Joan Beckerman v. City of Tupelo, Mississippi, a Municipal Corporation

deci- the Board’s summary, we affirm fund obtain the trust sion the strike to that bargain good faith refusal to

was not a in the defects

despite alleged structural

trust; attempt did not that the union of a collective employer’s choice

coerce the that the union

bargaining representative; that are a strike benefits

did not strike over subject bargaining; and

nonmandatory designation clause was a the trustee subject bargaining.

mandatory AFFIRMED. of the Board is order BECKERMAN, al., et

Joan

Plaintiffs-Appellants, TUPELO, MISSISSIPPI, A

CITY OF al.,

Municipal Corporation, et

Defendants-Appellees.

No. 79-3666. Appeals,

United States Court

Fifth Circuit.*

Unit A

Dec. 1981. * case, 9(1) Former Fifth Circuit of Public Law 96—452—October

505 regula- permit system

scribes a and conduct exceptions. Appel- provides but no tions are uncon- allege that the ordinances lants they vague are stitutional because impermissible pri- overbroad and constitute upon speech. or restraints freedom upheld both ordinances in full district court exception provision, with the of one which Tupelo. Ap- subsequently was amended judgment to this pellants appealed the judgment We reverse the court. respect but one of district court with to all challenged provisions. AND I. JUSTICIABILITY STANDING va Appellants challenge the facial pa lidity provisions of various of both equipment rade and sound ordinances overbroad, prior restraints being vague, Although neither upon speech. freedom of ques appellee court nor the has district standing appellants’ tioned to make these challenges, necessary to address we find it briefly. the issue When a statute is chal face, challeng lenged on its the facts of the irrelevant; ing party’s case are the court is Lewis, Hill, Oxford, David Ronald W. G. constitutionality asked to determine the Rubin, Miss., Robert American Civil Liber- Nevertheless, the statute as written. Union, Jackson, Miss., plaintiffs-ap- ties for party’s claim must meet the constitutional pellants. . requirements controversy” of a “case or in Mitchell, Jr., Guy Murry, Thomas D. Tu- justiciable. order to be Miss., pelo, defendants-appellees. for appellants have not been Because parade permit refused a under the ordi nance, challenges their to its constitutionali anticipatory. First ty are somewhat however, area, permit Amendment courts GEE, WILLIAMS, Before TATE and Cir- See, challenges regulations. to state facial Judges. cuit Oradell, g., Hynes Mayor e. v. (1976); 96 48 L.Ed.2d 243 S.Ct. WILLIAMS, Judge: JERRE S. Circuit Society International for Krishna Con Eaves, (5th Appellants, members of the International v. F.2d 819 sciousness 601 (InCAR), 1979). Against licensing Committee Racism filed Cir. In the case of a stat injunctive seeking containing allegedly suit in district court re- excessive discre ute against tion, lief parade challenges permitted the enforcement of facial are be equipment sound ordinances enacted cause the mere existence of such discretion City Tupelo, Mississippi.1 parade The is unconstitutional. v. Shuttlesworth permit application sys- Birmingham, ordinance contains a 394 89 U.S. Eaves, tem, regulations regarding (1969); 162 the conduct of L.Ed.2d ISKCON allege paraders, exceptions Appellants to the 601 F.2d at 823. need not ordinance. abuse of discretion equipment pre- sound ordinance also that there has been an Appendix. 1. The relevant sections of the contained ordinances are to a prerequisite specificity as a facial attack. Thorn describe with sufficient and limi- 88, 97, Alabama, hill U.S. permit may tation situations which a 736, 741, (1940); denied; second, L.Ed. 1093 Schneider be whether it an constitutes State, 308 84 L.Ed. impermissible prior upon restraint the exer- Thus, (1939). appellants may challenge third, cise of free speech; and whether it is licensing ap parade statute. Because vagueness. void for pellants permit have been refused a under ordinance, equipment they

the sound have ( n ) Overbreadth unquestioned standing challenge or that Appellants argue that dinance. allowing deny the licensor to if he Appellants standing have to chal parade “provoke finds will disor lenge provisions those of both the derly conduct” is overbroad because the equipment reg and sound ordinances which “disorderly may term conduct” include ac permittees ulate conduct of because protected tivity by the First Amendment. they are entitled fair notice of the con A law is overbroad if it “does not aim prohibit. duct attempt ordinances specifically at evils within the allowable punishment The fear for violations of the sweeps area . of control.. but within its may appellants ordinances inhibit as well as ambit other activities that constitute an contemplate others who may holding pa exercise” of First rights. Amendment using rade or a sound truck in the exercise Alabama, Thornhill v. at First rights. their Amendment This is a S.Ct. at 741. A will be law voided for injury standing upon sufficient confer however, overbreadth, its unless deterrent McConn, appellants. Reeves 631 F.2d protected effect on activity is substantial. (5th Eaves, 1980); Cir. ISKCON v. Oklahoma, 601, 615, Broadrick v. F.2d 822-24. 2908, 2917, L.Ed.2d a licensing challenged When statute is II. THE PARADE ORDINANCE overbroad, being the claim is that the cir cumstances under which a license 1(c)(1); Arbitrary A. discretion?1 activity protected. denied include which This section of the ordinance authorizes The result is the that state achieves indi permit the of to deny Chief Police a if he through permit rectly the denial of a what parade finds that “the conduct of the will directly through it could not achieve a blan probably injury persons cause to or proper- prohibition activity. gener ket of the See ty provoke disorderly or or a conduct create Tribe, Law, ally L. American Constitutional disturbance.” We discuss the constitution- Thus, (1978). 12-35 purpose the of our § ality of each of clause this section individu- review will be to determine whether this ally. provision may applied prohibit be so as to protected activity degree. to a substantial “provoke disorderly 1. conduct” 1(c)(1) This clause Tupelo’s of authorizes § the ordinance does not include deny conduct, Chief of Police parade to a if disorderly a definition of and be he determines that the “pro- issuance will was so cause the ordinance enacted recent disorderly voke ly, Mississippi oppor conduct.” There are three have an courts not had first, regarding provision: supply issues to tunity one. We assume that the it is meaning “disorderly whether overbroad because it fails to in of conduct” the ordi- provisions licensing containing 2. A statute vir- the statute to be unconstitutional because tually 1(c)(1) by procedural safeguards required identical those to of came be- the § lacked Robinson, 51, Maryland, in fore the Fifth Circuit LeFlore v. 380 U.S. 85 S.Ct. Freedman v. 734, (5th 1970), (1965). 933 434 F.2d Cir. vacated on the The court did not 13 L.Ed.2d 649 grounds Harris, 37, Younger vagueness of 401 91 U.S. and overbreadth reach the issues of 746, (1971), possibility S.Ct. (5th 27 L.Ed.2d 446 669 F.2d 715 of defects. noted the such 434 but 1971). case, Cir. In that the court found F.2d at 945 n.13. engage protected activity. seeking to in Mississippi’s crimi- same as in is the nance Mississippi, in Thomas v. su- disorderly conduct.3 The conviction prohibiting statute nal pra, is just example. The disorder- such an however, definition, has been This also been used with- statute has ly conduct applied to certain as overbroad declared justification to convict out constitutional Mississippi, In Thomas v. situations. orderly walking in tandem in an persons for 1327, 524, 14 L.Ed.2d 85 S.Ct. U.S. flag signs protest- displaying a fashion a con reversed (1965), Supreme Court Ray Brown v. ing racial discrimination. Mississippi of the under 2087.5 viction § field, cert. de 1963), (5th 320 F.2d 96 Cir. 97-35-3) for (the predecessor § Code 191, nied, 902, 11 L.Ed.2d 84 S.Ct. U.S. the statute had disorderly conduct because upon (1963). also cast doubt Decisions criminalize the refusal applied so as to been provisions several of the validity bus person to leave a station of a black regard without disorderly conduct statute policeman because requested by when so See, g., e. Rosenfeld racial situations. the termi hostility people of white in Jersey, New U.S. Virginia, Boynton also See nal. (1972) (use vulgar profanity L.Ed.2d 331 (1960) (find L.Ed.2d 206 meeting school board as speaker at a Virginia statute unconstitu ing a similar Gooding being disorderly person”); “a tional). judgment as to the We make no Wilson, 92 S.Ct. it is constitutionality of that statute since (1972) (overturning conviction L.Ed.2d 408 us, that the term not before but we do find “opprobri- prohibiting use of under statute employed pa in the “disorderly conduct” as language,”); Bachel- words or abusive is overbroad because ous licensing rade statute 564, 90 Maryland, lar v. permits to those applied deny it could selling serving statutory gaged meaning determining in or members lan- interpretation any guage public, in the absence of in or around free entrance or state, Supreme looked to diction- any place Court has or build- such of business Wilson, See, ary g., Gooding v. definitions. e. any building ing, another or to owned 31 L.Ed.2d individual, corporation, partner- or or a instance, however, phrase In this association, ship who fails or or an question, having developed meaning on, disperse when or- refuses to or move law, properly state here assumed to have by any dered so to do law enforcement meaning. The Chief of Police testified any municipality, county, in officer of or supply Mississippi trial that he would committed, which such act or acts are or Code’s definition of “unarmed” to the use of by any law enforcement officer of the State that term in another section of the ordi- Mississippi, any per- other authorized or nance, and, because we assume he intends to son, interpret licensing provision in same (b) re- insults or makes rude or obscene manner, we construe the ordinance as if the gestures, profane lan- marks or or uses disorderly Mississippi statutory definition acts, propos- guage, physical or indecent incorporated. conduct were others, als to or toward another or or dis- Mississippi 97-35-3 reads as § Code Annotated turbs or obstructs or interferes with anoth- follows: others, er or or Disorderly performed acts conduct —certain bus, taxicab, (c) any public in or on while peace penal- provoke with intent to breach of — engaged transporting or other vehicle ties. public charge, for a fare or members of the (1) provoke intent to a Whoever with says, causes a disturbance or does or re- peace, breach of the or under circumstances things spectively, any of the matters or peace may such that a breach of the be to, (b) paragraph supra, thereby: mentioned in to- occasioned (a) ward, any pas- congregates presence crowds or with others in or in the of other upon protecting process senger or shore structure or on said vehicle or structures, public public high- vehicle, a boarding departing or street or or or from said way, sidewalk, upon public any or or any employee engaged in and about motel, public place, any hotel, other store, restaurant, or in vehicle, operation of such or counter, cafeteria, lunch (d) premises refuses to leave the of anoth- shop, theatre, picture sandwich motion owner, requested by any er when lessee, so to do drive-in, beauty parlor, swimming pool thereof, any employee be or shall area, any sports or recreational area or guilty disorderly conduct.... place, any place other of business en- 509 (1970) (overturning 25 L.Ed.2d 570 decision-making. Shuttlesworth, convic- 394 U.S. prohibited “acting 153, tion under statute that (permit 89 S.Ct. at 940 may not be disorderly in a manner to the disturbance of opinion conditioned on licensor’s regarding public peace”). welfare, effects on decency, and morals of community); Niemotko Maryland, 340 narrowing No construction has been 268, 271-72, 325, 327, U.S. 71 S.Ct. 95 L.Ed. by Tupelo city offered council or the (1951) 267 (nonstatutory licensing “prac- Mississippi courts. Because we do not sit as totally tice” devoid of standards is unconsti- “super” legislature, state we not tutional); Connecticut, Cantwell v. 310 U.S. impose narrowing our own construction 296, 306, 900, 904, 60 S.Ct. 84 L.Ed. 1213 Oklahoma, onto the ordinance. Brown v. (1940) (permit may not be conditioned on 914, 2507, 408 U.S. 92 S.Ct. 33 L.Ed.2d 326 licensor’s determination of what is a reli- (1972); Wilson, 520, Gooding v. 405 U.S. at gious cause). But see Hamp Cox New fully recognize S.Ct. at 1105. We shire, 569, 762, U.S. S.Ct. 85 L.Ed. Tupelo fact enacted the ordinance in (1941) (upholding licensing scheme af- good faith and apply intends to it in a fair ter state court narrowed statute so that cannot, however, manner. We overlook the permits could be only proposed denied if the potential applica substantial for overbroad parade would public interfere with conve- Therefore, tion of the ordinance. streets). city nience on A licensing statute of the ordinance is unconstitutional. lacking such controls imper- constitutes an (b) prior Prior missible restraint poten- Restraint because of its tial to sanction the permit refusal of a to Appellants allege also pro that this seeking those engage in constitutionally vision impermissible constitutes an prior re protected activity. straint on First Amendment freedoms. It firmly has been established as a matter of This falls as an imper law that a may regulate state the use of its prior upon missible restraint speech free parks protection and streets for the of the because it is not narrowly drawn to -relate public health, safety, and Village welfare. health, safety, interests, and welfare but Schaumburg v. Citizens for a Better En instead it sanctions the denial of a vironment, 826, S.Ct. 63 on the basis of the so-called “hecklers’ (1980) L.Ed.2d (municipality may require authorizing veto.” In per the denial of a permit for by solicitations organ charitable mit because the licensor has determined the izations); City Birming Shuttlesworth v. activity provoke will disorderly conduct in ham, 394 L.Ed.2d others, the state treads on thin ice. There 162 (permit may required on is a Supreme host of dealing Court cases city streets); York, Kunz v. New 340 U.S. with the issue of the “hecklers’ veto.” In (1951) (city L.Ed. 280 every almost instance it acceptable is not may require permit for solicitation reli for prevent the state to speaker from gious groups); C.I.O., Hague v. exercising his rights constitutional because (1939) 83 L.Ed. (city reaction to him others. See may impose regulations reasonable on use Cincinnati, Coates v. City parks streets) ISKCON v. 615-16, 1686, 1689, 29 L.Ed.2d 214 Eaves, supra (municipal airports may im (1971) (state may punish citizens for pose regulations reasonable on solicitation engaging in conduct “annoying” others); terminals). within Maryland, Bachellar v. 397 U.S. at guidelines

The by used a (state licensor in punish S.Ct. at 1314 cannot Yiet Nam granting or refusing permit, however, a protestors because of the “resentment” of must be related legitimate govern to the onlookers); Gregory Chicago, v. 394 U.S. health, ment interest in protecting safety, 111, 117, 946, 949, 89 22 S.Ct. L.Ed.2d 134 welfare, and and precisely must be (1969) (disorderly and conduct conviction cannot narrowly drawn prevent to discretionary orderly stand defendant acted in an when

510 persuasion marchers exceed the bounds of hos- surrounding crowd became but

manner York, 394 realm argument v. New U.S. and enter the of incite- tile). also Street and See S.Ct, 1365, 1354, action, 576, 592, they 22 L.Ed.2d 572 can 89 ment to imminent lawless Carolina, Ohio, 372 (1969); Brandenburg U.S. 395 punished. Edwards South be 680, 684, 229, 237-38, 444, 447, 1827, 1829, 9 L.Ed.2d 697 83 23 L.Ed.2d S.Ct. 89 S.Ct. U.S. 1, Chicago, 321, 337 U.S. (1963); Feiner, Terminiello (1969); 340 at 71 S.Ct. 430 U.S. 895, (1949); 894, L.Ed. 1131 4, 93 69 of punishment S.Ct. or curtailment at 306. Such 359, California, 51 283 U.S. Stromberg v. on a rights must be based First Amendment (1931). Compare 532, pre-nascent 75 L.Ed. rights, S.Ct. not a present abuse of 315, 321, York, 340 U.S. Feiner v. New of future misconduct. fear 303, 306, (1951) in which L.Ed. 295 S.Ct. Disorderly and incite conduct speaker “passes when a the court said that pro to properly statutes are intended ment persuasion and argument of the bounds Amend punish the abuse of First hibit and he be incitement to riot” can undertakes to rights. narrowly A tailored statute ment disorderly conduct. Yet the convicted for goal constitutionally is ac accomplish this may un- “A state not Court also stressed: designed, ceptable. This ordinance is not so communication duly suppress free deny a permits however. It the Chief to conserving guise de- views.. . under because, opinion, un permit merely in his 320, 71 at sirable conditions.” Id. at S.Ct. will conduct on the of others lawful firmly 306. “It is established that under “Narrowly drawn parade. from the result public expression our Constitution regulating these activities are not statutes prohibited merely because may ideas not be ” Gregory, 394 impossible pass. to .. . U.S. themselves are offensive to some ideas J., (Black, concur at at 953. S.Ct. York, of their hearers.” v. New Street the ordinance ring). But we cannot rewrite at at 1365. U.S. S.Ct. duty city. for the “It is not our and indeed The existence of hostile audi power our to set out and define not within ence, alone, standing has never been suffi precision just what statutes can with punishment sustain a denial of or cient to like lawfully enacted to deal with situations rights. for the exercise of First Amendment ” one confronted here. . . . Id. at This Court has said: fact that some “[t]he written, at 950. The speech may disagree per stir listeners to — however, clearly upon First trenches haps disagree violently even to not —does rights. Amendment permit regulation.” that fact alone Wie Seaver, (5th gand v. F.2d Cir. (c) Vagueness denied, 1974), cert. 95 S.Ct. Tupelo attempts through this City The (1975). may 44 L.Ed.2d 83 A state not prevent provision to unlawful conduct that keep by depriving law and order citizens of granted might applicant result if an Aaron, rights. Cooper their permit. does not bar Constitution “[T]he 1401, 1408, 3 L.Ed.2d 5 conduct, regulating enactment of laws even Tupelo may deny press, though speech, connected with assem- permit simply because of the fear of ad only the bly, petition, and if such laws bar verse reaction to the marchers others. carefully deemed obnoxious and are conduct powerless The state is not narrowly forbidden con- aimed at that prevent imminent violence or lawlessness at Gregory, 394 at duct.” resulting from a clash between the march J., (Black, concurring). arises, If this ers and onlookers. situation however, provision, is not so police try first This disperse must crowd, attempt prohib carefully and if that tailored. an control becomes im conduct, disorderly it silences First possible, the marchers be arrested. denying Feiner, rights by citizens ac at 309- Amendment J., (Black, dissenting). Likewise, streets because the Chief if the cess

511 welfare, order, Police thinks that likely safety, decency, good criminal conduct is morals provision to follow. This is unconstitution- or convenience of the community would be ally vague since it contains no instructions adversely affected. The Court held that “a directing the Chief in the formulation of his municipality may empower licensing its opinion. Arbitrary discriminatory will, law officials to roam essentially dispens- at prevented enforcement cannot be ing withholding unless permission speak, or to as- provide statutes definite semble, standards for picket parade or according to their those who apply Grayned them. opinions of own regarding potential the effect ” Rockford, 104, 108-09, of the activity. . .. Id. at 89 S.Ct. at 2294, 2298-2299, (1971). L.Ed.2d Laws which public vest officials with unlim- Tupelo ordinance suffers from Id.; ited discretion are vagueness. void for the same defect condemned in Shuttles- Coates, 1688; at S.Ct. at worth because it conditions the exercise of Gregory, 394 U.S. at 89 S.Ct. at 951 First rights Amendment virtually on the J., (Black, concurring); Shuttlesworth, 394 unguided opinion of an regarding official 151-152, 938-939; U.S. at 89 S.Ct. at potential effects' on proposed pa Thornhill, 310 U.S. at 60 S.Ct. at provision rade. This of the ordinance is undefined, 741 — 742. This grant broad of unconstitutional. authority to the may pre Chief of Police conduct, vent obnoxious but as Justice Rob a 3. “create disturbance" C.I.O., erts Hague noted in 307 U.S. at Appellants allege that this clause is over- prohibition “the all encompasses broad because it constitution- speaking undoubtedly ‘prevent’ will such ally protected activity. “Disturbance” is eventualities. uncontrolled official [The] Mississippi defined in the Code as “includ- suppression of rights] Amendment [First ing but not restricted to. . . loud offen- cannot be made a duty substitute for the to peace.. sive talk. . . breach of . threats and ” maintain order. ... attempts to intimidate.” Miss.Code Ann. 1(c) This clause of is unconstitutional § 97-35-15 disorderly § Unlike the because its terms vague are so that statute, conduct this given law has been a public officials chosen to enforce the ordi- narrowing construction Mississippi nance act in an arbitrary and discrimi- Court, Supreme Burnley, McLaurin v. natory granting manner in denying per- or F.Supp. (N.D.Miss.1967), aff’d, 401 F.2d mits and still completely within the (5th 1968), denied, Cir. cert.

scope of the ordinance. (1970), 26 L.Ed.2d so punishes only non-peaceful that speech. probably 2. “will injury” cause It cannot punish be used to those whose Appellants provision contend that this peaceful speech anger is arouses in others. vague because it clearly does not define upon We are not called judge limits of power. the Chief’s provision This constitutionality provision penal this as a if, authorizes the deny Chief to a in statute, however. We must evaluate the opinion, his probably “will cause constitutionality part of this as a injury persons property.” The term licensing empowering of a ordinance pub- “probably” simply vague too and indefi- lic official deny public access to the nite and does not control adequately the streets if he believes proposed pa- that discretion of the Chief in his determination will rade result in conduct which the grant of when to deny permit. government legitimate has a pe- interest in Shuttlesworth, such, nalizing. U.S. at As of the ordi- Supreme S.Ct. at Court invalidated nance is unconstitutional because it vests in Birmingham parade licensing ordinance the licensor unbridled discretion to deter- permitted when, which deny the licensor opinion, likely a mine in his it is if, health, license opinion, his will criminal conduct occur in the future. their First rights by imposing the Amendment licensing The statute condemned C.I.O., arbitrary an and overbroad time cut-off for Supreme Hague supra, in v. Court concede, parades. Appellants they all provision a similar to this one: contained must, City Tupelo legiti- the has a public the official was authorized to refuse protecting security mate interest in the if, permit opinion, in his to do so would citizens, peaceful environment of its “riots, disturbances, disorderly or prevent especially night. City explains, at As the assemblage.” at at policemen duty night the number of on at is 964. The Court refused a free hand to this during daytime smaller than and the type of official discretion to control job complicated by is further the darkness. rights First Amendment of citizens. Like- however, Appellants argue, p. that the 6 m. wise, York, supra, in Kunz v. New arbitrary light is cut-off because it remains permit system Court struck which down Tupelo past p. good part in well 6 m. for a permit public authorized the denial of a if a year. appellants of the The result is that proposed activity official believed the would unnecessarily and others are restricted in be unlawful. they may parade. the time in which We part Tupelo This of the ordinance agree with this contention. suffers from the same defect. It allows a Tupelo’s Abernathy Conroy, reliance on permit official deny upon to based Charleston, supra, in which a South Caroli- opinion his own of whether future conduct upheld, na misplaced. ordinance was is The will probably be unlawful. In this Court’s prohibited parades Charleston ordinance af- opinion Eaves, supra, in ISKCON we p. upheld ter 8 m. and was because of the length discussed at unconstitutionality city’s nighttime security. interest in Id. at of a licensing in a ordinance which Tupelo prohibits pa- The ordinance sanctioned the denial of a to those m., and, p. rades after 6 City as the con- who provisions had violated of the ordi cedes, light Tupelo it remains in past well nance in past. 601 F.2d at 832-33. The p. year. Tupelo m. for much of the If inferences to be past drawn from conduct parading daylight wants to restrict to were justify insufficient the denial of hours, so; however, may regula- it do permits in the future. This tion must be drawn to insure minimal intru- Tupelo ordinance on an rests even weaker rights. sion on First Amendment past foundation than evidence guilt; recognize We difficulty Tupelo faces with no evidence whatsoever the is Chief pinpointing in the exact time at which the empowered predict future conduct. If nighttime security problems arise. In strik- denials under the Atlanta ordinance in ing provision, say we do not mean to Eaves past based on imper occurrences are daytime that the cut-off must fluctuate dai- missible, then certainly Tupe denials under sunset, ly to reflect the actual time of the lo’s ordinance which are based on no evi although regulations based on the time of whatsoever, dence are unconstitutional. sunset are common and are not difficult to City may administer. The choose a later B. Section 2 time, Charleston, as did which would better City Tupelo justified interests, accomodate First Amendment regulating time, place and manner of may it vary according choose to the time parades; however, it any must not do so in season daylight savings and/or whether arbitrary overly restrictive manner. time is in p. effect. The 6 m. cut off Grayned City Rockford, at months, during be reasonable the winter 2303; 92 S.Ct. at Cox v. Loui but is unreasonable the summer when 2302— siana, 559, 562, 476, 479, 13 the sun sets p. as late as 8:30 m. As (1965); Kunz, L.Ed.2d 487 written, this section of the ordinance is 315; 71 S.Ct. at Abernathy Conroy, 429 unconstitutionally overbroad because ex- F.2d (4th 1173-74 1970). Appel Cir. beyond legitimate regu- the bounds of tends lants contend that Tupelo lation. unduly restricts 3(a) 3(d)

C. D. Section Tupe In this section the attempts regulate This section also attempts regulate of lo the conduct the by requiring of marchers conduct that “[a]ll by requiring paraders marchers that all be persons involved shall conduct themselves unarmed, up line no more than four manner, orderly in an profanity and no abreast, street, right-hand in the lane of the shall Appellants be used.” assert that the fewer, in units of 100 or with fifteen foot “orderly manner” “profanity” terms and pur intervals between units. The claimed vague are and overbroad. pose regulations preserve pub of these is to safety. lic Tupelo desires to accomodate city

the marchers and traffic simultaneous (a) “Orderly manner” ly by allowing the marchers to use one lane Appellants argue that this term is on-coming of the street and traffic the oth so indefinite that “men of common intelli er. The are required marchers to leave gence necessarily guess must as its mean spaces segments fifteen foot between police get so firetrucks ing. Connally cars can ...” v. General Construction through quickly emergencies. in of case Co., 385, 391, 126, 127, S.Ct. nothing regula We wrong find with these (1926). L.Ed. 322 We construe this term such; however, tions as the fact that vari just “disorderly as we did the term con groups (students gov ous of marchers and 1(c)(1), duct” in our discussion of Section agencies) exempted ernmental are from the supra. Following reasoning supra, the regulations by Section 5 of the ordinance however, we must conclude that the term is questions Equal raises under the Protection acting overbroad. Persons in a Clause of the Fourteenth Amendment. Police “orderly” yet manner other than still be 92, pt. Chicago Mosley, De of 408 U.S. constitutionally protected. “Disorderly con 2286, 2289-2291, 33 L.Ed.2d S.Ct. orderly duct” and “conduct... in an man (1972). Because First Amendment equally ner” are For this rea overbroad. stake, rights are at we must scrutinize care son, we strike this of the ordinance. fully this to determine “whether appropriate is an governmental Coates, there inter supra, invalidating (facially or See suitably est furthered the differential “annoying”' dinance that criminalized be 95, treatment.” Id. at 92 S.Ct. at 2289. encompassed many types havior because it Casualty Surety See also Weber v. Aetna & clearly beyond proper bounds conduct Co., 164, 406 U.S. 31 L.Ed.2d S.Ct. (inva regulation); Gregory, supra, of state (1972); Blumstein, Dunn v. 405 U.S. grounds lidating on overbreadth a disorder (1972); 92 S.Ct. 31 L.Ed.2d 274 ly conduct statute which could be used to Reed, 71, 75-77, Reed v. 404 U.S. punish citizens who refuse to move on when 251, 253-254, (1971). 30 L.Ed.2d 225 by policeman). asked to do so groups excepted from the ordinance problems will create traffic and threats to (b) profanity used” “And no shall be public safety physical pres- caused paraders ence of the in exactly the same merely This clause does not seek way any parade Thus, Tupelo would. if time, regulate place, and manner of control, truly were interested in traffic it rather, directly prohibits a cer parades; confine would all marchers to one lane and speech. outright prohibi An tain kind groups City of 100 or fewer. Because the only be sustained if it tion such as can willing disregard problems so the traffic speech. proscribes unprotected Plummer circumstances, in accept those we cannot Columbus, 2, 3, City of the contention that traffic control is a sub- Wilson, (1973); Gooding 38 L.Ed.2d long exceptions stantial interest. As as the supra. profanity The issue then is whether ordinance, regulations remain date, unprotected speech. To constitutes 3(a) constitute an § unconstitutional dis- only Supreme crimination. has identified two Court groups excepted those from the ordinance speech into which unprotected categories obscenity, fall: might possibly risk” profanity pose “security less of than other Roth, Regents trial, Board of groups. As the conceded at (1972) fight- and 33 L.Ed.2d 548 excepted groups disrupt the flow of traffic words, Hampshire, Chaplinsky v. New ing emergency vehicles to the same extent L.Ed. 1031 any group parading through other refers to 47-29-47 of Appellee § difference, then, streets. The asserted meaning Mississippi regarding the Code speech must be that the content in Mis- application profanity statutes demonstrations, protests, groups involved in Mississippi Supreme sissippi. The Court advocacy poses greater security risk “any has construed the term to mean words groups pa- than that of traditional whose appreciation of divine ven- importing an merely rades tend to be festive. geance, implying divine condemna- ” State, 160, tion v. 147 Miss. 113 . .. . Orf treatment of Differential (1927) (sustaining conviction for So. 202 speech groups based on the content of their saying public place). an “damn” Such Mos is established to be unconstitutional. application clearly runs afoul of of the law 95-98, ley, 408 at 92 S.Ct. at 2289- U.S. v. constitutional freedoms. Cohen Califor 2291; 536, 581, Louisiana, Cox U.S. nia, 1780, 29 91 S.Ct. L.Ed.2d 453, 470, L.Ed.2d 471 (1971) (overturning conviction under by Tupelo attempts justify to the ordinance because, although peace breach of statute asserting purpose of the differenti that the crude, vulgar language by and used defend- prevent “security ation is to risks” anyway personally ant was not in erotic or posed by groups excepted other than those constitutionally abusive and was therefore concept from the ordinance. The of “secur protected). While it is conceivable that ity special significance in risks” takes on circumstances, profanity might, in some First York Amendment context. See New words, also obscenity fighting constitute States, Times Co. v. United U.S. only this statute does not confine itself to (1971) (contention S.Ct. 29 L.Ed.2d 822 situations, those and it has not been so Pentagon Papers that disclosure of would to Thus, by Mississippi narrowed courts. jeopardize security some extent national portion this of the statute is unconstitution- inadequate prior was reason for restraint al. upon publication). uphold disparate To this Tupelo’s designation treatment on of based 5(b) (c) E. and Sections risks,” we groups “security some would Appellants 5(b) challenge next Sections subject parades' have to find that those (c) Equal and as violative of the Protection direct, “surely the ordinance will result grant exemptions Clause. These sections ” immediate, irreparable damage. and . . . participating students in educational activi- J., (Stewart, at at 2149. Id. S.Ct. ties, (5(b)), governmental agencies, and concurring). totally The record is devoid of (5(c)), licensing regula- from both the and immi such evidence. “Predictions about tory requirements. provi- analyzing In this disruption [parading] from involve nent question sion the crucial is whether there is judgments appropriately made on an indi legitimate important governmental and basis, by of vidualized means broad interest which will be furthered the dif- ” Mosley, classifications. . . . U.S. groups. ferential treatment of various Car- 100-101, 92 S.Ct. at 2292-2293. also See Brown, ey Carey, supra. Tupelo groups has classified (1980); L.Ed.2d 263 Grayned City speech based on the content of their with Rockford, supra; Dept. Police City showing any legitimate compelling out Chicago v. Mosley, supra; Dunn v. Blum stein, justify interest the differential treat 31 L.Ed.2d Thus, of the ordinance is justification 274. The offers as a ment. section for this differential treatment unconstitutional. fact that EQUIPMENT

III. THE SOUND raucous. Kovacs Cooper, 336 U.S. at ORDINANCE at 453. Appellants challenge three sections of Tu- determining the constitutionali

pelo’s equipment alleging sound ordinance ty of an regulating ordinance equip sound that IB vests unbridled discretion in § ment, we must carefully look at the ordi granting Chief of Police in the denying purposes nance and the which it is to serve. permits and that 2A and 3 are over- §§ represent ordinance “must a considered they prohibit broad because constitutionally legislative judgment particular that a mode protected activity. expression give way has to to other com ” pelling society. needs of ... Broadrick v. A. IB Oklahoma, 413 U.S. at 93 S.Ct. at This section details the information an “weigh 2915. The court heavily must applicant provide must the Chief of Police fact that communication is involved and operate in order to obtain a sound require regulation that narrowly tai equipment. Appellants challenge por- legitimate lored to further the State’s inter tion of the provides section which that “the McConn, est.” Reeves v. 631 F.2d at 383. applicant shall demonstrate to the Chief Police the noise level to be emitted Appellants are correct in their equipment.” They contend that this section legal argument equipment per that sound is defective because it authorizes the Chief mits only through appli be denied the permit to refuse a if he determines that the narrowly cation of drawn statutes which equipment emits noises which are loud and circumscribe discretion li allowed the raucous giving objec- without narrow and decision-making. censor in his Saia v. New tive standards to be used in the determina- York, supra; McConn, supra. Reeves v. tion. particular part ordinance, This of the how protects The First Amendment ever, does not run principles. afoul of these equipment use of sound as a form of ex All requires that is that applicant pression. York, 558, Saia v. New 334 U.S. level; demonstrate the noise there is noth (1948); 92 L.Ed. 1574 Reeves ing on the face of the ordinance that can be McConn, supra. right The to use sound interpreted to mean that the Chief of Police however, equipment, subject is to reasona deny permit can a based on this demonstra regulation by ble government. Kovacs tion. Cooper, 336 U.S. S.Ct. L.Ed. statute, In applying the course of this if The might distraction that permits the Chief of Police denies because equipment caused such dangerous can be of the demonstrated noise level of the in traffic-filled areas and a nuisance in resi equipment, applicant will be able to dential governments areas. State and local argument appellants make the attempt legitimate have a regulating interest today. make judging only Because we are equipment use of sound to accomodate the validity statute, the facial of the we cannot needs of the community as well as the applied assume that this is how it will be speaker. and determine constitutionality its in that York, supra, Supreme Saia New setting.4 city Court invalidated a ordinance which gave official uncontrolled discre- B. Section 2A tion in granting denying permission equipment prohibits use sound This city on streets. section the use of sound year, upheld equipment any next the Court at time in “which are an ordinance areas prohibiting entirely purposes.” the use of zoned for equip- Appellants sound residential ment if the sound emitted provision was assert loud and is overbroad be- permit, 4. The record does not indicate Plaintiffs were that a denied but the denial has ever been denied on the basis of noise level. was based on another section ordinance. patible activity neighborhoods First Amendment with certain prohibits cause it and cer- activity in areas such has not been where neighborhoods tain areas within peo- where incompatible pat- with “the ordinance, shown to be ple however, pre- reside. This tern” of the “normal activities” of all resi- incompatability sumes because an area is dentially Grayned zoned areas. zoned residential. Often times areas zoned Rockford, at S.Ct. at resideptial include structures other than 33 L.Ed.2d 222. homes, schools, such as churches and which incompatible are not with the use of sound Municipalities may impose reasona- equipment. “Predictions about imminent time, place, ble and manner restrictions on disruption from equip- use of sound [the Saia, equipment, use of sound judgments involve appropriately ment] 1150,provided regula- at at basis, made on an individualized tions are narrowly sig- tailored “to further ” means of broad Mosley, classifications.” government nificant interests. . . . 408 U.S. at at 2292-2293. Grayned, 408 at S.Ct. at 2302. Because the ordinance extends its total and place, pattern nature of a ‘the of its “[T]he non-discretionary prohibition to areas which activities, normal regu- dictate the kinds of incompatible have not been shown to be time, lations place, and manner that are ’ with equipment, sound it is unconstitution- question reasonable. . . . The crucial ally overbroad. expression whether the manner of is basi- cally incompatible with the normal activi- particular

ties of place particular at a C. Reeves, time.” quoting 631 F.2d at prohibits operation This section Grayned, 408 at at equipment any sound location between Appellants prohi- contend that the blanket p. the hours of 6:00 m. and 9:00 a. m. equipment bition of the use of sound in Appellants argue that this is over- areas zoned residential is overbroad because because, nighttime broad while restrictions it in effect creates an presump- irrebuttable might justifiable, be prohib- this ordinance tion that all areas zoned residential are at activity during its hours when does all incompatible times with equip- sound not have a substantial doing interest in so. ment. The considerations discussed in our McConn, supra, Reeves v. invalida- we review parade of 2A above and 2 of the § § provision ted a equipment in a sound ordi- applicable ordinance are here. This time Houston, nance city enacted Tex- provision limitation must narrowly be tai prohibited which the use of sound trucks lored to serve a substantial interest. in the except downtown business district Grayned, 408 U.S. at 92 S.Ct. at for certain Sunday. hours on We con- City attempts justify 2303. The this carefully sidered the nature of the down- provision by stressing security the increased town area in Grayned accordance with problems night, as well as the need to provision test and concluded that was protect enjoyment citizens in their of the although overbroad because city had peace tranquillity nighttime. legitimate preventing interests disruption area, in provision the downtown was accept City’s justifications We narrowly not only tailored to serve those for the ordinance to the extent that it cov interests. Id. at 384-385. ers activities after sunset. As we noted in We find that of the our parade discussion of the Tupelo ordinance is ordinance, however, overbroad supra, because there daylight beyond extends deservedly pro what are Tupelo p. in after 6:00 m. for a considerable tected actual residential areas. We do year. of the This ordinance reaches imply that equipment per sound must broadly reasonably necessary more than is (cid:127) mitted in totally areas which are protect legitimate residen state interests. It tial. equipment Sound prohibits well be incom- trucks in the downtown and sound daylight walking in kind and those shopping up center areas when will line no more many people (4) are abroad. It is unconstitu- four right-hand than abreast in lane of tionally overbroad. (100) less, traffic in units of one hundred (15)

with an interval of fifteen being feet maintained between units. IV. CONCLUSION 1(c)(1), 3(a), 3(d), 5(b), We find that §§ 5(c) parade of the ordinance and 2A§§ (d) persons All involved shall conduct equipment and 3 of the sound ordinance are manner, orderly themselves in an and no Accordingly, unconstitutional. we reverse profanity shall be used. judgment of the district court with

respect provisions. to the above-named We Exceptions SECTION to Ordinance. judgment holding affirm the district court’s apply This Ordinance shall not to: IB of equipment the sound ordinance § constitutional. (b) part; participating

AFFIRMED in students REVERSED educational part. provided they activities are under the supervision

immediate direction and authorities; school APPENDIX (c) governmental agency acting within PARADES, ORDINANCE REGULATING scope of its functions. PROCESSIONS, AND PUBLIC DEMONSTRATIONS ORDINANCE REGULATING OF USE SOUND AND AM- TRUCKS SOUND Requiréd; SECTION 1. appli- Permit — PLIFIERS WITHIN THE CITY OF cation; granting. TUPELO, MISSISSIPPI (c) police The chief city shall Required. SECTION 1. Permit grant a parade, written for such procession demonstration, public other B. To permit, appli- secure said written prescribing ways streets or other cation shall be made to the Chief Police therefor, which may be used unless he City. application of said shall Such describe finds: amplification equipment the sound to be (1) the prob- conduct of the will used, purpose equipment for which such ably injury persons cause property or used, applicant will be and the shall demon- provoke disorderly or conduct or create a strate the Chief of Police the noise level disturbance; by equipment. to be emitted SECTION Time Restrictions. SECTION 2. Area Restrictions. No permit granted shall be under this granted permit A. No shall be parade, section for a procession, or other the use of amplifica- sound trucks or sound public begin p. demonstration to after 6:00 equipment tion on the streets in residential m. neighborhoods. City Those areas of the purposes which are zoned for residential SECTION 3. Participants. Conduct of neighbor- shall be considered residential Participants parades, in such processions Ordinance, purpose for hoods of this or other demonstrations shall conduct amplification and no sound truck or sound themselves in the following manner: equipment permitted will be on the streets any in such areas at time.

(a) persons walking All riding shall be unarmed and explosives without any Restrictions. 3. Time

SECTION DEYO, Flinn Deborah Carroll S. and Crenshaw, Bradley granted for the use of Sheila permit will be No Plaintiffs-Appellants, equipment anywhere sound or sound truck during Tupelo the hours from in the m. p. a. 6:00 m. 9:00 PARK, CITY DEER OF Defendant-Appellee. GEE, Judge, concurring in Circuit dissenting part: in and 80-2100. No. exceptions only, With two minor I concur Appeals, Court of United States opinion in the excellent of the court. I am Circuit. Fifth agree unable to its with invalidation of Section 2 (pp. ordinance 512- 23, 1981. Dec. 513) or of 2A of the sound-truck one (pp. 515-516). provision prohibits parades,

The former

processions and from beginning such after p.

6:00 m. and is struck down because main- basis,

taining nighttime security is its

nightfall Tupelo occurs somewhat later during year.

than that some of the time At seasons, course,

other occurs at about specified

the time even earlier. The time

selected as a seems to me a cut-off reasona- approximation,

ble range leg- within the

islative discretion. Nor does this limitation

seem to me all that different from the one

approved Abernathy Conroy, 429 F.2d (4th 1970), appar- Cir. referred to with approval

ent majority. There the upheld required

ordinance parades p.

the like 8:00 conclude m. Since most

parades two, last for an hour or commenc-

ing p. concluding before 6:00 m. and before p.

8:00 m. seem to me to come to about the thing.

same reasons, permits

For denying similar for

sound trucks in areas and defin- residential

ing these for residen- areas as those zoned purposes legisla-

tial me seem to reasonable approximations admittedly

tive to effect an

legitimate suggestion purpose. Absent a

some fraudulent or invidious motive —the

majority takes each on its face nothing of the suggests kind —these

provisions, perhaps perfect, while seem appropriate

to me valid efforts at rea- regulation

sonable and the action of the

majority striking them down over-exacting.

Case Details

Case Name: Joan Beckerman v. City of Tupelo, Mississippi, a Municipal Corporation

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 23, 1981

Citation: 664 F.2d 502

Docket Number: 79-3666

Court Abbreviation: 5th Cir.