The opinion of the court was delivered by: MCGOWAN
The complaint before us, filed January 8, 1968, challenges the validity under the First and Fifth Amendments of 40 U.S.C. § 193g, which is one of a series of statutes regulating access to, and conduct upon, the grounds of the United States Capitol.
Section 193g itself reads as follows:
It is forbidden to parade, stand, or move in processions or assemblages in said United States Capitol Grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement, except as hereinafter provided in sections 193j and 193k of this title.
Sections 193j and 193k are set forth in the margin.
This court was accordingly convened; and the case was heard by us on crossmotions for summary judgment. The defendants, in apparent recognition that the statute in its literal terms presents serious, not to say insuperable, constitutional problems, pressed upon us for its salvation a rigorously limiting construction. Believing such action by us to be beyond the allowable bounds of judicial revision of legislative enactments, we hold that the plaintiffs are entitled to (1) a judgment declaring Section 193g, as it stands, to be irretrievably in conflict with the Bill of Rights, and (2) an injunction against its enforcement.
The plaintiffs in this action are Jeannette Rankin Brigade, a coalition of women against the war in Vietnam, and 58 individual women.
The defendants are the Chief of the Capitol Police, and the three members of the Capitol Police Board, who are responsible for the enforcement of Section 193g. On January 2, 1968, the Chief of the Capitol Police informed representatives of the plaintiffs that their march in protest of the Vietnam war planned for January 15 would be in violation of Section 193g and would not be permitted. The plaintiffs had planned to march in a body from Union Station to the East Front Plaza of the Capitol and to wait there in peaceful and orderly assembly while their representatives presented petitions to congressional leaders.
With their effort to seek relief in the District Court stymied by the dismissal of their complaint on January 9, pending the appeal of that dismissal the plaintiffs did not carry out their January 15 march as planned. Instead, they confined their assembly of some 5000 ladies on that date to Union Square, which is not within the Capitol Grounds but at the rear of the Capitol at the bottom of Capitol Hill.
In the presentation of that appeal, the plaintiffs asserted a continuing intention and desire to engage in protests at the Capitol in opposition to the war, but abandoned their request for immediate injunctive relief. They represented to the Court of Appeals that, if the statute were declared unconstitutional, injunctive relief based on such a declaration would thereafter be sought as needed.
With respect to mootness, the Court of Appeals concluded that, as of the time the appeal was decided by it, the case was not moot. It expressly refrained, however from "[foreclosing] the issue of mootness from consideration by the District Court as the situation may then appear." With respect to the second issue, it considered that a declaratory judgment holding Section 193g unconstitutional "would have a restraining effect comparable to injunctive relief";
and that this factor, in conjunction with a purpose to seek injunctive relief as occasion should arise in the future in order to make effective a declaration of unconstitutionality, left the case in a posture appropriate for resolution by a three-judge court. The third jurisdictional issue was not resolved by the Court of Appeals for the reason that it thought that the requisite immediacy and reality of plaintiffs' grievances should be determined initially by the District Court "on the basis of the situation which is shown to exist at the time of the hearing on the remand."
The record before us on remand contains, in addition to the complaint which was before the Court of Appeals, the subsequent cross-motions for summary judgment and the supporting statements of undisputed facts. The cross-motions also have attached to them a variety of affidavits and exhibits. It is by reference to this record that we address ourselves to the jurisdictional issues.
At the time the Court of Appeals considered this issue, it was known to that court that Jeannette Rankin Brigade was no longer in existence, and that the individual plaintiffs disclaimed any specific and immediate plans for a demonstration or any purpose to ask for present injunctive relief. In holding the matter not moot, the court relied upon the allegations in the complaint that the claimed rights would be reasserted from time to time in the future, and that injunctive relief would be sought again if necessary. The court noted that, in any such event, "the availability of timely judicial action to avoid interference cannot be predicted." It characterized the rights in question as "imbedded in the Constitution . . . [and] of a continuing character;" and it added that "the Vietnam problem remains." Jeannette Rankin Brigade, supra, 137 U.S. App. D.C. at 157, 421 F.2d at 1092.
The record on remand offers no change in these respects, and we find no warrant for reaching a different result than did the Court of Appeals. Nothing has happened in respect of plaintiffs' purpose to assert their claimed rights which alters that court's description of "the controversy initiated by [plaintiffs]" as being "of a continuous character," and one not mooted by reason of periodic lulls in plaintiffs' activities. See Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911); Carroll v. President and Commissioners of Princess Anne County, 393 U.S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968).