Opinions & Commentaries

Appellants are five "Jehovah's Witnesses" who, with sixty-three others of the same persuasion, were convicted in the municipal court of Manchester, New Hampshire, for violation of a state statute prohibiting a "parade or *571 procession" upon a public street without a special license.

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On Wednesday, April 10, 1963, officials of Birmingham, Alabama, filed a bill of complaint in a state circuit court asking for injunctive relief against 139 individuals and *309 two organizations. The bill and accompanying affidavits stated that during the preceding seven days:

"[R]espondents [had] sponsored and/or participated in and/or conspired to commit and/or to encourage and/or to participate in certain movements, plans or projects commonly called `sit-in' demonstrations, `kneel-in' demonstrations, mass street parades, trespasses on private property after being warned to leave the premises by the owners of said property, congregating in mobs upon the public streets and other public places, unlawfully picketing private places of business in the City of Birmingham, Alabama; violation of numerous ordinances and statutes of the City of Birmingham and State of Alabama . . . ."
It was alleged that this conduct was "calculated to provoke breaches of the peace," "threaten[ed] the safety, peace and tranquility of the City," and placed "an undue burden and strain upon the manpower of the Police Department."The bill stated that these infractions of the law were expected to continue and would "lead to further imminent danger to the lives, safety, peace, tranquility and general welfare of the people of the City of Birmingham," and that the "remedy by law [was] inadequate." The circuit judge granted a temporary injunction as prayed in the bill, enjoining the petitioners from, among other things, participating in or encouraging mass street parades or mass processions without a permit as required by a Birmingham ordinance.[1]*310 Five of the eight petitioners were served with copies of the writ early the next morning. Several hours later four of them held a press conference. There a statement was distributed, declaring their intention to disobey the injunction because it was "raw tyranny under the guise of maintaining law and order."[2] At this press conference one of the petitioners stated: "That they had respect for the Federal Courts, or Federal Injunctions, but in the past the State Courts had favored local law enforcement, and if the police couldn't handle it, the mob would."That night a meeting took place at which one of the petitioners announced that "[i]njunction or no injunction we are going to march tomorrow." The next afternoon, Good Friday, a large crowd gathered in the vicinity of Sixteenth Street and Sixth Avenue North in Birmingham. A group of about 50 or 60 proceeded to parade along the sidewalk while a crowd of 1,000 to 1,500 onlookers stood by, "clapping, and hollering, and [w]hooping." *311 Some of the crowd followed the marchers and spilled out into the street. At least three of the petitioners participated in this march.

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A black minister who led 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 proscribed participating in any parade or procession on city streets or public ways without first obtaining a permit from the City Commission. Section 1159 permitted the Commission to refuse a parade permit if its members believed that "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." The minister had previously been given to understand by a member of the Commission that under no circumstances would he and his group be allowed to demonstrate in Birmingham.

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The Illinois Supreme Court denied a stay of the trial court's injunction prohibiting petitioners from marching, walking, or parading in the uniform of the National Socialist Party of America or otherwise displaying the swastika, and from distributing pamphlets or displaying materials inciting or promoting hatred against Jews or persons of any faith, ancestry, or race, and also denied leave for an expedited appeal. Held: 1. The Illinois Supreme Court's order is a final judgment for purposes of this Court's jurisdiction, since it finally determined the merits of petitioners' claim that the injunction will deprive them of First Amendment rights during the period of appellate review. 2. The State must allow a stay where procedural safeguards, including immediate appellate review, are not provided, and the Illinois Supreme Court's order denied this right. Certiorari granted; reversed and remanded.

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After several violent confrontations between civil rights marchers and local residents, the Forsyth (Georgia) County Board of Commissioners enacted an ordinance that permitted the county administrator to adjust the fee charged for a parade permit, up to a maximum of $1,000, to reflect the estimated cost of maintaining public order during the parade. In January 1989, The Nationalist Movement applied for a permit to demonstrate in opposition to the Martin Luther King, Jr., holiday. The county charged a $100 fee that did include any calculation for expenses incurred by law enforcement authorities. The Movement challenged the fee in federal court. The federal district court rejected the challenge. The Eleventh Circuit Court of Appeals reversed, holding that the arbitrary fee violated the First Amendment. A government may regulate competing uses of public forums, such as streets and sidewalks, by imposing permit requirements on those who wish to hold rallies, parades, and marches. Cox v. New Hampshire, 312 U.S. 569 (1941). The regulatory scheme, however, must not delegate overly broad licensing discretion to a government official, must be content-neutral, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternative channels for communication. United States v. Grace, 461 U.S. 171 (1983); Freedman v. Maryland, 380 U.S. 51 (1965).

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A veterans' organization has for almost 50 years organized the Boston St. Patrick's Day parade. A group of gay, lesbian, and bisexual descendants of Irish immigrants requested permission to march in the parade. After the parade organizers denied this request, the group obtained a state court order allowing it to march. The state court relied on a Massachusetts statute that prohibits operators of public places from discriminating on the basis of sexual orientation. First Amendment protections attach to parades and persons in them. Gregory v. Chicago, 394 U.S. 111 (1969). One of these protections is that a speaker has the freedom to decide what not to say. Pacific Gas & Elec. C. v. Utilities Comm. of Cal, 475 U.S. 1 (1986).

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