Cases on Administrative Prior Restraint
Lovell v. Griffin
303 U.S. 444 (1938)
[Majority: Hughes (C.J.), McReynolds, Brandeis, Butler, Stone, Roberts, Cardozo, and Black.]
Mr. Chief Justice Hughes delivered the [unanimous] opinion of the Court.
Appellant, Alma Lovell, was convicted in the Recorder’s Court of the City of Griffin, Ga., of the violation of a city ordinance and was sentenced to imprisonment for fifty days in default of the payment of a fine of $50. The Superior Court of the county refused sanction of a petition for review; the Court of Appeals affirmed the judgment of the Superior Court; and the Supreme Court of the state denied an application for certiorari. The case comes here on appeal.
The ordinance in question is as follows:
Section 1. That the practice of distributing, either by hand or otherwise, circulars, handbooks, advertising, or literature of any kind, whether said articles are being delivered free, or whether same are being sold, within the limits of the City of Griffin, without first obtaining written permission from the City Manager of the City of Griffin, such practice shall be deemed a nuisance, and punishable as an offense against the City of Griffin.
Section 2. The Chief of Police of the City of Griffin and the police force of the City of Griffin are hereby required and directed to suppress the same and to abate any nuisance as is described in the first section of this ordinance.
The violation, which is not denied, consisted of the distribution without the required permission of a pamphlet and magazine in the nature of religious tracts, setting forth the gospel of the “Kingdom of Jehovah.” Appellant did not apply for a permit, as she regarded herself as sent “by Jehovah to do His work” and that such an application would have been “an act of disobedience to His commandment.”
Upon the trial, with permission of the court, appellant demurred to the charge and moved to dismiss it upon a number of grounds, among which was the contention that the ordinance violated the 14th Amendment of the Constitution of the United States in abridging “the freedom of the press” and prohibiting “the free exercise of petitioner’s religion.” . . .
Freedom of speech and freedom of the press, which are protected by the 1st Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the 14th Amendment from invasion by state action. It is also well settled that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the amendment.
The ordinance in its broad sweep prohibits the distribution of “circulars, handbooks, advertising, or literature of any kind.” It manifestly applies to pamphlets, magazines and periodicals. The evidence against appellant was that she distributed a certain pamphlet and a magazine called the “Golden Age.” Whether in actual administration the ordinance is applied, as apparently it could be, to newspapers does not appear. The City Manager testified that “every one applies to me for a license to distribute literature in this City. None of these people (including defendant) secured a permit from me to distribute literature in the City of Griffin.” The ordinance is not limited to “literature” that is obscene or offensive to public morals or that advocates unlawful conduct. There is no suggestion that the pamphlet and magazine distributed in the instant case were of that character. The ordinance embraces “literature” in the widest sense.
The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation “either by hand or otherwise.” There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the City Manager.
We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his “Appeal for the Liberty of Unlicensed Printing.” And the liberty of the press became initially a right to publish “without a license what formerly could be published only with one.” While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.
The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated.
The ordinance cannot be saved because it relates to distribution and not to publication. “Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.” Ex parte Jackson (1877). The license tax in Grosjean v. American Press Co. (1936), was held invalid because of its direct tendency to restrict circulation.
As the ordinance is void on its face, it was not necessary for appellant to seek a permit under it. She was entitled to contest its validity in answer to the charge against her. . . .
Mr. Justice Cardozo took no part in the consideration and decision of this case.
Cox v. New Hampshire
312 U.S. 569 (1941)
[Majority: Hughes (C.J.), Black, Frankfurter, Byrnes, Douglas, Murphy, Reed, Roberts, and Stone.]
Mr. Chief Justice Hughes delivered the opinion of the Court.
Appellants are five “Jehovah’s Witnesses” who, with sixty-three others of the same persuasion, were convicted in the municipal court of Manchester, New Hampshire, for violation of a state statute prohibiting a “parade or procession” upon a public street without a special license. . . .
By motions and exceptions, appellants raised the questions that the statute was invalid under the 14th Amendment of the Constitution of the United States in that it deprived appellants of their rights of freedom of worship, freedom of speech and press, and freedom of assembly, vested unreasonable and unlimited arbitrary and discriminatory powers in the licensing authority, and was vague and indefinite. These contentions were overruled and the case comes here on appeal.
The statutory prohibition is as follows:
No theatrical or dramatic representation shall be performed or exhibited, and no parade or procession upon any public street or way, and no open-air public meeting upon any ground abutting thereon, shall be permitted, unless a special license therefor shall first be obtained from the selectmen of the town, or from a licensing committee for cities hereinafter provided for.
The provisions for licensing are set forth in the margin.1
The facts, which are conceded by the appellants to be established by the evidence, are these: The sixty-eight defendants and twenty other persons met at a hall in the City of Manchester on the evening of Saturday, July 8, 1939, “for the purpose of engaging in an information march.” The company was divided into four or five groups, each with about fifteen to twenty persons. Each group then proceeded to a different part of the business district of the city and there “would line up in single-file formation and then proceed to march along the sidewalk, ‘single-file’, that is, following one another.” Each of the defendants carried a small staff with a sign reading “Religion is a Snare and a Racket” and on the reverse “Serve God and Christ the King.” Some of the marchers carried placards bearing the statement “Fascism or Freedom. Hear Judge Rutherford and Face the Facts.” The marchers also handed out printed leaflets announcing a meeting to be held at a later time in the hall from which they had started, where a talk on government would be given to the public free of charge. Defendants did not apply for a permit and none was issued. . . .
The sole charge against appellants was that they were “taking part in a parade or procession” on public streets without a permit as the statute required. They were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, or for maintaining or expressing religious beliefs. Their right to do any one of these things apart from engaging in a “parade or procession” upon a public street is not here involved and the question of the validity of a statute addressed to any other sort of conduct than that complained of is not before us.
There appears to be no ground for challenging the ruling of the state court that appellants were in fact engaged in a parade or procession upon the public streets. As the state court observed: “It was a march in formation, and its advertising and informatory purpose did not make it otherwise. . . . It is immaterial that its tactics were few and simple. It is enough that it proceeded in ordered and close file as a collective body of persons on the city streets.”
Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is 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.
In the instant case, we are aided by the opinion of the Supreme Court of the State, which construed the statute and defined the limitations of the authority conferred for the granting of licenses for parades and processions. The court observed that if the clause of the Act requiring a license “for all open-air public meetings upon land contiguous to a highway” was invalid, that invalidity did not nullify the Act in its application to the other situations described. Recognizing the importance of the civil liberties invoked by appellants, the court thought it significant that the statute prescribed “no measures for controlling or suppressing the publication on the highways of facts and opinions, either by speech or by writing”; that communication “by the distribution of literature or by the display of placards and signs” was in no respect regulated by the statute; that the regulation with respect to parades and processions was applicable only “to organized formations of persons using the highways”; and that “the defendants, separately, or collectively in groups not constituting a parade or procession,” were “under no contemplation of the Act.” In this light, the court thought that interference with liberty of speech and writing seemed slight; that the distribution of pamphlets and folders by the groups “traveling in unorganized fashion” would have had as large a circulation, and that “signs carried by members of the groups not in marching formation would have been as conspicuous, as published by them while in parade or procession.”
It was with this view of the limited objective of the statute that the state court considered and defined the duty of the licensing authority and the rights of the appellants to a license for their parade, with regard only to considerations of time, place and manner so as to conserve the public convenience. The obvious advantage of requiring application for a permit was noted as giving the public authorities notice in advance so as to afford opportunity for proper policing. And the court further observed that, in fixing time and place, the license served “to prevent confusion by overlapping parades or processions, to secure convenient use of the streets by other travelers, and to minimize the risk of disorder.” But the court held that the licensing board was not vested with arbitrary power or an unfettered discretion; that 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;” that a “systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways, is the statutory mandate.” The defendants, said the court, “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.”
If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constitutional right. . . .
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.
The decisions upon which appellants rely are not applicable. In Lovell v. Griffin (1938), the ordinance prohibited the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager, thus striking at the very foundation of the freedom of the press by subjecting it to license and censorship. In Hague v. C.I.O. (1939), the ordinance dealt with the exercise of the right of assembly for the purpose of communicating views; it did not make comfort or convenience in the use of streets the standard of official action but enabled the local official absolutely to refuse a permit on his mere opinion that such refusal would prevent “riots, disturbances or disorderly assemblage.” The ordinance thus created, as the record disclosed, an instrument of arbitrary suppression of opinions on public questions. . . .
The judgment of the Supreme Court of New Hampshire is Affirmed.
Shuttlesworth v. Birmingham
394 U.S. 147 (1969)
[Majority: Stewart, Warren (C.J.), Douglas, White, Fortas, and Brennan. Concurring: Black and Harlan.]
Mr. Justice Stewart delivered the opinion of the Court.
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 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 therefore 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 of 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 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. 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. We granted certiorari to consider the petitioner’s constitutional claims.
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,” 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 1st Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional. . . .
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 judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require,” the ordinance really meant something quite different. . . .
In transforming § 1159 into an ordinance authorizing no more than the objective and even-handed regulation 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.” We may assume that this exercise was successful, and that the ordinance as now authoritatively construed would pass constitutional muster.1 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 (1941) — 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.”
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 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.'” 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 nondiscriminatory manner which the state court has construed it to require.
In the present case we are confronted with quite a different situation. In April of 1963 the ordinance that was on the book 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 1st 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. 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). . . .” 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.
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.”
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 and your people do not start any picketing on the streets in Birmingham, Alabama.”2
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 — 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, where it could be said that there was 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 Reversed.
Mr. Justice Black concurs in the result.
Mr. Justice Marshall took no part in the consideration or decision of this case.
Mr. Justice Harlan, concurring. [Omitted.]
- The Collateral Bar Rule
In Shuttlesworth, the Court refers to Walker v. Birmingham (1967), a case arising from the same Birmingham demonstrations. In a controversial 5–4 decision, the Court refused to invalidate the contempt convictions of a group of demonstrators who had marched in violation of an injunction. The Court upheld a state law rule requiring that an enjoined party must raise his objections to the alleged unconstitutionality of a judicial action in the court issuing the injunction and by appealing the injunction. In states that follow this approach, a party is estopped from challenging the constitutionality of an injunction in an appeal of his contempt conviction.
The Court held, in part:
Howat v. Kansas (1922), was decided by this Court almost 50 years ago. That was a case in which people had been punished by a Kansas trial court for refusing to obey an antistrike injunction issued under the state industrial relations act. They had claimed a right to disobey the court’s order upon the ground that the state statute and the injunction based upon it were invalid under the Federal Constitution. The Supreme Court of Kansas had affirmed the judgment, holding that the trial court “had general power to issue injunctions in equity and that, even if its exercise of the power was erroneous, the injunction was not void, and the defendants were precluded from attacking it in this collateral proceeding . . . that, if the injunction was erroneous, jurisdiction was not thereby forfeited, that the error was subject to correction only by the ordinary method of appeal, and disobedience to the order constituted contempt.” . . .
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. The injunction had issued ex parte; if the court had been presented with the petitioners’ contentions, it might well have dissolved or at least modified its order in some respects. If it had not done so, Alabama procedure would have provided for an expedited process of appellate review. It cannot be presumed that the Alabama courts would have ignored the petitioners’ constitutional claims. . . .
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.
Chief Justice Warren’s dissent focused on the same pattern of discriminatory behavior that the Court had relied upon to overturn the convictions in Shuttlesworth, arguing that the judge had been part of the same pattern of abuse. He further contended that ex parte orders had historically been abusively used:
I do not believe that giving this Court’s seal of approval to such a gross misuse of the judicial process is likely to lead to greater respect for the law any more than it is likely to lead to greater protection for 1st Amendment freedoms. The ex parte temporary injunction has a long and odious history in this country, and its susceptibility to misuse is all too apparent from the facts of the case. As a weapon against strikes, it proved so effective in the hands of judges friendly to employers that Congress was forced to take the drastic step of removing from federal district courts the jurisdiction to issue injunctions in labor disputes. The labor injunction fell into disrepute largely because it was abused in precisely the same way that the injunctive power was abused in this case. Judges who were not sympathetic to the union cause commonly issued, without notice or hearing, broad restraining orders addressed to large numbers of persons forbidding them to engage in acts that were either legally permissible or, if illegal, that could better have been left to the regular course of criminal prosecution. The injunctions might later be dissolved, but in the meantime strikes would be crippled because the occasion on which concerted activity might have been effective had passed. Such injunctions, so long discredited as weapons against concerted labor activities, have now been given new life by this Court as weapons against the exercise of 1st Amendment freedoms. Respect for the courts and for judicial process was not increased by the history of the labor injunction.
Nothing in our prior decisions, or in the doctrine that a party subject to a temporary injunction issued by a court of competent jurisdiction with power to decide a dispute properly before it must normally challenge the injunction in the courts rather than by violating it, requires that we affirm the convictions in this case. The majority opinion in this case rests essentially on a single precedent, and that a case the authority of which has clearly been undermined by subsequent decisions. Howat v. Kansas (1922), was decided in the days when the labor injunction was in fashion. Kansas had adopted an Industrial Relations Act, the purpose of which in effect was to provide for compulsory arbitration of labor disputes by a neutral administrative tribunal, the “Court of Industrial Relations.” Pursuant to its jurisdiction to investigate and perhaps improve labor conditions in the coal mining industry, the “Court” subpoenaed union leaders to appear and testify. In addition, the State obtained an injunction to prevent a strike while the matter was before the “Court.” The union leaders disobeyed both the subpoena and the injunction, and sought to challenge the constitutionality of the Industrial Relations Act in the ensuing contempt proceeding. The Kansas Supreme Court held that the constitutionality of the Act could not be challenged in a contempt proceeding, and this Court upheld that determination.
Insofar as Howat v. Kansas might be interpreted to approve an absolute rule that any violation of a void court order is punishable as contempt, it has been greatly modified by later decisions. In In re Green (1962), we reversed a conviction for contempt of a state injunction forbidding labor picketing because the petitioner was not allowed to present evidence that the labor dispute was arguably subject to the jurisdiction of the National Labor Relations Board and hence not subject to state regulation. If an injunction can be challenged on the ground that it deals with a matter arguably subject to the jurisdiction of the National Labor Relations Board, then a fortiori it can be challenged on 1st Amendment grounds.