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Shuttlesworth’s first case before the U.S. Supreme Court: 1958: Http://www.lawyerdude.8m.com/5092.html Shuttlesworth v Bd. Of Education (1958) 3 L Ed 2d 145, 358 U.s. 101, 79 S Ct 221. Shuttlesworth et Al. V. Birmingham Board of Education of Jefferson County, Alabama. Appeal from the United States District Court for the Northern District of Alabama. Decided November 24, 1958.

His 3^rd case: 1965: http://www.lawyerdude.8m.com/5089.html Fred Shuttlesworth v City of Birmingham (1965) Volume 15 Lawyer's Edition 2nd 176, 382 US 87, 86 S Ct 211. The important quotation: Justice Douglas says: “Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. (Footnote 5) It "does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat."

Petitioner, a Negro minister who helped lead 52 Negroes in an orderly civil rights march in Birmingham, Ala., in 1963, was arrested and convicted for violating 1159 of the city's General Code, an ordinance which proscribes participating in any parade or procession on city streets or public ways without first obtaining a permit from the City Commission. Section 1159 permits the Commission to refuse a parade permit if its members believe "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." Petitioner had previously been given to understand by a member of the Commission that under no circumstances would petitioner and his group be allowed to demonstrate in Birmingham. The Alabama Court of Appeals reversed the conviction on the grounds, inter alia, that 1159, as written, unconstitutionally imposed an "invidious prior restraint" without ascertainable standards for the granting of permits, and that the ordinance had been discriminatorily enforced. However, the Alabama Supreme Court in 1967 narrowly construed 1159 as an objective, even-handed traffic regulation which did not allow the Commission unlimited discretion in granting or withholding permits, and upheld petitioner's conviction. Held:

1. A law subjecting the right of free expression in publicly owned places to the prior restraint of a license, without narrow, objective, and definite standards is unconstitutional, and a person faced with such a law may ignore it and exercise his First Amendment rights. Pp. 150-151.

2. Picketing and parading may constitute methods of expression entitled to First Amendment protection, and use of the streets for that purpose, though subject to regulation, may not be wholly denied. P. 152.

3. Since the terms of 1159 gave the Commission unbridled authority to issue or withhold parade permits without reference to legitimate regulation of public streets and sidewalks, the ordinance would be, absent a limiting construction, unconstitutional on its face. Pp. 150-151, 153. [394 U.S. 147, 148]

4. The narrow construction that the State Supreme Court placed upon 1159 in 1967 does not necessarily validate petitioner's 1963 conviction; the test is whether the ordinance was actually administered "so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places." Cox v. New Hampshire, 312 U.S. 569, 574 . Pp. 153-155.

5. Since in this case 1159 was administered in accordance with its impermissibly broad language, so as to "deny or unwarrantedly abridge" the First Amendment rights of the petitioner and his organization, the petitioner's conviction may not stand. Cox v. New Hampshire, supra, distinguished. Pp. 155-159.

Jack Greenberg argued the cause for the winning petitioner Reverend Fred Shuttlesworth. With him on the brief were James M. Nabrit III, Norman C. Amaker, Charles Stephen Ralston, Melvyn Zarr, Arthur D. Shores, Orzell Billingsley, Jr., and Anthony G. Amsterdam.

Earl McBee argued the cause for the losing respondent City of Birmingham. With him on the brief were J. M. Breckenridge and William C. Walker.

Lawyerdude says: Potter Stewart was a lackluster government employee. http://en.wikipedia.org/wiki/Potter_Stewart Potter Stewart (January 23, 1915 – December 7, 1985) was an Associate Justice of the United States Supreme Court. Stewart was born in Jackson, Michigan, approximately 30 miles south of Lansing, Michigan, while his family was on vacation. His father, James G. Stewart, a prominent Republican from Cincinnati, Ohio, served as Mayor of Cincinnati for seven years and was later a justice on the Ohio Supreme Court. Stewart attended the Hotchkiss School, graduating in 1933. Then, he went on to Yale University, where he was a member of Delta Kappa Epsilon and Skull and Bones graduating class of 1937. He was awarded Phi Beta Kappa and served as chairman of the student newspaper, The Yale Daily News. He graduated from Yale Law School in 1941, where he was an editor of the Yale Law Journal and a member of Phi Delta Phi. Other members of that era included Gerald R. Ford, Peter H. Dominick, Walter Lord, William Scranton, R. Sargent Shriver, Cyrus R. Vance, and Byron R. White. The last would later become his colleague on the Supreme Court. Life experience: He served in World War II as a member of the US Navy Reserve aboard oil tankers. In 1943, he married Mary Ann Bertles in a ceremony at Bruton Episcopal Church in Williamsburg, Virginia. His brother, Zeph Stewart (also an initiate of Delta Kappa Epsilon and Skull and Bones), was the best man. They eventually had a daughter, Harriet (Virkstis), and two sons, Potter, Jr. and David. He was employed in private practice at the law firm of Dinsmore & Shohl, LLP in Cincinnati and at the age of 39, in 1954, he was appointed to the United States Court of Appeals for the Sixth Circuit.

Supreme Court service: In 1958, President Dwight D. Eisenhower nominated Stewart to the Supreme Court to replace Justice Harold Hitz Burton, who was retiring. Stewart was temperamentally inclined to moderate positions, but was often in a dissenting posture during his time on the Warren Court. Stewart believed that the majority on the Warren Court had adopted readings of the First Amendment Establishment Clause (Abington Township v. Schempp (1963)), the Fifth Amendment privilege against self-incrimination (Miranda v. Arizona (1966)), and Fourteenth Amendment guarantee of Equal Protection with regard to voting rights (Reynolds v. Sims (1964)) which went beyond the intention of the framers. Stewart dissented in Griswold v. Connecticut (1965) on the ground that, while the Connecticut statute barring the use of contraceptives seemed to him an "uncommonly silly law," he could not find a general "Right of Privacy" in the Fourteenth Amendment Due Process Clause. Prior to the appointment of Warren Burger as Chief Justice, many speculated that President Richard Nixon would elevate Stewart to the post, some going so far as to call him the front-runner. Stewart, though flattered by the suggestion, did not want again to appear before--and expose his family to--the Senate confirmation process. Nor did he relish the prospect of taking on the administrative responsibilities delegated to the Chief Justice. Accordingly, he met privately with the president to ask that his name be removed from consideration.[1] On the Burger Court, Stewart was seen as a centrist justice and was often influential, joining the decision in Furman v. Georgia (1972) which invalidated all death penalty laws then in force, and then joining in the Court's decision four years later, Gregg v. Georgia, which upheld the revised capital punishment legislation adopted in a majority of the states. Despite his earlier dissent in Griswold, Stewart changed his views on the "Right of Privacy" and was a key mover behind the Court's decision in Roe v. Wade (1973), which recognized the right to abortion under the "Right of Privacy." Stewart opposed the Vietnam War and on a number of occasions urged the Supreme Court to grant certiorari on cases challenging the constitutionality of the war. He was the lone dissenter in the landmark juvenile law case In Re Gault (1967). That case extended to minors the right to be informed of rights and the right to an attorney, which had been granted to adults in Gideon v. Wainwright (1963) and Miranda v. Arizona (1966), respectively. To the lay public, Stewart may be best known for a quotation, or a fragment thereof, from his opinion in the obscenity case of Jacobellis v. Ohio (1964). Stewart wrote in his short concurrence that "hard-core pornography" was hard to define, but that "I know it when I see it." Usually dropped from the quote is the remainder of that sentence, "and the motion picture involved in this case is not that." He later recanted this view in Miller v. California, in which he accepted that his prior view was simply untenable. Stewart remained on the Court until his retirement in July 1981 at the age of 66. He was succeeded by Sandra Day O'Connor, the first woman to serve on the Supreme Court. He died in 1985 after suffering a stroke near his vacation home in New Hampshire, and was buried in Arlington National Cemetery.[1] After his retirement, he appeared in a series of public television specials about the United States Constitution with Fred W. Friendly. Stewart's personal and official papers are archived at the manuscript library of Yale University in New Haven, Connecticut. However, all files concerning Stewart's service are closed to researchers until all the justices with whom Stewart served have left the court. Thus, the files are expected to be made public following the departure from the court of Justice John Paul Stevens, who is the last sitting justice who served with Stewart. Stevens considers Stewart his judicial hero. [2] Edit References 1. ^ Woodward, Bob; Scott Armstrong (September 1979). The Brethren. Simon & Schuster. ISBN 0-671-24110-9. 2. ^ Justice John Paul Stevens - Supreme Court - Law - Washington - New York Times

The petitioner stands convicted for violating an ordinance of Birmingham, Alabama, making it an offense to participate in any "parade or procession or other public demonstration" without first obtaining a permit from the City Commission. The question before us is whether that conviction can be squared with the Constitution of the United States.

On the afternoon of April 12, Good Friday, 1963, 52 people, all Negroes, were led out of a Birmingham church by three Negro ministers, one of whom was the petitioner, Fred L. Shuttlesworth. They walked in orderly fashion, two abreast for the most part, for four [394 U.S. 147, 149] blocks. The purpose of their march was to protest the alleged denial of civil rights to Negroes in the city of Birmingham. The marchers stayed on the sidewalks except at street intersections, and they did not interfere with other pedestrians. No automobiles were obstructed, nor were traffic signals disobeyed. The petitioner was with the group for at least part of this time, walking alongside the others, and once moving from the front to the rear. As the marchers moved along, a crowd of spectators fell in behind them at a distance. The spectators at some points spilled out into the street, but the street was not blocked and vehicles were not obstructed.

At the end of four blocks the marchers were stopped by the Birmingham police, and were arrested for violating 1159 of the General Code of Birmingham. That ordinance reads as follows:

"It shall be unlawful to organize or hold, or to assist in organizing or holding, or to take part or participate in, any parade or procession or other public demonstration on the streets or other public ways of the city, unless a permit therefor has been secured from the commission.

"To secure such permit, written application shall be made to the commission, setting forth the probable number of persons, vehicles and animals which will be engaged in such parade, procession or other public demonstration, the purpose for which it is to be held or had, and the streets or other public ways over, along or in which it is desired to have or hold such parade, procession or other public demonstration. The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be [394 U.S. 147, 150] refused. It shall be unlawful to use for such purposes any other streets or public ways than those set out in said permit.

"The two preceding paragraphs, however, shall not apply to funeral processions."

The petitioner was convicted for violation of 1159 and was sentenced to 90 days' imprisonment at hard labor and an additional 48 days at hard labor in default of payment of a $75 fine and $24 costs. The Alabama Court of Appeals reversed the judgment of conviction, holding the evidence was insufficient "to show a procession which would require, under the terms of 1159, the getting of a permit," that the ordinance had been applied in a discriminatory fashion, and that it was unconstitutional in imposing an "invidious prior restraint" without ascertainable standards for the granting of permits. 43 Ala. App. 68, ___, ___, 180 So.2d 114, 139, 127. The Supreme Court of Alabama, however, giving the language of 1159 an extraordinarily narrow construction, reversed the judgment of the Court of Appeals and reinstated the conviction. 281 Ala. 542, 206 So.2d 348. We granted certiorari to consider the petitioner's constitutional claims. 390 U.S. 1023 .

There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the City Commission virtually unbridled and absolute power to prohibit any "parade," "procession," 1 or "demonstration" on the city's streets or public ways. For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of "public welfare, peace, safety, health, decency, good order, morals or convenience." This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to [394 U.S. 147, 151] the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional. 2 "It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official - as by requiring a permit or license which may be granted or withheld in the discretion of such official - is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." Staub v. Baxley, 355 U.S. 313, 322 . And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. 3 "The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands." Jones v. Opelika, 316 U.S. 584, 602 (Stone, C. J., dissenting), adopted per curiam on rehearing, 319 U.S. 103, 104 . [394 U.S. 147, 152]

It is argued, however, that what was involved here was not "pure speech," but the use of public streets and sidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of traffic regulation and public safety. That, of course, is true. We have emphasized before this that "the First and Fourteenth Amendments [do not] afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech." Cox v. Louisiana, 379 U.S. 536, 555 . "Governmental authorities have the duty and responsibility to keep their streets open and available for movement." Id., at 554-555.

But our decisions have also made clear that picketing and parading may nonetheless constitute methods of expression, entitled to First Amendment protection. Cox v. Louisiana, supra; Edwards v. South Carolina, 372 U.S. 229 ; Thornhill v. Alabama, 310 U.S. 88 . "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." Hague v. C. I. O., 307 U.S. 496, 515 -516 (opinion of Mr. Justice Roberts, joined by MR. JUSTICE BLACK). [394 U.S. 147, 153]

Accordingly, "[a]lthough this Court has recognized that a statute may be enacted which prevents serious interference with normal usage of streets and parks, . . . we have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places." Kunz v. New York, 340 U.S. 290, 293 -294. See also Saia v. New York, 334 U.S. 558 ; Niemotko v. Maryland, 340 U.S. 268 . Even when the use of its public streets and sidewalks is involved, therefore, a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade, according to their own opinions regarding the potential effect of the activity in question on the "welfare," "decency," or "morals" of the community.

Understandably, under these settled principles, the Alabama Court of Appeals was unable to reach any conclusion other than that 1159 was unconstitutional. The terms of the Birmingham ordinance clearly gave the City Commission extensive authority to issue or refuse to issue parade permits on the basis of broad criteria entirely unrelated to legitimate municipal regulation of the public streets and sidewalks.

It is said, however, that no matter how constitutionally invalid the Birmingham ordinance may have been as it was written, nonetheless the authoritative construction that has now been given it by the Supreme Court of Alabama has so modified and narrowed its terms as to render it constitutionally acceptable. It is true that in affirming the petitioner's conviction in the present case, the Supreme Court of Alabama performed a remarkable job of plastic surgery upon the face of the ordinance. The court stated that when 1159 provided that the City Commission could withhold a permit whenever "in its [394 U.S. 147, 154] judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require," the ordinance really meant something quite different:

"[W]e do not construe this [language] as vesting in the Commission an unfettered discretion in granting or denying permits, but, in view of the purpose of the ordinance, one to be exercised in connection with the safety, comfort and convenience in the use of the streets by the general public. . . . The members of the Commission may not act as censors of what is to be said or displayed in any parade. . . .

". . . [We] do not construe 1159 as conferring upon the `commission' of the City of Birmingham the right to refuse an application for a permit to carry on a parade, procession or other public demonstration solely on the ground that such activities might tend to provoke disorderly conduct. . . .

"We also hold that under 1159 the Commission is without authority to act in an arbitrary manner or with unfettered discretion in regard to the issuance of permits. Its discretion must be exercised with uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination. A systematic, consistent and just order of treatment with reference to the convenience of public use of the streets and sidewalks must be followed. Applications for permits to parade must be granted if, after an investigation it is found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed." 281 Ala., at 545-546, 206 So.2d, at 350-352.

In transforming 1159 into an ordinance authorizing no more than the objective and even-handed regulation [394 U.S. 147, 155] of traffic on Birmingham's streets and public ways, the Supreme Court of Alabama made a commendable effort to give the legislation "a field of operation within constitutional limits." 281 Ala., at 544, 206 So.2d, at 350. We may assume that this exercise was successful, and that the ordinance as now authoritatively construed would pass constitutional muster. 4 It does not follow, however, that the severely narrowing construction put upon the ordinance by the Alabama Supreme Court in November of 1967 necessarily serves to restore constitutional validity to a conviction that occurred in 1963 under the ordinance as it was written. The inquiry in every case must be that stated by Chief Justice Hughes in Cox v. New Hampshire, 312 U.S. 569 - whether control of the use of the streets for a parade or procession was, in fact, "exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places." Id., at 574.

In Cox the Court found that control of the streets had not been exerted unconstitutionally. There the Court was dealing with a parade-permit statute that was silent as to the criteria governing the granting of permits. In affirming the appellants' convictions for parading without a permit, the New Hampshire Supreme Court had construed the statute to require the issuance of a permit to anybody who applied, subject only to the power of the licensing authority to specify the "time, place and manner" of the parade in order to accommodate competing [394 U.S. 147, 156] demands for public use of the streets. This Court accepted the state court's characterization of the statute, and its assurance that the appellants "`had a right, under the Act, to a license to march when, where and as they did, if after a required investigation it was found that the convenience of the public in the use of the streets would not thereby be unduly disturbed, upon such conditions or changes in time, place and manner as would avoid disturbance.'" 312 U.S., at 576 . In affirming the New Hampshire judgment, however, this Court was careful to emphasize:

"There is no evidence that the statute has been administered otherwise than in the fair and non-discriminatory manner which the state court has construed it to require." Id., at 577.

In the present case we are confronted with quite a different situation. In April of 1963 the ordinance that was on the books in Birmingham contained language that affirmatively conferred upon the members of the Commission absolute power to refuse a parade permit whenever they thought "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." It would have taken extraordinary clairvoyance for anyone to perceive that this language meant what the Supreme Court of Alabama was destined to find that it meant more than four years later; and, with First Amendment rights hanging in the balance, we would hesitate long before assuming that either the members of the Commission or the petitioner possessed any such clairvoyance at the time of the Good Friday march.

But we need not deal in assumptions. For, as the respondent in this case has reminded us, in assessing the constitutional claims of the petitioner, "[i]t is less than realistic to ignore the surrounding relevant circumstances. [394 U.S. 147, 157] These include not only facts developed in the Record in this case, but also those shown in the opinions in the related case of Walker v. City of Birmingham (1967), 388 U.S. 307 . . . ." 5 The petitioner here was one of the petitioners in the Walker case, in which, just two Terms ago, we had before us a record showing many of the "surrounding relevant circumstances" of the Good Friday march. As the respondent suggests, we may properly take judicial notice of the record in that litigation between the same parties who are now before us. 6

Uncontradicted testimony was offered in Walker to show that over a week before the Good Friday march petitioner Shuttlesworth sent a representative to apply for a parade permit. She went to the City Hall and asked "to see the person or persons in charge to issue permits, permits for parading, picketing, and demonstrating." She was directed to Commissioner Connor, who denied her request in no uncertain terms. "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." 388 U.S., at 317 , n. 9, 325, 335, 339.

Two days later petitioner Shuttlesworth himself sent a telegram to Commissioner Connor requesting, on behalf of his organization, a permit to picket "against the injustices of segregation and discrimination." His request specified the sidewalks where the picketing would take place, and stated that "the normal rules of picketing" would be obeyed. In reply, the Commissioner sent a wire stating that permits were the responsibility of the entire Commission rather than of a single Commissioner, and closing with the blunt admonition: "I insist that you [394 U.S. 147, 158] and your people do not start any picketing on the streets in Birmingham, Alabama." Id., at 318, n. 10, 325, 335-336, 339-340. 7

These "surrounding relevant circumstances" make it indisputably clear, we think, that in April of 1963 - at least with respect to this petitioner and his organization 8 - the city authorities thought the ordinance meant exactly what it said. The petitioner was clearly given to understand that under no circumstances would he and his group be permitted to demonstrate in Birmingham, not that a demonstration would be approved if a time and place were selected that would minimize traffic problems. There is no indication whatever that the authorities considered themselves obligated - as the Alabama Supreme Court more than four years later said that they were - to issue a permit "if, after an investigation [they] found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed."

This case, therefore, is a far cry from Cox v. New Hampshire, supra, where it could be said that there was [394 U.S. 147, 159] nothing to show "that the statute has been administered otherwise than in the . . . manner which the state court has construed it to require." Here, by contrast, it is evident that the ordinance was administered so as, in the words of Chief Justice Hughes, "to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought . . . immemorially associated with resort to public places." The judgment is

[ Footnote 2 ] See Lovell v. Griffin, 303 U.S. 444 ; Hague v. C. I. O., 307 U.S. 496 ; Schneider v. State, 308 U.S. 147, 163 -165; Cantwell v. Connecticut, 310 U.S. 296 ; Largent v. Texas, 318 U.S. 418 ; Jones v. Opelika, 316 U.S. 584, 600 (Stone, C. J., dissenting), 611 (Murphy, J., dissenting), vacated and previous dissenting opinions adopted per curiam, 319 U.S. 103 ; Marsh v. Alabama, 326 U.S. 501 ; Tucker v. Texas, 326 U.S. 517 ; Saia v. New York, 334 U.S. 558 ; Kunz v. New York, 340 U.S. 290 ; Niemotko v. Maryland, 340 U.S. 268 ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 ; Gelling v. Texas, 343 U.S. 960 ; Superior Films, Inc. v. Department of Education, 346 U.S. 587 ; Staub v. Baxley, 355 U.S. 313 ; Cox v. Louisiana, 379 U.S. 536 ; Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 .

[ Footnote 3 ] Lovell v. Griffin, 303 U.S., at 452 -453; Schneider v. State, 308 U.S., at 159 , 165; Largent v. Texas, 318 U.S., at 419 , 422; Jones v. Opelika, 316 U.S., at 602 (Stone, C. J., dissenting), adopted per curiam on rehearing, 319 U.S., at 104 ; Staub v. Baxley, 355 U.S., at 319 ; Freedman v. Maryland, 380 U.S. 51, 56 -57.

[ Footnote 4 ] The validity of this assumption would depend upon, among other things, the availability of expeditious judicial review of the Commission's refusal of a permit. Cf. Poulos v. New Hampshire, 345 U.S. 395, 420 (Frankfurter, J., concurring in result); Freedman v. Maryland, 380 U.S. 51 . See also the concurring opinion of MR. JUSTICE HARLAN, post, p. 159.

[ Footnote 6 ] National Fire Ins. Co. v. Thompson, 281 U.S. 331, 336 , and cases cited therein.

[ Footnote 7 ] The legal and constitutional issues involved in the Walker case were quite different from those involved here. The Court recently summarized the Walker decision as follows:

"In that case, the Court held that demonstrators who had proceeded with their protest march in face of the prohibition of an injunctive order against such a march, could not defend contempt charges by asserting the unconstitutionality of the injunction. The proper procedure, it was held, was to seek judicial review of the injunction and not to disobey it, no matter how well-founded their doubts might be as to its validity." Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 179 .

[ Footnote 8 ] In Walker the petitioner made an offer of proof that parade permits had been issued to other groups by the city clerk at the request of the traffic bureau of the police department. 388 U.S., at 325 -326, 336, 340.

John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American jurist. He served as an Associate Justice of the Supreme Court from 1955 to 1971. He was the grandson of his namesake, John Marshall Harlan, another associate justice who served from 1877 to 1911. Harlan is often characterized as a member of the conservative wing of the Warren Court. He advocated a limited role for the judiciary, remarking that the Supreme Court should not be considered "a general haven for reform movements." In general, Harlan adhered more closely to precedent, and was more reluctant to overturn legislation, than many of his colleagues on the Court. He strongly disagreed with the doctrine of incorporation, which held that the guarantees of the federal Bill of Rights were applicable at the state level. At the same time, he advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause, arguing that it protected a wide range of rights not expressly mentioned in the Constitution. Harlan is sometimes called the "great dissenter" of the Warren Court, and is often regarded as one of the most influential Supreme Court justices in the twentieth century. Contents * 1 Early life * 2 Supreme Court career * 3 Jurisprudence 3.1 Due Process Clause o 3.2 Incorporation o 3.3 First Amendment o 3.4 Criminal procedure o 3.5 Civil rights o 3.6 Voting rights * 4 Retirement and death * 5 Quotes about Harlan * 6 References * 7 Additional reading * 8 External links

Early life John Marshall Harlan was born on May 20, 1899 in Chicago, Illinois. He was the son of John Maynard Harlan, a Chicago lawyer and politician, and Elizabeth Flagg. Harlan's family had, historically, been a politically active one. His forebear, George Harlan, served as Governor of Delaware during the seventeenth century; his great-grandfather, James Harlan, was a congressman during the 1830s; and his grandfather, also John Marshall Harlan, was a Justice of the United States Supreme Court.[citation needed] In his younger years, Harlan attended The Latin School of Chicago. Harlan later attended two boarding high schools in Canada, Upper Canada College in Toronto, and Appleby College also near Toronto. Upon graduation from Appleby, Harlan returned to the U.S. and enrolled at Princeton University. There, he was a member of the Ivy Club, served as an editor of The Daily Princetonian, and was class president during his junior and senior years. After graduating from the university in 1920, he received a Rhodes Scholarship, which he used to attend Balliol College, Oxford.[1] He studied jurisprudence at Oxford for three years, returning from England in 1923. Upon his return to the United States, he began work with the law firm of Root, Clark, Buckner & Howland (now known as Dewey Ballantine), one of the leading law firms in the country, while studying law at New York Law School. He received his law degree in 1924 and earned admission to the bar in 1925. In 1928, he married Ethel Andrews, with whom he had one daughter, Eva Dillingham.[2] Between 1925 and 1927, Harlan served as Assistant U.S. Attorney for the Southern District of New York, heading the district's Prohibition unit. In 1928, he was appointed Special Assistant Attorney General of New York, in which capacity he investigated a scandal involving sewer construction in Queens. He prosecuted Maurice E. Connolly, the Queens borough president, for his involvement in the affair. In 1930, Harlan returned to his old law firm, reaching the rank of partner one year later. At the firm, he long served as chief assistant for Emory Buckner. In 1937, Harlan was one of five founders of the controversial Pioneer Fund, a group associated with eugenics advocacy. In private practice, he handled a variety of notable cases. In 1940, for example, he represented the New York Board of Higher Education in its unsuccessful effort to retain Bertrand Russell on the faculty of the City College of New York; Russell was declared "morally unfit" to teach.[1] During World War II, Harlan volunteered for military duty, serving as a colonel in the United States Army Air Force from 1943 to 1945. He was the chief of the Operational Analysis Section of the Eighth Air Force in England. He won the Legion of Merit from the United States, and the croix de guerre from both France and Belgium. In 1946, soon after the end of the war, Harlan returned to private law practice. In 1951, however, he returned to public service, serving as Chief Counsel to the New York State Crime Commission.[1] [edit] Supreme Court career On January 13, 1954, President Dwight D. Eisenhower nominated Harlan to the United States Court of Appeals for the Second Circuit, to fill a vacancy created by the death of Judge Augustus Noble Hand. He was confirmed by the Senate on February 9, and took office on February 10.[3] Harlan knew this court well, as he had often appeared before it. However, his stay on the court only lasted for about one year. On January 10, 1955, President Eisenhower nominated Harlan to the Supreme Court following the death of Justice Robert H. Jackson. Harlan was nominated to the Supreme Court in 1955. Harlan was nominated to the Supreme Court in 1955. Harlan's nomination came shortly after the Supreme Court handed down its landmark decision in Brown v. Board of Education (1954), declaring segregation in public schools unconstitutional. Several Southern senators who wanted to delay the implementation of this ruling attempted to block Harlan's confirmation.[citation needed] Unlike almost all previous Supreme Court nominees, Harlan appeared before the Senate Judiciary Committee to answer questions relating to his judicial views. This appearance set a new precedent; since Harlan, every Supreme Court nominee has been questioned by the Judiciary Committee.[4] The Senate finally confirmed him on March 16, 1955 by a vote of 71-11. Of the eleven senators who voted against his appointment, nine were from the South. He was replaced on the Second Circuit by Joseph Edward Lumbard. On the Supreme Court, Harlan often voted alongside Justice Felix Frankfurter. Moreover, he was an ally and close friend of Justice Potter Stewart, who joined the Court in 1958.[citation needed] He was an ideological adversary—but close personal friend—of Justice Hugo Black,[citation needed] with whom he disagreed on a variety of issues, including the applicability of the Bill of Rights to the states, the Due Process Clause, and the Equal Protection Clause. [edit] Jurisprudence Harlan's jurisprudence is often characterized as conservative. He held precedent to be of great importance, adhering to the principle of stare decisis more closely than many of his Supreme Court colleagues. Unlike his contemporary Hugo Black, he eschewed strict textualism. While he believed that the original intention of the Framers should play an important part in constitutional adjudication, he also held that broad phrases like "liberty" in the Due Process Clause could be given an evolving interpretation. Harlan believed that most problems should be solved by the political process, and that the judiciary should play only a limited role. In his dissent to Reynolds v. Sims (1964), he wrote: These decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in short, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare nor should this court, ordained as a judicial body, be thought of as a general haven of reform movements.[5] [edit] Due Process Clause Justice Harlan advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause. He subscribed to the doctrine that the clause not only provided procedural guarantees, but also protected a wide range of fundamental rights, including those that were not specifically mentioned in the text of the Constitution. (See substantive due process.) However, as Justice Byron White noted in his dissenting opinion in Moore v. East Cleveland, "no one was more sensitive than Mr. Justice Harlan to any suggestion that his approach to the Due Process Clause would lead to judges 'roaming at large in the constitutional field.'" Under Harlan's approach, judges would be limited in the Due Process area by "respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms." (Griswold v. Connecticut (Harlan, J., concurring in the judgment), 81 U.S. 479, 501-502) Harlan set forth his interpretation in an oft-cited dissenting opinion to Poe v. Ullman (1961), which involved a challenge to a Connecticut law banning the use of contraceptives. The Supreme Court dismissed the case on technical grounds, holding that the case was not ripe for adjudication. Justice Harlan dissented from the dismissal, suggesting that the Court should have considered the merits of the case. Thereafter, he indicated his support for a broad view of the due process clause's reference to "liberty." He wrote, "This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."[6] He suggested that the due process clause encompassed a right to privacy, and concluded that a prohibition on contraception violated this right. The same law was challenged again in Griswold v. Connecticut (1965). This time, the Supreme Court agreed to consider the case, and concluded that the law violated the Constitution. However, the decision was based not on the due process clause, but on the argument that a right to privacy was found in the "penumbras" of other provisions of the Bill of Rights. Justice Harlan concurred in the result, but criticized the Court for relying on the Bill of Rights in reaching its decision. "The Due Process Clause of the Fourteenth Amendment stands," he wrote, "on its own bottom."[7] The Supreme Court would later adopt Harlan's approach, relying on the due process clause rather than the penumbras of the Bill of Rights in right to privacy cases such as Roe v. Wade (1972) and Lawrence v. Texas (2003). Harlan's interpretation of the Due Process Clause attracted the criticism of Justice Black. Black rejected the idea that the Due Process Clause included a "substantive" component; he considered this interpretation unjustifiably broad and historically unsound. The Supreme Court has sided with Harlan, and has continued to apply the doctrine of substantive due process in a wide variety of cases. [edit] Incorporation Justice Harlan was strongly opposed to the theory that the Fourteenth Amendment "incorporated" the Bill of Rights—that is, made the provisions of the Bill of Rights applicable to the states. When it was originally ratified, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in Barron v. Baltimore (1833). Some jurists argued that the Fourteenth Amendment made the entirety of the Bill of Rights binding upon the states as well. Harlan, however, rejected this doctrine, which he called "historically unfounded" in his Griswold concurrence. Instead, Justice Harlan believed that the Fourteenth Amendment's due process clause only protected "fundamental" rights. (See Due Process Clause above.) Thus, if a guarantee of the Bill of Rights was "fundamental" or "implicit in the concept of ordered liberty," Harlan agreed that it applied to the states as well as the federal government. Thus, for example, Harlan believed that the First Amendment's free speech clause applied to the states, but that the Fifth Amendment's self incrimination clause did not. Harlan's approach was largely similar to that of Justices Benjamin Cardozo and Felix Frankfurter. It drew criticism from Justice Black, a proponent of the total incorporation theory. Black claimed that the process of identifying some rights as more "fundamental" than others was largely arbitrary, and depended on each Justice's personal opinions. The Supreme Court has sided with Harlan, holding that only "fundamental" Bill of Rights guarantees were applicable against the states. However, under Chief Justice Earl Warren during the 1960s, an increasing number of rights were deemed sufficiently fundamental for incorporation. (Harlan regularly dissented from these rulings.) Hence, almost all of provisions of the Bill of Rights have been extended to the states; the only exceptions are the Second Amendment, the Third Amendment, the grand jury clause of the Fifth Amendment, the Seventh Amendment, the excessive bail provision of the Eighth Amendment, the Ninth Amendment, and the Tenth Amendment. Thus, although the Supreme Court has agreed with Harlan's general reasoning, the end result of its jurisprudence is very different from what Harlan advocated. [edit] First Amendment Justice Harlan concurred in many of the Warren Court's landmark decisions relating to the separation of church and state. For instance, he voted in favor of the Court's ruling that the states could not use religious tests as qualifications for public office in Torcaso v. Watkins, 367 U.S. 488 (1961). He joined Engel v. Vitale (1962), which declared that it was unconstitutional for states to require the recitation of official prayers in public schools. In Epperson v. Arkansas (1968), similarly, he voted to strike down an Arkansas law banning the teaching of evolution. In many cases, Harlan took a fairly broad view of First Amendment rights such as the freedom of speech and of the press, but felt that the guarantees of the First Amendment applied more stringently to the federal government than the states because of the federalism principle he believed implicit in the Constitution. He concurred in New York Times Co. v. Sullivan (1964), which required public officials suing newspapers for libel to prove that the publisher had acted with "actual malice." This stringent standard made it much more difficult for public officials to win libel cases. However, Harlan did not go as far as Justices Hugo Black and William O. Douglas, who suggested that all libel laws were unconstitutional. In Street v. New York (1969), Harlan delivered the opinion of the court, ruling that the government could not punish an individual for insulting the American flag. Harlan also penned the majority opinion in Cohen v. California (1971), holding that wearing a jacket emblazoned with the words "Fuck the Draft" was speech protected by the First Amendment. In the Cohen opinion, Harlan famously wrote "one man's vulgarity is another's lyric," a quote that was later denounced by Robert Bork as "moral relativism"[8] Moreover, Justice Harlan believed that federal laws censoring "obscene" publications violated the free speech clause. Thus, he dissented from Roth v. United States (1957), in which the Supreme Court upheld the validity of a federal obscenity law. At the same time, Harlan did not believe that the Constitution prevented the states from censoring obscenity. He explained in his Roth dissent: The danger is perhaps not great if the people of one State, through their legislature, decide that Lady Chatterley's Lover goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the State next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. [...] The fact that the people of one State cannot read some of the works of D. H. Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment.[9] Justice Harlan did not believe that individuals were entitled to exercise their First Amendment rights wherever they pleased. He joined in Adderley v. Florida (1966), which controversially upheld a trespassing conviction for protesters who demonstrated on government property. He dissented from Brown v. Louisiana (1966), in which the Court held that protesters were entitled to engage in a sit-in at a public library. Likewise, he disagreed with Tinker v. Des Moines (1969), in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in public schools.

Criminal procedure: During the 1960s, the Warren Court made a series of rulings expanding the rights of criminal defendants. In some instances, Justice Harlan concurred in the result; Gideon v. Wainwright (1963) is one notable example. In many other cases, however, Harlan found himself in dissent. He was usually joined by the other members of the Court's moderate wing, Justices Potter Stewart, Tom Clark, and Byron White. Most notably, Harlan dissented from Supreme Court rulings restricting interrogation techniques used by law enforcement officers. For example, he dissented from the Court's holding in Escobedo v. Illinois (1964) that the police could not refuse to honor a suspect's request to consult with his lawyer during an interrogation. Harlan called the rule "ill-conceived" and suggested that it "unjustifiably fetters perfectly legitimate methods of criminal law enforcement." He disagreed with Miranda v. Arizona (1965), which required law enforcement officials to warn a suspect of his rights before questioning him (see Miranda warning). He closed his dissenting opinion with a quotation from his predecessor, Justice Robert Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."[10] In Gideon v. Wainwright (1963), Justice Harlan agreed that the Constitution required states to provide attorneys for defendants who could not afford their own counsel. However, he believed that this requirement applied only at trial, and not on appeal; thus, he dissented from Douglas v. California (1963). Harlan was the author of Leary v. United States, a case that declared Marijuana Tax Act unconstitutional based on the Fifth Amendment protection against self-incrimination. Justice Harlan's concurrence in Katz v. United States (389 U.S. 347 (1967)) is often cited for setting forth the test for determining whether government conduct constituted a search. According to Justice Harlan, there is a two-part requirement for a search: 1. That the individual have a subjective expectation of privacy; and 2. That the individual's expectation of privacy is "one that society is prepared to recognize as 'reasonable.'" See Katz v. United States

Civil rights: The Supreme Court decided several important civil rights cases during the first years of Harlan's career. In these cases, Harlan regularly sided with the civil rights movement. He was a monumental judge during the civil rights movement, and if it hadn't been for his decisions of justice and equality, many rights given to minorities today would most likely be hard to imagine. In NAACP v. Alabama (1958), Justice Harlan delivered the opinion of the court, invalidating an Alabama law that required the NAACP to disclose membership lists. He joined in Cooper v. Aaron (1958), compelling defiant officials in Arkansas to desegregate public schools. He joined the opinion in Gomillon v. Lightfoot (1960), which declared that states could not redraw political boundaries in order to reduce the voting power of African-Americans. Moreover, he concurred in Loving v. Virginia (1967), which struck down state laws that banned interracial marriage. Voting rights Justice Harlan rejected the theory that the Constitution enshrined the so-called "one man, one vote" principle, or the principle that legislative districts must be roughly equal in population. In this regard, he shared the views of Justice Felix Frankfurter, who admonished the courts to stay out of the "political thicket" of reapportionment. The Supreme Court, however, disagreed with Harlan in a series of rulings during the 1960s. The first case in this line of rulings was Baker v. Carr (1962). The Court ruled that malapportionment issues presented justiciable questions, and that the courts were entitled to review the validity of district boundaries. Harlan, however, dissented, on the grounds that the plaintiffs failed to demonstrate that malapportionment violated their individual rights. Then, in Wesberry v. Sanders (1964), the Supreme Court, relying on the Constitution's requirement that the House of Representatives be elected "by the People of the several States," ruled that congressional districts in any particular state must be approximately equal in population. Harlan vigorously dissented, writing, "I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today's decision."[11] He proceeded to argue that the Court's decision was inconsistent with both the history and text of the Constitution; moreover, he claimed that only Congress, not the judiciary, had the power to require congressional districts with equal populations. Harlan was the sole dissenter in Reynolds v. Sims (1964), in which the Court relied on the Equal Protection Clause to extend the one man, one vote principle to state legislative districts. He analyzed the language and history of the Fourteenth Amendment, and concluded that the Equal Protection Clause was never intended to encompass voting rights. Because the Fifteenth Amendment would have been superfluous if the Fourteenth Amendment (the basis of the reapportionment decisions) had conferred a general right to vote, he claimed that the Constitution did not require states to adhere to the one man, one vote principle, and that the Court was merely imposing its own political theories on the nation. He suggested, in addition, that the problem of malapportionment was one that should be solved by the political process, and not by litigation. He wrote: This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court, in reality, substitutes its view of what should be so for the amending process.[5] For similar reasons, Harlan dissented from Carrington v. Rash (1965), in which the Court held that voter qualifications were subject to scrutiny under the equal protection clause. He claimed in his dissent, "the Court totally ignores, as it did in last Term's reapportionment cases [...] all the history of the Fourteenth Amendment and the course of judicial decisions which together plainly show that the Equal Protection Clause was not intended to touch state electoral matters."[12] Similarly, Justice Harlan disagreed with the Court's ruling in Harper v. Virginia Board of Elections (1966) invalidating the use of the poll tax as a qualification to vote. Retirement and death John M. Harlan's health began to deteriorate towards the end of his career. His eyesight began to fail during the late 1960s.[13] Gravely ill, he retired from the Supreme Court on September 23, 1971. Harlan died from spinal cancer three months later, on December 29. He was buried at the Emmanuel Church Cemetery in Weston, Connecticut. President Richard Nixon considered nominating Mildred Lillie, a California appeals court judge, to fill the vacant seat; Lillie would have been the first female nominee to the Supreme Court. However, Nixon decided against Lillie's nomination after the American Bar Association found Lillie unqualified. Thereafter, Nixon nominated William Rehnquist (the future Chief Justice), who was confirmed by the Senate. Harlan's extensive professional and Supreme Court papers were donated to Princeton University, where they are housed at the Seely G. Mudd Manuscript Library and open to research.[14] ] Quotes about Harlan * "As recently as 1969, Justice John Marshall Harlan, the Court's most distinguished conservative member after Felix Frankfurter's retirement, had noted that the Supreme Court had consistently "rejected all manner of prior restraint on publication." Floyd Abrams, in reference to freedom of the press.[15]

The Alabama Supreme Court's opinion makes it clear that if petitioner Shuttlesworth had carried his efforts to obtain a parade permit to the highest state court, he could have required the city authorities to grant permission for his march, so long as his proposals were consistent with Birmingham's interest in traffic control. Thus, the difficult question this case presents is whether the Fourteenth Amendment ever bars a State from punishing a citizen for marching without a permit which could have been procured if all available remedies had been pursued. The Court answers that a citizen is entitled to rely on the statutory construction adopted by the state officials who are on the front line, administering the permit scheme. If these officials construe a vague statute unconstitutionally, the citizen may take them at their word, and act on the assumption that the statute is void. The Court's holding seems to me to carry seeds of mischief that may impair the conceded ability of the authorities to regulate the use of public thoroughfares in the interests of [394 U.S. 147, 160] all. The right to ignore a permit requirement should, in my view, be made to turn on something more substantial than a minor official's view of his authority under the governing statute. Simply because an inferior state official indicates his view as to a statute's scope, it does not follow that the State's judiciary will come to the same conclusion. Situations do exist, however, in which there can be no effective review of the decision of an inferior state official. In the present case, for example, the decision of Commissioner Connor had the practical effect of the decision of a court of last resort. One week before the Good Friday march, Shuttlesworth learned from Connor that he, as Commissioner of Public Safety, would not issue parade permits, and that the marchers would have to apply to the entire City Commission. 1 But Birmingham's ordinances did not require a prompt decision by [394 U.S. 147, 161] the City Commission. 2 Nor did the State of Alabama provide for a speedy court review of the denial of a parade permit. 3

Given the absence of speedy procedures, the Reverend Shuttlesworth and his associates were faced with a serious dilemma when they received their notice from Mr. Connor. If they attempted to exhaust the administrative and judicial remedies provided by Alabama law, it was almost certain that no effective relief could be obtained by Good Friday. Since the right to engage in peaceful and orderly political demonstrations is, under appropriate conditions, a fundamental aspect of the "liberty" protected by the Fourteenth Amendment, see Stromberg v. California, 283 U.S. 359, 368 -370 (1931); Hague v. C. I. O., 307 U.S. 496, 515 -516 (1939) (opinion of Roberts, J.); Garner v. Louisiana, 368 U.S. 157, 201 -203 (1961) (opinion of HARLAN, J.), the petitioner was not obliged to invoke procedures which could not give him effective relief. With fundamental rights at stake, he was entitled to adopt the more probable meaning of the ordinance and act on his belief that the city's permit regulations were unconstitutional. [394 U.S. 147, 162]

It may be suggested, however, that Shuttlesworth's dilemma was of his own making. He could have requested a permit months in advance of Good Friday, thereby allowing Alabama's administrative and judicial machinery the necessary time to operate fully before the date set for the march. But such a suggestion ignores the principle established in Freedman v. Maryland, 380 U.S. 51, 58 -61 (1965), which prohibits the States from requiring persons to invoke unduly cumbersome and time-consuming procedures before they may exercise their constitutional right of expression. Freedman holds that if the State is to protect the public from obscene movies, it must afford exhibitors a speedy administrative or judicial right of review, lest "the victorious exhibitor might find the most propitious opportunity for exhibition [passed]." Id., at 61. The Freedman principle is applicable here. 4 The right to assemble peaceably to voice political protest is at least as basic as the right to exhibit a motion picture which may have some aesthetic value. Moreover, slow-moving procedures have a much more severe impact in the instant case [394 U.S. 147, 163] than they had in Freedman. Though a movie exhibitor might suffer some financial loss if he were obliged to wait for a year or two while the administrative and judicial mills ground out a result, it is nevertheless quite likely that the public would ultimately see the film. In contrast, timing is of the essence in politics. It is almost impossible to predict the political future; and when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all. To require Shuttlesworth to submit his parade permit application months in advance would place a severe burden upon the exercise of his constitutionally protected rights. Cf. Williams v. Rhodes, 393 U.S. 23, 33 (1968).

I do not mean to suggest that a State or city may not reasonably require that parade permit applications be submitted early enough to allow the authorities and the judiciary to determine whether the parade proposal is consistent with the important interests respecting the use of the streets which local authority may legitimately protect. But such applications must be handled on an expedited basis so that rights of political expression will not be lost in a maze of cumbersome and slow-moving procedures.

Neither the city of Birmingham nor the State of Alabama has established such expedited procedures. See nn. 2 and 3, supra. Indeed, the city's parade ordinance does not establish any procedure at all to govern the consideration of applications. Section 1159 of the City Code does not state when an application must be submitted if it is to be considered timely. The ordinance does not state how an application is to be submitted to the "City Commission." 5 Nor have [394 U.S. 147, 164] regulations been published which would answer these questions. 6

In the absence of any guidelines, the most that can fairly be asked of petitioner is that he make a good-faith effort to obtain a permit from the city authorities. Shuttlesworth so acted when he approached the city official most likely to have the authority to deal with permit applications in an expedited manner - Commissioner Connor was the member of the City Commission in charge of public safety. It was Connor, not Shuttlesworth, who broke off all discussions relating to the issuance of permits. After the Commissioner declared that he lacked the power to act, it was reasonable to believe that no public authority would act in time. Since neither the city nor the State provided sufficiently expedited procedures for the consideration of parade permits, petitioner Shuttlesworth cannot be punished for the exercise of his constitutionally protected right of political expression. 7

On this basis I concur in the reversal of the judgment of the Alabama Supreme Court.

[ Footnote 1 ] I agree with my Brother STEWART that we may properly take judicial notice of the evidence of record in Walker v. Birmingham, 388 U.S. 307 (1967). See 9 J. Wigmore, Evidence 2579, at 570 (3d ed. 1940); Butler v. Eaton, 141 U.S. 240 (1891); Craemer v. Washington, 168 U.S. 124 (1897). That record shows that in response to a request for permission to march on April 5 and 6, Mr. Connor replied by telegram on April 5:

"Under the provisions of the city code of the City of Birmingham, a permit to picket as requested by you cannot be granted by me individually but is the responsibility [sic] of the entire commission. I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.

See Walker v. Birmingham, No. 249, October Term, 1966, Transcript of Record 415. Mr. Connor's telegram was received in evidence at trial. See Transcript, supra, at 350.

I do not, however, find it appropriate to rely upon the slightly earlier episode detailed in my Brother STEWART's opinion, ante, at 157, as the trial judge ruled the uncontradicted supporting testimony inadmissible. See Transcript, supra, at 355.

[ Footnote 2 ] Section 1159 does not require the City Commission to act on an application within any fixed amount of time. Indeed, by the time Connor definitively declared that he could not issue parade permits, it is not at all clear that petitioner could even have made a timely permit application to the City Commission at its only remaining regular session set before the scheduled Good Friday march. See General City Code of Birmingham 21 (1944). While the 1964 City Code makes it clear that petitioner's permit application would have been considered out of time, see 2-10, the 1944 Code, which was applicable in 1963, is not clear on this point.

[ Footnote 3 ] Although Shuttlesworth could have petitioned for a writ of mandamus in the Alabama Circuit Court if the City Commission denied his application, that state court is not obliged to render a decision within any fixed period of time.

[ Footnote 4 ] None of our past decisions have squarely considered whether parade licenses must be handled on an expedited basis. In Cox v. New Hampshire, 312 U.S. 569 (1941), the question was not argued. In Poulos v. New Hampshire, 345 U.S. 395 (1953), Poulos' request for a permit to conduct religious services in a public park was refused by the Portsmouth City Council seven and one-half weeks before the first scheduled event. Since the time remaining was sufficient to obtain relief by way of mandamus, see 345 U.S., at 419 -420 (opinion of Mr. Justice Frankfurter), there was no need to consider whether the State had a constitutional obligation to provide a more rapid procedure. And, of course, those cases which struck down regulatory schemes which purported to issue licenses on the basis of unconstitutional standards did not reach the question presented here. See, e. g., Lovell v. Griffin, 303 U.S. 444 (1938); Schneider v. State, 308 U.S. 147, 163 -165 (1939); Largent v. Texas, 318 U.S. 418 (1943); Staub v. Baxley, 355 U.S. 313 (1958).

[ Footnote 5 ] It would be most remarkable if every parade application involving the march of 52 persons is considered in a plenary manner by the principal governmental body of a city so large as Birmingham. In fact, an offer of proof was made in the Walker proceedings that [394 U.S. 147, 164] the City Commission had never passed on permit applications in the past, but had delegated the task to inferior officials. See Transcript, supra, n. 1, at 290. The proof was not admitted on the ground that it was irrelevant. Ibid.

[ Footnote 6 ] At the trial in Walker v. Birmingham, the City Clerk, who kept records of the parade permits that had been granted, stated that no regulations had been issued to fill in the gaps left by the Ordinance. See Transcript, supra, n. 1, at 286.

[ Footnote 7 ] I do not reach the question whether the principle followed in such cases as Lovell, Schneider, Largent, and Staub, see n. 4, supra, allowing persons to ignore entirely licensing schemes which unconstitutionally impinge on other forms of free expression, should be extended to cover "parade" permit statutes involving, as they do, a particularly important state interest. [394 U.S. 147, 165]