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

Petitioner, a Negro minister who helped lead 52 Negroes in an orderly civil rights march in Birmingham, Ala., in 1963, was arrested and convicted for violating § 1159 of the city's General Code, an ordinance which proscribes participating in any parade or procession on city streets or public ways without first obtaining a permit from the City Commission. Section 1159 permits the Commission to refuse a parade permit if its members believe "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." Petitioner had previously been given to understand by a member of the Commission that under no circumstances would petitioner and his group be allowed to demonstrate in Birmingham. The Alabama Court of Appeals reversed the conviction on the grounds, inter alia, that § 1159, as written, unconstitutionally imposed an "invidious prior restraint" without ascertainable standards for the granting of permits, and that the ordinance had been discriminatorily enforced. However, as the Alabama Supreme Court in 1967 narrowly construed § 1159 as an objective, even-handed traffic regulation which did not allow the Commission unlimited discretion in granting or withholding permits, and upheld petitioner's conviction.

Held:

1. A law subjecting the right of free expression in publicly owned places to the prior restraint of a license, without narrow, objective, and definite standards is unconstitutional, and a person faced with such a law may ignore it and exercise his First Amendment rights. Pp. 150-151.

2. Picketing and parading may constitute methods of expression entitled to First Amendment protection, and use of the streets for that purpose, though subject to regulation, may not be wholly denied. P. 152.

3. Since the terms of § 1159 gave the Commission unbridled authority to issue or withhold parade permits without reference to legitimate regulation of public streets and sidewalks, the ordinance would be, absent a limiting construction, unconstitutional on its face. Pp. 150-151, 153.

4. The narrow construction that the State Supreme Court placed upon § 1159 in 1967 does not necessarily validate petitioner's 1963 conviction; the test is whether the ordinance was actually administered "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." Cox v. New Hampshire, 312 U.S. 569, 574. Pp. 153-155.

5. Since in this case § 1159 was administered in accordance with its impermissibly broad language, so as to "deny or unwarrantedly abridge" the First Amendment rights of the petitioner and his organization, the petitioner's conviction may not stand. Cox v. New Hampshire, supra, distinguished. Pp. 155-159.

281 Ala. 542, 206 So.2d 348, reversed.

Jack Greenberg argued the cause for petitioner. With him on the brief were James M. Nabrit III, Norman C. Amaker, Charles Stephen Ralston, Melvyn Zarr, Arthur D. Shores, Orzell Billingsley, Jr., and Anthony G. Amsterdam.

Earl McBee argued the cause for respondent. With him on the brief were J.M. Breckenridge and William C. Walker.