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Shuttlesworth v. City of Birmingham

Supreme Court of the United States · 1969 · Civil Procedure

Civil ProcedureConstitutional LawFirst AmendmentPrior RestraintParade PermitsFirst Amendmentprior restraintlicensing discretion

Facts

On Good Friday 1963, petitioner Fred L. Shuttlesworth joined 52 Black marchers led from a Birmingham church to protest alleged denial of civil rights. The group walked four blocks in an orderly manner, mostly on sidewalks, did not obstruct traffic, and was arrested for violating a city ordinance requiring a permit for any parade, procession, or public demonstration on city streets or public ways. The ordinance authorized the City Commission to deny a permit whenever, in its judgment, public welfare, peace, safety, health, decency, good order, morals, or convenience required refusal. Before the march, city officials had made clear to Shuttlesworth and his group that they would not be permitted to demonstrate in Birmingham.

Issue

Whether petitioner's conviction for participating in a march without a permit could stand when the Birmingham ordinance, as written and as administered at the time of the march, vested city officials with broad discretion to deny permits for public demonstrations. Also at issue was whether a later narrowing construction by the Alabama Supreme Court could save a conviction entered under the ordinance as originally written and administered.

Rule

A law requiring a permit before engaging in First Amendment activity on public streets is unconstitutional if it gives licensing officials broad, subjective discretion rather than narrow, objective, and definite standards tied to legitimate regulation of public ways. A person confronted with such an unconstitutional licensing scheme may disregard it and exercise the protected expressive right without a permit. Even if a state court later narrows the law, the conviction cannot stand if, at the time of the conduct, the ordinance was administered so as to deny or unwarrantedly abridge rights of assembly and communication in public places.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Phoenix requires a permit for any march, rally, or public demonstration on streets or sidewalks. The ordinance directs the city manager to issue a permit unless, in the manager's judgment, the event would be contrary to public welfare, decency, morals, or convenience. A neighborhood group led by Elena Ruiz holds a peaceful sidewalk march without applying and is prosecuted for participating without a permit.

Under the governing doctrine, is Elena's conviction likely constitutional?

Explanation. A licensing law for parades or demonstrations on public ways is unconstitutional when it gives officials virtually unbridled discretion through vague criteria such as welfare, decency, morals, or convenience. The majority held that peaceful marching and parading are forms of expression protected by the First Amendment, even though municipalities may regulate streets for traffic and safety. Because this ordinance is an unconstitutional prior restraint, Elena may challenge it without first applying for a permit.