In Walker v. City of Birmingham, 388 U.S. 307 (1967), the Supreme Court held that protesters who deliberately violate an injunction without first seeking to have it modified cannot attack its constitutionality during a trial for violating the order.
Birmingham police commissioner denied permit to civil rights protesters because of their views
In 1963, Birmingham’s ordinances required parade permits, which were to be issued by the city commission “unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.”
A civil rights group associated with the Rev. Martin Luther King Jr. sought a parade permit from the commission but was told by the police commissioner that the group would never get a permit because of its views. The police commissioner was one of three city commissioners.
Birmingham sought injunction to stop planned civil rights parade
Upon learning that the group planned marches on Good Friday and Easter Sunday to protest racial segregation and violence, the city sought an injunction from the circuit court to prevent a violation of the parade ordinance. The court entered the injunction ex parte (that is, without notice to the 133 people named in the injunction).
The civil rights demonstrators marched without a permit although they knew of the injunction; eight African American ministers, including Wyatt Tee Walker and King, were arrested and later convicted of contempt of court. Neither the circuit court nor the appellate court would consider the legality of the ordinance or the injunction.
Supreme Court upheld contempt conviction of protesters for violating court order
The Supreme Court, in an opinion by Justice Potter Stewart, asserted that there were “substantial constitutional issues concerning some of [the ordinance’s] provisions,” as well as with the broad terms of the injunction. The way to challenge those provisions was by bringing a suit, however, not by violating the ordinance and the injunction, Stewart wrote.
He noted the protesters could have sought relief from the courts at several points before violating the ordinance and the injunction. First, they could have sought a permit from the complete city commission rather than being deterred by the police commissioner, who had only one of the three votes. Second, after being turned down for a parade permit, they could have attacked the ordinance in court. Third, they could have sought a modification or dissolution of the injunction in the two days between the injunction and the planned day of the parade.
Four justices disagreed, saying Court should examine whether injunction violated First Amendment
Four justices dissented. In the three separate opinions, Chief Justice Earl Warren, Justice William O. Douglas, and Justice William J. Brennan Jr. argued that the decision in Howat v. Kansas (1922) — upholding the conviction of union leaders who had failed to heed a state subpoena and a strike injunction — did not apply in cases where the court issuing the injunction was violating another law or the First Amendment.
They believed the Court should focus on the constitutionality or unconstitutionality of the injunction rather than the standing of those who were challenging it.
This article was originally published in 2009. Edward Still has practiced in Alabama and Washington, D.C., since 1971. He has brought numerous First Amendment, due process, and equal protection suits for a variety of people: public employees, playwrights, religious and political minorities, and even truckers over state regulation of bumper stickers.