388 U.S. 307 (1967)
On April 2, 1963, several Negro ministers including the petitioners filed with the Birmingham City Commission a request for a permit to picket and hold a parade on April 5 and 6.1 The request was denied. On April 3 the petitioners gave notice of their intention to demonstrate on April 4, 5, and 6, and the City Commission again denied a permit.2 On April 6 and 7 the petitioners and others marched in Birmingham without a permit and were arrested and charged with parading without a permit.3
On April 10, 1963, Birmingham officials filed a bill of complaint in state circuit court against 139 individuals and two organizations.4 The bill and affidavits alleged that during the preceding seven days the respondents had sponsored sit-in demonstrations, kneel-in demonstrations, mass street parades, trespasses on private property, and unlawful picketing, conduct calculated to provoke breaches of the peace and to place an undue burden on the police department.5 The circuit judge granted a temporary injunction enjoining the petitioners from participating in or encouraging mass street parades without a permit as required by the Birmingham ordinance.6 Five of the eight petitioners were served with copies of the writ early the next morning.7
Several hours after service the petitioners held a press conference at which a statement was distributed declaring their intention to disobey the injunction because it was raw tyranny under the guise of maintaining law and order.8 That night a meeting took place at which one petitioner announced that injunction or no injunction they were going to march the next day.9 On April 12, Good Friday, 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; at least three petitioners participated.10 On April 14, Easter Sunday, another crowd of 1,500 to 2,000 gathered; one petitioner was seen organizing members of the crowd in formation, a group of about 50 headed by three other petitioners started down the sidewalk, and violence occurred when members of the crowd threw rocks.11
The next day city officials applied for an order to show cause why the petitioners should not be held in contempt.12 At the hearing the petitioners sought to attack the constitutionality of the injunction on the ground that it was vague and overbroad and restrained free speech, and to attack the Birmingham parade ordinance on similar grounds and on the further ground that it had been administered in an arbitrary and discriminatory manner.13 The circuit judge refused to consider these contentions, noting that there had been neither a motion to dissolve the injunction nor an effort to comply by applying for a permit.14 The court found against the petitioners on the issues of jurisdiction and knowing violation, and imposed upon each a sentence of five days in jail and a $50 fine.15 The Alabama Supreme Court affirmed.16
The Supreme Court of the United States granted certiorari to consider whether the contempt convictions are invalid because of the unconstitutionality of the ordinance or the injunction.17
Whether the petitioners may attack the constitutionality of the Birmingham parade ordinance in this collateral proceeding challenging their contempt convictions?18
Under the rule approved in Howat v. Kansas and consistently followed by federal courts, an injunction issued by a court of competent jurisdiction must be obeyed until it is modified or dissolved through orderly judicial review.19 Even if the injunction rests on an erroneous or unconstitutional statute, the proper forum to challenge the underlying ordinance is the issuing court before disobedience occurs.20
No. The petitioners were served with the temporary injunction on April 11, 1963.21 They held a press conference announcing their intent to disobey it as raw tyranny.22 They marched without a permit on April 12 and April 14 rather than filing a motion to dissolve the injunction or applying for a permit.23 The Alabama circuit court and Supreme Court correctly refused to entertain the constitutional attacks in the contempt proceeding.24 The petitioners had bypassed the required orderly process of seeking modification or dissolution in the court that issued the order.25
The facts establish that the state court possessed jurisdiction over the parties and subject matter.26 The injunction was not transparently invalid on its face.27 The petitioners fully understood the prohibition against mass parading without a permit when they violated it.28 Because they chose to defy the order without first testing its validity through proper channels, they forfeited any right to raise the ordinance's constitutionality collaterally in the contempt case.29
The petitioners may not attack the constitutionality of the Birmingham parade ordinance in this collateral proceeding.30
Related opinions on this issue
Joined by Justices Brennan And Fortas
Chief Justice Warren dissented on the ground that the ordinance is patently unconstitutional on its face.31 It submits First and Fourteenth Amendment rights to the unfettered discretion of local officials with no standards to guide their decision.32 He argued that the petitioners should not be convicted for violating an ex parte injunction that merely parroted the invalid ordinance.33
The Court was evading constitutional protections by elevating a state procedural rule above the First Amendment.34
Joined by Chief Justice Warren, Justices Brennan And Fortas
Justice Douglas dissented on the ground that the ordinance is a prior restraint granting city officials unfettered discretion to suppress speech.35 He maintained that the petitioners were exercising constitutional rights when they marched.36 The contempt convictions cannot stand because the collision between the state decree and the First Amendment is obvious.37
This allows challenge to the injunction without prior resort to the issuing court.38
Whether the petitioners were entitled to disobey the injunction without first seeking to have it dissolved or modified in the state courts?39
A party subject to a temporary injunction issued by a court of competent jurisdiction must normally challenge the injunction through a motion to dissolve or modify in the issuing court rather than by violating it.40 Only after such an effort fails or is frustrated may the party claim a constitutional right to disobey.41
No. After receiving the injunction on April 11, the petitioners made no application to the Alabama circuit court during the two-day interval before the Good Friday march.42 They held a press conference declaring their intent to march anyway. They proceeded with the parades on April 12 and April 14. The record shows no motion to dissolve was filed until after the marches.43 The petitioners offered no explanation for failing to seek judicial relief in the two days available.44
The injunction clearly prohibited mass parading without a permit.45 The petitioners understood that prohibition.46 Alabama procedure provided for expedited appellate review if the trial court had denied relief.47 Because the petitioners deliberately bypassed these procedures, they were not constitutionally free to disobey the injunction and test its validity only after violating it.48
The petitioners were not entitled to disobey the injunction without first seeking to have it dissolved or modified in the state courts.49
Related opinions on this issue
Joined by Chief Justice Warren, Justices Douglas And Fortas
Justice Brennan dissented on the ground that the Court's decision elevates a state rule of judicial administration above the First Amendment right of free expression.50 He argued that the ex parte injunction, obtained without notice or hearing and broader than the already vague ordinance, should not immunize the unconstitutional restraint from challenge.51 Petitioners could properly defy it and contest its validity in the subsequent contempt proceeding.52