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January 16, 2006

an exercise for Martin Luther King Day

I find it useful to teach WALKER v. CITY OF BIRMINGHAM, 388 U.S. 307 (1967) as an example of legal and moral reasoning. This is the case that originated with the arrest of Martin Luther King and 52 others in Birmingham, AL, at Easter, 1962. It is a rich example for exploring the rule of law, civil disobedience, religion versus secular law, procedures versus justice, and even the way that our moral conclusions follow from how we choose to tell stories.

By way of background:

In 1962, the Southern Christian Leadership Conference (SCLC) hoped to generate massive protests in Birmingham before the end of the term of Eugene 'Bull' Connor, the violently racist Commissioner of Public Safety. As the protests began, Connor obtained a state-court injunction against the marchers. When the SCLC leaders received the injunction on April 11, they stated, "we cannot in good conscience obey" it. King called it a "pseudo" law which promotes "raw tyranny under the guise of maintaining law and order."

At this point, the Direct Action campaign is in crisis: there have been only 150 arrests so far, and no more bail credit is available. On April 12 (Good Friday), Norman Amaker, an NAACP lawyer, says that the injunction is unconstitutional, but breaking it will result in jail time. King disappears from a tense conference, reappears in jeans. "I don't know what will happen ... But I have to make a faith act. ... If we obey this injunction, we are out of business." Leads 1,000 marchers; he and 52 are arrested. He is sent to solitary confinement. In NYC, Harry Belafonte raises $50,000 for bail. The New York Times and President Kennedy condemn marches as ill-timed.

April 15 (Easter Sunday): MLK is released from solitary confinement, still in jail. Writes "Letter from a Birmingham Jail."

April 26: King is sentenced to five days with a warning not to protest. Sentence is held in abeyance.

May 2: Children's march. King: “We subpoena the conscience of the nation to the judgment seat of morality."

May 20: Supreme Court strikes down Birmingham's segregation ordinances. A deal is worked out.

September: bomb kills four little girls at Birmingham's Sixteenth Street Baptist Church.

SCLC appeals King's conviction for two reasons: to overturn the Birmingham parade ordinance, and to prevent future uses of injunctions against civil rights marchers. The case is [Wyatt Tee] Walker v. City of Birmingham. It is not decided until 1967 by the Supreme Court, which upholds King's arrest and imprisonment on basically procedural grounds:

The text of the Supreme Court decision, written by Potter Stewart My commentary and questions
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 two organizations. With whom does the opinion begin? How are those people described? What do we usually think of when we hear "city officials"? How else could these particular men be described? (Hint: the Klan was powerfully influential in city government). How would the narrative read if it started with King and the other civil rights leaders?
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."
How are the petitioners described? Were the petitioners a "mob" -- or a group of citizens assembled to petition for the redress of their grievances? Is there a corect answer to this question?
What is not said about them? What context is missing? What are their alleged actions? How else could the SCLC's actions be described?
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." Apart from unrest, what else might the city officials fear?
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 Is the ordinance constitutional? If not, why not? Why did Connor get an injunction instead of arresting people under the ordinance? Does the opinion explain his motivations? Would it read differently if it did?
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." 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." Does the SCLC "respect" the state courts? Should it? Why are the SCLC's disrespectful words quoted here? (See footnote #3: petitioners "contend that the circuit court improperly relied on this incident in finding them guilty of contempt, claiming that they were engaged in constitutionally protected free speech. We find no indication that the court considered the incident for any purpose other than the legitimate one of establishing that the participating petitioners' subsequent violation of the injunction by parading without a permit was willful and deliberate." Why then quote them verbatim?)

The crowd is described as "hollering and [w]hooping." How else could they be described? Who's being quoted here?
Some of the crowd followed the marchers and spilled out into the street. At least three of the petitioners participated in this march. Meetings sponsored by some of the petitioners were held that night and the following night, where calls for volunteers to "walk" and go to jail were made. On Easter Sunday, April 14, a crowd of between 1,500 and 2,000 people congregated in the midafternoon in the vicinity of Seventh Avenue and Eleventh Street North in Birmingham. One of the petitioners was seen organizing members of the crowd in formation. A group of about 50, headed by three other petitioners, started down the sidewalk two abreast. At least one other petitioner was among the marchers. Some 300 or 400 people from among the onlookers followed in a crowd that occupied the entire width of the street and overflowed onto the sidewalks. Violence occurred. Members of the crowd threw rocks that injured a newspaperman and damaged a police motorcycle. What of factual significance is described here? Why say "Violence occurred"? (NB: Garrow mentions no violence; Branch says MLK was "suddenly seized without warning by police.") Were the city officials justified in their initial fears? (They feared violence; violence occurred.) Does this make the injunction valid?
The next day the city officials who had requested the injunction applied to the state circuit court for an order to show cause why the petitioners should not be held in contempt for violating it. At the ensuing hearing the petitioners sought to attack the constitutionality of the injunction on the ground that it was vague and overbroad, and restrained free speech. They also sought to attack the Birmingham parade ordinance upon similar grounds, and upon the further ground that the ordinance had previously been administered in an arbitrary and discriminatory manner. The circuit judge refused to consider any of these contentions, pointing out that there had been neither a motion to dissolve the injunction, nor an effort to comply with it by applying for a permit from the city commission before engaging in the Good Friday and Easter Sunday parades. Why didn't the SCLC go back to Connor for a permit? How does the Court want the SCLC to treat Connor? Does Connor merit this?
Consequently, the court held that the only issues before it were whether it had jurisdiction to issue the temporary injunction, and whether thereafter the petitioners had knowingly violated it. Upon these issues the court found against the petitioners, and imposed upon each of them a sentence of five days in jail and a $50 fine, in accord with an Alabama statute.
... The generality of the language contained in the Birmingham parade ordinance upon which the injunction was based would unquestionably raise substantial constitutional issues concerning some of its provisions. ... The petitioners, however, did not even attempt to apply to the Alabama courts for an authoritative construction of the ordinance. What is the Supreme Court's attitude toward the Alabama courts? Were those courts legitimate?
...The breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question. But the way to raise that question was to apply to the Alabama courts to have the injunction modified or dissolved.

... The petitioners also claim that they were free to disobey the injunction because the parade ordinance on which it was based had been administered in the past in an arbitrary and discriminatory fashion. In support of this claim they sought to introduce evidence that, a few days before the injunction issued, requests for permits to picket had been made to a member of the city commission. One request had been rudely rebuffed, and this same official had later made clear that he was without power to grant the permit alone, since the issuance of such permits was the responsibility of the entire city commission. Petitioners raise the issue of past discrimination. What kind of discrimination would this have been? (racial) Has race been mentioned at all in the opinion? Why does Justice Stewart say "a member of the city commission" instead of "Connor"? (According to testimony by Lola Hendricks, this is what happened: "I asked Commissioner Connor for the permit, and asked if he could issue the permit, or other persons who would refer me to, persons who would issue a permit. He said, 'No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail,' and he repeated that twice." Why does Steward say that Connor "made clear" his lack of authority to issue permits? (Connor actually did issue permits to other groups.) Why not use the words "asserted" or "claimed"?
This case would arise in quite a different constitutional posture if the petitioners, before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or frustration of their constitutional claims. But there is no showing that such would have been the fate of a timely motion to modify or dissolve the injunction. There was an interim of two days between the issuance of the injunction and the Good Friday march. The petitioners give absolutely no explanation of why they did not make some application to the state court during that period. What was the significance to the Civil Rights Leaders of Easter? Why was it important for them to have innocent people jailed on Good Friday and released on Easter Sunday? How does this reasoning and motivation collide with that of the legal system ?
... The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners' impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom. The "civilizing hand of law." Does this value count against the marchers? Or against Connor? "... which alone can give abiding meaning to constitutional freedom." Alone? Contrast MLK, in Atlanta (1962): "legislation and court orders can only declare rights. They can never thoroughly deliver them. Only when people themselves begin to act are rights on paper given life blood."

 

January 16, 2006 11:56 AM | category: philosophy | Comments

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