*1 CD JOHNSON, GOVERNOR OF CAMERON et al. MISSISSIPPI, et al. April 22, Argued 5-6, 1968. No. 1968. Decided March *2 Benjamin Kinoy argued Arthur E. Smith the cause M. were William for With on appellants. them the brief Kunstler, Morton Stavis and Bruce C. Waltzer. Wells,
Will S. Attorney General Missis- Assistant argued appellees. cause on sippi, for With him Patterson, were Joe T. and Wil- Attorney brief General, Allain, liam A. Attorney Assistant General.
Mr. Justice Brennan opinion delivered the Court.
Appellants brought declaratory this action for in- junctive relief in the District for Court the Southern Mississippi. They District of sought judgment a declar- ing that the Mississippi Anti-Picketing overly Law1 is an 1The statute as amended is codified as Miss. Code Ann. 2318.5 § (Supp. 1966), pertinent part provides: and in
“1. It shall any person, be unlawful for singly or in concert with others, engage or mass in such demonstrations a unreasonably manner as to obstruct or ingress interfere with free egress or public to and premises, from property, county State municipal courthouses, city or halls, buildings, jails, office or other public buildings property or Mississippi, owned State of any county or municipal government or therein, or located public the transaction of or justice business administration therein or thereon or unreasonably conducted so as to obstruct or interfere and therefore vague regulation expression, broad and injunc- a They sought permanent face. also void on its Mis- other restraining appellees Governor and tion —the pending enforcing the statute sissippi officials—from alleging prosecutions otherwise, criminal or future violating against prosecutions them pending the then part of selective enforcement plan the statute2 expectation securing no by appellees with engaged in discourage solely appellants but convictions, regis- in voter protest racial discrimination picketing to attempt encourage Negro citizens to tration and vote. register to initially the issues
A court considered three-judge *3 the complaint answers, dismissed the amended and and judicial '“in sound discretion” complaint the exercise of its abstention,” having “in of the doctrine furtherance not due or extraordinary “that relief is concluded such We Supp. 846, in this 244 F. 849. suggested case. ...” for re 741, the 381 U. and remanded dismissal, vacated S. in Dom light in of our decision intervening consideration three- Pfister, 479.3 On remand the browski v. 380 U. S. ways public streets, sidewalks, public free use or other contiguous adjacent or thereto. guilty guilty Any person violating act this shall be deemed
“2.
and, upon
thereof,
conviction
fined
of a misdemeanor
shall be
($500.00),
jail
imprisoned in
than Five Hundred Dollars
or
more
(6)
imprisonment.”
months,
both such
not more than six
fine and
prosecutions
removed
C.
All of the
were
under 28 U. S.
§
opinion
City
Following
Greenwood
federal courts.
our
Peacock,
384 U. S.
the cases were remanded to
state
v.
They
Mississippi,
2d
sub
363 F.
869.
courts. Hartfield
by
stayed
stayed
presently
sequently
District Court and are
appeal.
pending
on
our decision
this
remand,
per
stated,
curiam
I. Mississippi Anti-Picketing The Law was enacted Mississippi Legislature signed by the Governor April 8, 1964, immediately. and became effective The County voting registration Forrest office is housed county in Hattiesburg. courthouse courthouse a set back distance from the street and is reached paved several walks surrounding grass plots and a monu- January ment. On 22, 1964, rights organizations civil fostering registration voter Negro increased citizens staged large a demonstration on the courthouse site. picket Thereafter maintained a grounds line on the every day except Sunday January May 18, 23 until To 1964. facilitate access to the courthouse the sheriff at the outset blocked off with barricades small “march grounds route” area within the right of the main entrance to courthouse, where pickets, usually few in number, picket were allowed to until April 9, day following On the enactment of the Anti- Picketing Law, the sheriff accompanied by other county proper light relief is of the criteria set forth Dombrowski.” *4 prohibited The District Court held that the court from § enjoining abating prosecutions against criminal initiated appellants prior filing April of the 13, 1964, suit on further, exception that 42 U. S. C. 1983 creates no 2283. § § Supp. 873, unnecessary 262 F. 878. findWe it to resolve either question upon and intimate no view whatever the correctness of the holding of the District Court. three-judge The Court which rendered the initial de District Judge cision consisted of Circuit Judges Rives and District Court Upon Judge Mize Mize, Judge Cox. the death of apd Circuit Cole designated man was Judge to serve his stead. Circuit Rives colleagues dissented from his on both occasions. See Supp., 244 F. at 856, Supp., 262 F. at 881. “march pickets law to the at
officials, read the new disperse, them to which did. route” and directed marking also the barricades The sheriff removed morning April pickets, “march route.” On the the court- persons, appeared 35 or 40 now increased to along the now unmarked house resumed formally pickets were arrested and “march route.” The Anti-Picketing of the statute. charged with violation pickets Seven more were arrested that afternoon. Others charged morning April on the were arrested and 13. Picket- complaint The this action was filed every on the “march route” ing nonetheless continued day May but no further arrests were made until until charged. were arrested and May 18, when nine picketing stopped All thereafter.
II. recon- response Court’s on the remand to District Dombrowski to render light the case in was first sider Koota, declaratory a Zwickler v. 389 U. S. judgment, cf. rejecting on its 241,5 face, the statute was not void vague, it is so indef- appellants’ broad, contention lacking definitely standards as inite, ascertainable agree face. We to be unconstitutional on its Court. District argument. a two-pronged First', advance
Appellants terms they argue the statute forbids pass decision the District Court declined to on the In the initial holding for constitutionality, the case was one absten statute’s In Supp., at 855-856. Zwickler we held that it was tion. F. special in the absence of circumstances to abstain and refuse error and, further, said, declaratory judgment at 254: “a to render a declaratory judgment request for a that a state statute is over- independently request face be considered broad its must injunctive against the enforcement of that relief statute. We duty appro district court has the to decide the hold that federal declaratory irrespective priateness request and the merits injunction.” propriety of as to the the issuance of the its conclusion *5 616 must neces intelligence vague men of common
“so that applica to its as meaning and differ sarily guess at its Co., 269 Construction Connally General v. tion . . . only “picket prohibits the statute 391.6 But 385, U. S. or unreason a manner as to obstruct ing ... in such to and ingress egress ably interfere with free terms “ob . .” The county . . courthouses . . any . . .. no require “unreasonably plainly interfere” and struct” focus meaning.” Appellants “guess[ing] at [their] widely and well “unreasonably.”7 It is a used the word clearly juxtaposed when and so understood word the stat We conclude that and “interfere.” “obstruct” in words of its reach clearly precisely ute and delineates narrowly “a understanding.8 precise common It is regulatory evincing legislative judgment drawn . . Ed specific proscribed.” certain conduct be . that Carolina, 229, 372 S. wards v. South U. appellants’ argument is that prong
The second “lacking clarity assuming it is neither statute, even that that 'overbreadth,’ is, nor void for precision, is that govern- 'a principle it the constitutional offends Kentucky, See Ashton v. 195, 384 U. S. 200-201. appellants suggest to the statute which the amendment “unreasonably” questions of twice inserts the word “raises new vagueness not before this Court on unconstitutional and overbreadth argument, original appeal.” rejected this The District Court argue Supp., F. at 879: “Plaintiffs . . . the addition 'unreasonably’ vague more word to the statute made it even disagree. indefinite, but The word 'unreasonable’ seems to have we Republic been well understood the founders of the when enforced, remains, Amendment, it in the Fourth it used where be, day.” Judge Rives, dissent, Supp., as it should to this 262 F. n. the addition of the to the statute found that word scope. contrary, argue did not alter its “On the the defendants always interpreted if the statute should have been as this word unreasonably present persons and that arrested did block the Court House.” Johnson, See Cameron S., (dissenting opin 381 U. at 749-750 J.). id., (dissenting opinion J.); at 757 ion White, Black, *6 purpose mental to prevent control or activities con stitutionally subject regulation may to state be achieved means sweep unnecessarily broadly which ” thereby and invade protected the area of freedoms.’ Koota, Zwickler supra, argument v. at 250.9 The centers on the fact that the proscription the statute embraces picketing employed as a constitutionally vehicle for pro protest. tected “picketing But parading sub [are] ject regulation'even to though intertwined with expres sion and Louisiana, Cox 379 v. 559, U. S. association." 563,10 prohibit this does not so intertwined engaged unless in in a manner which ob or structs unreasonably ingress interferes with egress to or from the courthouse. Prohibition of conduct which has this abridge effect does not liberty constitutional “since such activity bears no necessary relationship to the freedom . to . . distribute or opinion.” information Schneider State, v. 308 U. S. 161. 147, The statute therefore “a dealing valid law with conduct to subject regulation so as to important vindicate of so interests ciety . . . the fact free speech is intermingled with such bring conduct does not with it constitutional protection.” Louisiana, Cox v. supra, 564. at
III. The District on response Court’s further remand in light deny reconsider the case of Dombrowski was to 9 Alabama, NAACP v. 288, 307; See 377 S. see U. also Zwickler Koota, 241, Keyishian 249-250; Regents, v. 389 U. S. Board v. Aptheker 589, 609; Secretary State, 385 500, U. S. v. 378 U. S. 508-509; Button, Tucker, 415, 438; NAACP v. 371 U. S. Shelton v. 479, 488; Connecticut, 304-307; 364 S. 296, U. Cantwell v. 310 S.U. State, 161, Schneider v. 308 U. S. 10 State, Giboney Schneider 147, 161; Empire See v. 308 S.U. Storage Co., & 490, 499-500; Alabama, Ice U. S. NAACP v. 449, 460-462; Button, U. S. NAACP v. S. 438-439. U. evidentiary on find- hearing, after an relief,
injunctive irreparable failed show ings appellants sufficient argue in this Appellants such relief. injury justify irreparable discloses sufficient Court the record if sought, even injunction entitle them injury to face. is constitutional its the statute the con S., 483-485, recognized, Dombrowski U. district tinuing validity of the maxim that federal invoked powers are be slow to act “where its court should *7 prose with criminal by injunction interfere threatened Jeannette, Douglas City in a state v. cutions court." Koota, at 253. supra, Zwickler 157, 162; see U. S. adminis good-faith with a interference State’s Federal peculiarly inconsistent its criminal laws “is tration of showing “special a framework” and with our federal every beyond injury circumstances” incidental requisite faith is brought lawfully good and in proceeding irreparable injury justify sufficient to finding to a remedy S., at extraordinary injunction. of an U. Dom- circumstances” in “special found such 484. We begun and threatened prosecutions there browski. The narrowly a for violation of statute not, here, were as expression, which intertwined regulating conduct of exces alleged violations of various sections but it regulating expression statutes sively broad Louisiana Communist Activities and self—the Louisiana Subversive Propaganda Control Law and the Communist Control challenged overly as broad statutes were Law. These expression. Despite state court vague regulations suppressing warrants and evi arrest quashing actions enforcing them, Louisiana seized purportedly dence prosecutions of Dombrow- continued to threaten officials under them. In that co-appellants context, and his ski of irreparable a of “the threat injury we held case of equity” doctrines by traditional was made required out. 380 U. 490. S., at We held further that the sec- tions Subversive Activities and Con- Communist (for trol Law alleged violations of which indictments had been obtained while the case was federal pending court) patently unconstitutional on their face, remanded with appropriate injunc- direction frame an restraining tion prosecution of the indictments.
In short, we viewed Dombrowski be case present- ing a situation of the “impropriety [state officials] invoking the in bad impose continuing faith to appellants’ harassment order to discourage activi- ties . . . .” 380 atS.,U. In District contrast, expressly Court in this found case “that there no was harassment, intimidation, oppression com- these plainants in their efforts to their exercise constitutional they rights, but were arrested and are being prose- good cuted in their faith for deliberate violation of part of the statute which denounces interference with orderly use of courthouse facilities all citizens alike.” F. at Supp., 876, see also F. Supp., say 848-849. We independent cannot exami- our *8 nation of the record that the District Court erred denying injunctive relief.
Any chilling effect on the picketing pro- as a form of expression good-faith test and that flows from enforce- ment of this valid statute would not, course, constitute impermissible that an enforcement protected invasion of Louisiana, freedoms. Cox supra, v. at 564. Appellants’ “special case that there are establishing circumstances” irreparable injury sufficient to federal justify interven- tion must therefore come down proposition that the against statute was them, not the enforced because Mississippi good officials in regarded faith the violating statute, as the but in harassing bad faith as ap- pellants’ of protected exercise expression inten- no pressing charges tion of expectation the or with no of ob- convictions, knowing appellants’ that conduct taining agree with the District the statute. We not violate did faith not esablish the bad record does Court the a case which “. . . This therefore not charged. is by withdrawing the determina- of equity court federal afford rightly courts could guilt from the state tion of not which could secure protection [appellants] to appeal pursued this Court.” by trial prompt Jeannette, City supra, We have at 164. Douglas v. applications on review strike down hesitated direct we be which have found to of constitutional statutes free- suppress protected unconstitutionally applied Louisiana, Wright Georgia, supra; See Cox v. doms. Carolina, supra. 284; Edwards v. South U. S. adoption of the Appellants argue that the statute courthouse, context of the April on its immediate enforcement the arrests was the statute 11, provide compelling evidence that bring a halt solely and enforced conceived argument by char- picketing. Appellants buttress their acterizing entrapment” the enforcement as “indefensible April against picketing conduct of the statute on for county permitted had almost three which officials “march marked out along the route” months argument necessarily implies This officials themselves. suggestion that had the statute been law when January it been would not have picketing started support There no in the record enforced. whatever The more inference is proposition. reasonable authorities believed until enactment they had no choice but to allow the upon adoption law, any event, In picketing. *9 duty good of the authorities faith to it became the picketing it, prosecute and to that violated enforce argue Similarly, appellants insofar as that that law. was shown enforcement the failure to arrest selective the May 18, those who were to infer short it as reasonable to answer is that is at least did not their regard from the record that the authorities Indeed, period conduct in that as the statute. violating no over five-week the fact that arrests were made period support is itself some for the Court’s District appellants’ of rejection primary appellees contention that used the statute in bad to the discourage faith from picketing registration to foster increased voter of Negro citizens. persuaded argument
Nor are we that, the because hearing pickets’ the evidence adduced at of the con- the throughout duct period sufficient, the would not be the of on a crimi- view to sustain convictions appellants, had no trial, nal was demonstrated that State it the expectation securing of Dombrowski valid convictions. argument mistakenly at Pfister, supra, 490. This supposes “special justifying injunc- circumstances” appear tive relief if it not that the was shown question fact But for the District Court violated. charged; not or of guilt persons was innocence was whether enforced question the statute was against expectation them with no but convictions discourage only protected rights. exercise possibility mere application erroneous of the statute necessary irreparable injury does amount “to the disruption orderly proceedings.” state justify Pfister, guilt at supra, Dombrowski v. 485. The issue trial; innocence is for state court the criminal or required prove appellants guilty was not the State proceeding escape finding in the federal securing expectation had no valid convic- State Appellants say was non- tions.11 Supp., nothing F. at 849: Court indicates as to See 244 “[T]his plaintiffs Supp., guilt innocence of the . . 262 F. at 876: proceeding guilt in this to determine the or innocence “We do not sit plaintiffs ...” *10 contrary, the claims quite but State obstructive, for State’s totally support of devoid the record is not claim. was shown enforcement argue that selective
Appellants of the arrests subsequent that evidence during which Hattiesburg held were parades locale area, including of the downtown streets daytime during off were cordoned the courthouse, obstructed and the sidewalks hours business stat- But this during parades. spectators crowds resulting parades at obstructions is not aimed ute obstruc- prohibits is the All that it city on the streets. ingress interference of or unreasonable tion including court- buildings, public egress to and from adja- or sidewalks traffic on the streets and with houses, was no evidence buildings. There cent to those would place which other nature conduct of that play, let alone evidence into brought the statute have conduct without allowed such the authorities enforcing the statute. Affirmed. Douglas whom Mr. Justice Fortas, with
Mr. Justice dissenting. joins, Pfister, 380 Dombrowski U. S. my opinion,
In be of the court below the decision (1965), requires reversed. is not “unconsti- question agree
I is not conclusion face.” But on its tutional propo- Dombrowski stands for the matter. of the end inappropriate abstention doctrine “the sition that justifiably are where . . statutes attacked cases . . for . . applied or as abridging expression, free face as on their discouraging protected activities.” purpose (Emphasis added.) at 489-490. S., 380 U. courts will establishes that the federal
Dombrowski prose- criminal when “defense State’s grant relief vindication” of adequate not assure First will cution According at 485. rights. S., U. Amendment has Dombrowski, exists when the State this condition purpose faith and for the the criminal law bad invoked rights. the exercise of those harassing disrupting enjoin the invocation Federal courts are available to *11 abusively in- process when that is process state criminal only any ultimate but hope success, voked “without constitutionally protected discourage” the assertion of to City at also Greenwood rights. S., 380 U. 490. See Peacock, (1966). 808, 384 U. S. inter- strong Dombrowski is medicine. It involves stage at threshold of the position power federal administration of state criminal laws. Dombrowski’s remedy justified only rights, when First Amendment by calcu- freedom, imperiled are basic to our are which seek fed- deliberate state assault. And those who lated, heavy eral intervention bear a burden to show prosecuting engaged in is not in use of its them, State, legitimate deliberately in- police power ends, but is voking suppress rights. it to harass or First Amendment Dombrowski is, should never be invoked when the State engaged in substance and in enforcement of truth, criminal laws. Ordinarily, presumption valid the State's motive was law enforcement not inter- and speech assembly carry day. ference with will I problem present case approach with this modest scope. my view Dombrowski’s in so, Even Dombrowski judgment, judg- commands reversal in ment this case. Dombrowski precious little, means if I submit, presumption supporting state action is not overcome facts such those before us as now. January 22, 1964, rights organizations On civil whose represented are members adherents class ac- this by appellants began picket County tion the Forrest voting registration which is office, located the Hatties- burg, Mississippi, courthouse. The was de- signed protest racial registra- discrimination in voter county Negro encourage citizens of the
tion and of several large was crowd register. day, On there The gathered near the courthouse. persons hundred May every January picketing continued from until culminating Sunday. period initial day except After the pickets arrests on the number the first from seven to 10. varied day of the sheriff picketing, after the
Shortly first thereafter pickets a “march The marked out route.” They route. were allowed to this confined themselves march route to continue unmolested. The directly pickets never front of entrance took the all picketing was, courthouse. The accounts, peaceful sang, first and without incident. days preached, prayed, but within a few chanted, beginning arrests, well before time of the *12 quiet con- slow, confined themselves a walk. This to throughout tinued the relevant dates. in in-
The evidence this record that the or even pedestrians terfered with inconvenienced negligible.1 There is no evidence to that access the was actually pickets courthouse If obstructed. the had disorderly been or had obstructed use of the sidewalks or the courthouse, access to the police, subject to con- stitutional limitations, could have arrested them under respect morning April 10,
1 With to the on arrests made the of unimpressive testimony there are some shreds of such evidence: the agent proceeding the that, home demonstration in outside from (located courthouse) her office in the county to the office the agent (also in courthouse), pickets located the she found that the together “were so close I had to just wait for a moment to get in I line and fell in weaving line with them and started back and forth I steps until reached the front dropped and then out in line”; addition, president the County the of the Forrest Board Supervisors, by attracted to “curiosity any the scene as much as thing else,” “opinion” testified his a side entrance to the by pickets. courthouse was obstructed the pickets The is clear: But the record various statutes.2 by designated march to the line of themselves confined orderly. themselves, quiet were police the at from at distance They considerable remained some including the courthouse, to the three entrances least steps. There top of the courthouse principal one the They obeying, no arrest. was reason their police. disobeying, January 22, months, a half
For two and about pickets by. The police stood 1964, April 10, any Nobody had diffi- prescribed route. marched on building. public culty of or access to passage Legislature April Mississippi Then, 8, 1964, on may fairly be charac- a law I which, believe, enacted police a terized as directive to law, This stopped Hattiesburg should be —forthwith. amended, a manner “picketing ... such as forbade ingress free unreasonably or interfere with as obstruct . . .” . . courthouses . egress to and from . day the same signed by The was the Governor on law Legislature, it was and delivered passed the State law officials Hatties- messenger waiting enforcement law was burg following day. on As soon as the it brought April 9, they those read aloud officials was disperse. to the them to There pickets asked following only group pickets. then small march when morning, returned A route, large first were made. number of arrests *13 picketing 35 or 40 of persons day, them, were on that In afternoon, because arrests. the same anticipated a only picketing. some children were woman and school 2 (1966 Supp.) (disorderly- Miss. Ann. Code §§2087.5, 2087.9 conduct) (disturbance ; Supp.) Miss. Code Ann. (1966 § 2089.5 (disturbance peace); public in Miss. Ann. 2090.5 Code (1957) § place). early period record in fact shows that peace arrests for breach of the were made. some
626 nine April day, 11, the next were arrested. On All were arrested. The' demonstrating; seven persons were Sunday. On every day except continued and all were pickets, there were nine May 18, again, picketing. There was no further arrested. none of the morning April 10,3
Apart from a evidence arrests were made is there shred of times when sug- 8 was violated. There is no April that pickets present that the few on the afternoon gestion 10, April May on or on blocked access 18, egress courthouse, to or from the or obstructed walks.4 compels following
I submit this record conclusions: The pickets prosecuted were arrested and “without
any There is no hope ultimate success.” evidence their unreasonably activities “obstruct ... or [ed] ingress egress any to and from . . . interfere[d] courthouses . . . .”
The meager, insubstantial evidence of inconvenience I pedestrians, which have 1 4 *14 (opinion Louisiana, (1966) S. Brown 383 U. record shows assume that this J.). if we Even Fortas, not inconvenienced, that is pedestrians some that of the courthouse. blocking the doors thing as the same present the like proceeding that, injunctive I in an agree prove the violation not have to does action, the State it doubt establish beyond a reasonable of law Dombrowski But, if protected. constitutionally is not more certainly show must anything, the State means in than this record. there demonstrate sequence their The arrests and access to the policing engaged not here
the State was in a of the but sidewalks, freedom or even courthouse voting-rights demon- an end to the plan put deliberate pickets (1) the facts This is shown stration. themselves; police laid out marched the line half and a interfere for two police did not (2) that law, a rifle-shot legislature passed months; (3) that (4) situation; neatly particular to this directed picketing; up out to break thereupon police set and characteristics number, volume, (5) that obstructive on the certainly were more days in arrests than on other days of the last three occurred and was tolerated. which the demonstrate that my In conclusions opinion, these good-faith result of were not arrested as a pickets were arrested They of the criminal law. administration orderly stop peaceful, to a purpose putting for the protected by the First Amendment demonstration They here. in the manner of execution principle and access to the arrested because blocked were not powerful There is evidence this record courthouse. anticipate possibly cannot a conviction that the State withstand the tests this which will Court First Amendment and Fourteenth in the has laid down *15 areas; Amendment requires indulgence and it more than this permitted involving Court has in cases First Amend- ment say freedoms us to the State has made showing tolerable contrary.
I reverse would the judgment below and remand for the entry of an appropriate order.5
5In majority view of fact that issue, does not reach the I inappropriate consider it anti-injunction to discuss whether statute, C. U. S. constitutes a bar to Dombrowski § relief See, City in this however, case. Peacock, Greenwood (1966). U. S. summarized notes support be used to a above, could not conviction under language specific, narrowly phrased of this statute. Louisville, Thompson See 362 S. 199 cf. (1960); U. supra. See n. each of these occasions fewer than pickets There on were walking grassy plot route,” path around a on the “march measured well over length. feet There is some indication walking contention these occasions the a. (cid:127)closely Judge Rives, dissenting bunched. But as Circuit in the below, pointed out, pickets walking closely court bunched could possibly any have obstructed entrance to the courthouse for necessary proceed more than a small fraction of the time around plot. event, anyone having And in there is no evidence of actually impeded attempting gain been access to the courthouse on these dates.