to show a procession which would require, under the terms of § 1159, the getting of a permit,' that the ord nance had been applied in a discriminatory fashion, and that it was unconstitutional in imposing an 'invidious prior restraint' without ascertainable standards for the granting of permits. 43 Ala.App. 68, 95, 83, 180 So.2d 114, 139, 127. The Supreme Court of Alabama, however, giving the language of § 1159 an extraordinarily narrow construction, reversed the judgment of the Court of Appeals and reinstated the conviction. 281 Ala. 542, 206 So.2d 348. We granted certiorari to consider the petitioner's constitutional claims, 390 U.S. 1023, 88 S.Ct. 1417, 20 L.Ed.2d 280.

There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the City Commission virtually unbridled and absolute power to prohibit any 'parade,' 'procession,' ^[1] or 'demonstration' on the city's streets or public ways. For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order, morals or convenience.' This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional. ^[2] 'It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official-as by requiring a permit or license which may be granted or withheld in the discretion of such official-is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.' Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. ^[3] 'The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.' Jones v. City of Opelika, 316 U.S. 584, 602, 62 S.Ct. 1231, 1242, 86 L.Ed. 1691 (Stone, C.J., dissenting), adopted per curiam on rehearing, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290.

It is argued, however, that what was involved here was not 'pure speech,' but the use of public streets and sidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of traffic regulation and public safety. That, of course, is true. We have emphasized before this that 'the First and Fourteenth Amendments (do not) 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.' Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471. 'Governmental authorities have the duty and responsibility to keep their streets open and available for movement.' Id., at 554-555, 85 S.Ct., at 464.

But our decisions have also made clear that picketing and parading may nonetheless constitute methods of expression, entitled to First Amendment protection. Cox v. Louisiana, supra; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. 'Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.' Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of Mr. Justice Roberts, joined by Mr. Justice Black).

Accordingly, 'although (a) this Court has recognized that a statute may be enacted which prevents serious interference with normal usage of streets and parks, * * * 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.' Kunz v. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 315, 95 L.Ed. 280. See also Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280. Even when the use of its public streets and sidewalks is involved, therefore, a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question on the 'welfare,' 'decency,' or 'morals' of the community.

Understandably, under these settled principles, the Alabama Court of Appeals was unable to reach any conclusion other than that § 1159 was unconstitutional. The terms of the Birmingham ordinance clearly gave the City Commission extensive authority to issue or refuse to issue parade permits on the basis of broad criteria entirely unrelated to legitimate municipal regulation of the public streets and sidewalks.

It is said, however, that no matter how constitutionally invalid the Birmingham ordinance may have been as it was written, nonetheless the authoritative construction that has now been given it by the Supreme Court of Alabama has so modified and narrowed its terms as to render it constitutionally cceptable. It is true that in affirming the petitioner's conviction in the present case, the Supreme Court of Alabama performed a remarkable job of plastic surgery upon the face of the ordinance. The court stated that when § 1159 provided that the City Commission could withhold a permit whenever 'in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require,' the ordinance really meant something quite different:

'(We) do not construe this (language) as vesting in the Commission an unfettered discretion in granting or denying permits, but, in view of the purpose of the ordinance, one to be exercised in connection with the safety, comfort and convenience in the use of the streets by the general public. * * * The members of the Commission may not act as censors of what is to be said or displayed in any parade. * *

'* * * (We) do not construe § 1159 as conferring upon the 'commission' of the City of Birmingham the right to refuse an application for a permit to carry on a parade, procession or other public demonstration solely on the ground that such activities might tend to provoke disorderly conduct. * * *

'We also hold that under § 1159 the Commission is without authority to act in an arbitrary manner or with unfettered discretion in regard to the issuance of permits. Its discretion must be exercised with uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination. A systematic, consistent and just order of treatment with reference to the convenience of public use of the streets and sidewalks must be followed. Applications for permits to parade must be granted if, after an investigation it is found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed.' 281 Ala., at 545-546, 206 So.2d, at 350-352.

In transforming § 1159 into an ordinance authorizing no more than the objective and even-handed regulation of traffic on Birmingham's streets and public ways, the Supreme Court of Alabama made a commendable effort to give the legislation 'a field of operation within constitutional limits.' 281 Ala., at 544, 206 So.2d, at 350. We may assume that this exercise was successful, and that the ordinance as now authoritatively construed would pass constitutional muster. ^[4] It does not follow, however, that the severely narrowing construction put upon the ordinance by the Alabama Supreme Court in November of 1967 necessarily serves to restore constitutional validity to a conviction that occurred in 1963 under the ordinance as it was written. The inquiry in every case must be that stated by Chief Justice Hughes in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049-whether control of the use of the streets for a parade or procession was, in fact, 'exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.' Id., at 574, 61 S.Ct., at 765.

In Cox the Court found that control of the streets had not been exerted unconstitutionally. There the Court was dealing with a parade-permit statute that was silent as to the criteria governing the granting of permits. In affirming the appellants' convictions for parading without a permit, the New Hampshire Supreme Court had construed the statute to require the issuance of a permit to anybody who applied, subject only to the power of the licensing authority to specify the 'time, place and manner' of the parade in order to accommodate competing demands for public use of the streets. This Court accepted the state court's characterization of the statute, and its assurance that the appellants "had a right, under the act, to a license to march when, where and as they did, if after a required investigation it was found that the convenience of the public in the use of the streets would not thereby be unduly disturbed, upon such conditions or charges in time, place and manner as would avoid disturbance." 312 U.S., at 576, 61 S.Ct., at 766. In affirming the New Hampshire judgment, however, this Court was careful to emphasize:

'There is no evidence that the statute has been administered otherwise than in the fair and nondiscriminatory manner which the state court has construed it to require.' Id., at 577, 61 S.Ct., at 766.

In the present case we are confronted with quite a different situation. In April of 1963 the ordinance that was on the book in Birmingham contained language that affirmatively conferred upon the members of the Commission absolute power to refuse a parade permit whenever they thought 'the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.' It would have taken extraordinary clairvoyance for anyone to perceive that this language meant what the Supreme Court of Alabama was destined to find that it meant more than four years later; and, with First Amendment rights hanging in the balance, we would hesitate long before assuming that either the members of the Commission or the petitioner possessed any such clairvoyance at the time of the Good Friday march.

But we need not deal in assumptions. For, as the respondent in this case has reminded us, in assessing the constitutional claims of the petitioner, '(i)t is less than realistic to ignore the surrounding relevant circumstances. These include not only facts developed in the Record in this case, but also those shown in the opinions in the related case of Walker v. City of Birmingham (1946), 388 U.S. 307 (87 S.Ct. 1824, 18 L.Ed.2d 1210) * * *.' ^[5] The petitioner here was one of the petitioners in the Walker case, in which, just two Terms ago, we had before us a record showing many of the 'surrounding relevant circumstances' of the Good Friday march. As the respondent suggests, we may properly take judicial notice of the record in that litigation between the same parties who are now before us. ^[6]

Uncontradicted testimony was offered in Walker to show that over a week before the Good Friday march petitioner Shuttlesworth sent a representative to apply for a parade permit. She went to the City Hall and asked 'to see the person or persons in charge to issue permits, permits for parading, picketing, and demonstrating.' She was directed to Commissioner Connor, who denied her request in no uncertain terms. 'He said, 'No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail,' and he repeated that twice.' 388 U.S., at 317, n. 9, 325, 335, 339, 87 S.Ct., at 1830, 1834, 1839, 1841.

Two days later petitioner Shuttlesworth himself sent a telegram to Commissioner Connor requesting, on behalf of his organization, a permit to picket 'against the injustices of segregation and discrimination.' His request specified the sidewalks where the picketing would take place, and stated that 'the normal rules of picketing' would be obeyed. In reply, the Commissioner sent a wire stating that permits were the responsibility of the entire Commission rather than of a single Commissioner, and closing with the blunt admonition: 'I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.' Id., at 318, n. 10, 325, 335-336, 339-340, 87 S.Ct. at 1830, 1834, 1839-1840, 1841-1842. ^[7]

These 'surrounding relevant circumstances' make it indisputably clear, we think, that in April of 1963-at least with respect to this petitioner and his organization ^[8]-the city authorities thought the ordinance meant exactly what it said. The petitioner was clearly given to understand that under no circumstances would he and his group be permitted to demonstrate in Birmingham, not that a demonstration would be approved if a time and place were selected that would minimize traffic problems. There is no indication whatever that the authorities considered themselves obligated-as the Alabama Supreme Court more than four years later said that they were-to issue a permit 'if, after an investigation (they) found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed.'

This case, therefore, is a far cry from Cox v. New Hampshire, supra, where it could be said that there was nothing to show 'that the statute has been administered otherwise than in the * * * manner which the state court has construed it to require.' Here, by contrast, it is evident that the ordinance was administered so as, in the words of Chief Justice Hughes, 'to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought * * * immemorially associated with resort to public places.' The judgment is reversed.

Reversed.

Notes

1. Except funeral processions.
2. See Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Schneider v. State, 308 U.S. 147, 163-165, 60 S.Ct. 146, 151-152, 84 L.Ed. 155; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Jones v. City of Opelika, 316 U.S. 584, 600, 611, 62 S.Ct. 1231, 1240, 1245, 86 L.Ed. 1691 (Stone, C.J., dissenting) (Murphy, J., dissenting), vacated and previous dissenting opinions adopted per curiam, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274; Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Superior Films, Inc. v. Department of Education, etc., 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225.
3. Lovell v. City of Griffin, 303 U.S., at 452-453, 58 S.Ct., at 669; Schneider v. State, 308 U.S., at 159, 165, 60 S.Ct., at 152; Largent v. Texas, 318 U.S., at 419, 422, 63 S.Ct., at 668, 669; Jones v. City of Opelika, 316 U.S., at 602, 62 S.Ct., at 1241, adopted per curiam on rehearing, 319 U.S., at 104, 63 S.Ct. 890; Staub v. City of Baxley, 355 U.S., at 319, 78 S.Ct., at 280; Freedman v. Maryland, 380 U.S. 51, 56-57, 85 S.Ct. 734, 737-738, 13 L.Ed.2d 649.
4. The validity of this assumption would depend upon, among other things, the availability of expeditious judicial review of the Commission's refusal of a permit. Cf. Poulos v. New Hampshire, 345 U.S. 395, 420, 73 S.Ct. 760, 773, 97 L.Ed. 1105 (Frankfurter, J., concurring in result); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649. See also the concurring opinion of Mr. Justice HARLAN, post, p. 159.
5. Brief for Respondent 1-2.
6. National Fire Ins. Co. v. Thompson, 281 U.S. 331, 336, 50 S.Ct. 288, 290, 74 L.Ed. 881, and cases cited therein.
7. The legal and consti utional issues involved in the Walker case were quite different from those involved here. The Court recently summarized the Walker decision as follows:
8. In Walker the petitioner made an offer of proof that parade permits had been issued to other groups by the city clerk at the request of the traffic bureau of the police department. 388 U.s,., at 325-326, 336, 340, 87 S.Ct., 1834-1835, 1840, 1842.