A city ordinance forbidding the use of sound amplification
devices in public places except with the permission of the Chief of
Police and prescribing no standards for the exercise of his
discretion is unconstitutional on its face, since it establishes a
previous restraint on the right of free speech in violation of the
First Amendment, made applicable to the states by the Fourteenth
Amendment.
Pp.
334 U. S. 558-562.
297 N.Y. 659, 76 N.E.2d 323, reversed.
Appellant was convicted of violating a city ordinance forbidding
the use of sound amplification devices except with the permission
of the Chief of Police. The County Court and the New York Court of
Appeals affirmed. 297 N.Y. 659, 76 N.E.2d 323. On appeal to this
Court,
reversed, p.
334 U. S.
562.
Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR.
JUSTICE BLACK.
This case presents the question of the validity under the
Fourteenth Amendment of a penal ordinance of the City of Lockport,
New York, which forbids the use of sound amplification devices
except with permission of the Chief of Police. [
Footnote 1]
Page 334 U. S. 559
Appellant is a minister of the religious sect known as Jehovah's
Witnesses. He obtained from the Chief of Police permission to use
sound equipment, mounted atop his car, to amplify lectures on
religious subjects. The lectures were given at a fixed place in a
public park on designated Sundays. When this permit expired, he
applied for another one, but was refused on the ground that
complaints had been made. Appellant nevertheless used his equipment
as planned on four occasions, but without a permit. He was tried in
Police Court for violations of the ordinance. It was undisputed
that he used his equipment to amplify speeches in the park, and
that they were on religious subjects. Some witnesses testified that
they were annoyed by the sound, though not by the content of the
addresses; others were not disturbed by either. The court upheld
the ordinance against the contention that it violated appellant's
rights of freedom of speech, assembly, and worship under the
Federal Constitution. Fines and jail sentences were imposed. His
convictions were affirmed without opinion by the County Court for
Niagara County and by the New York Court of Appeals, 297 N.Y. 659,
76 N.E.2d 323. The case is here on appeal.
We hold that § 3 of this ordinance is unconstitutional on its
face, for it establishes a previous restraint on the
Page 334 U. S. 560
right of free speech in violation of the First Amendment which
is protected by the Fourteenth Amendment against State action. To
use a loudspeaker or amplifier, one has to get a permit from the
Chief of Police. There are no standards prescribed for the exercise
of his discretion. The statute is not narrowly drawn to regulate
the hours or places of use of loudspeakers, or the volume of sound
(the decibels) to which they must be adjusted. The ordinance
therefore has all the vices of the ones which we struck down in
Cantwell v. Connecticut, 310 U. S. 296;
Lovell v. Griffin, 303 U. S. 444, and
Hague v. CIO, 307 U. S. 496.
In the
Cantwell case, a license had to be obtained in
order to distribute religious literature. What was religious was
left to the discretion of a public official. We held that judicial
review to rectify abuses in the licensing system did not save the
ordinance from condemnation on the grounds of previous restraint.
Lovell v. Griffin, supra, held void on its face an
ordinance requiring a license for the distribution of literature.
That ordinance, like the present one, was dressed in the garb of
the control of a "nuisance." But the Court made short shrift of the
argument, saying that approval of the licensing system would
institute censorship "in its baldest form." In
Hague v. CIO,
supra, we struck down a city ordinance which required a
license from a local official for a public assembly on the streets
or highways or in the public parks or public buildings. The
official was empowered to refuse the permit if, in his opinion, the
refusal would prevent "riots, disturbances or disorderly
assemblage." We held that the ordinance was void on its face
because it could be made "the instrument of arbitrary suppression
of free expression of views on national affairs." 307 U.S. p.
307 U. S.
516.
The present ordinance has the same defects. The right to be
heard is placed in the uncontrolled discretion of the
Page 334 U. S. 561
Chief of Police. He stands athwart the channels of communication
as an obstruction which can be removed only after criminal trial
and conviction and lengthy appeal. A more effective previous
restraint is difficult to imagine. Unless we are to retreat from
the firm positions we have taken in the past, we must give freedom
of speech in this case the same preferred treatment that we gave
freedom of religion in the
Cantwell case, freedom of the
press in the
Griffin case, and freedom of speech and
assembly in the
Hague case. [
Footnote 2]
Loudspeakers are today indispensable instruments of effective
public speech. The sound truck has become an accepted method of
political campaigning. It is the way people are reached. Must a
candidate for governor or the Congress depend on the whim or
caprice of the Chief of Police in order to use his sound truck for
campaigning?
Page 334 U. S. 562
Must he prove to the satisfaction of that official that his
noise will not be annoying to people?
The present ordinance would be a dangerous weapon if it were
allowed to get a hold on our public life. Noise can be regulated by
regulating decibels. The hours and place of public discussion can
be controlled. But to allow the police to bar the use of
loudspeakers because their use can be abused is like barring radio
receivers because they too make a noise. The police need not be
given the power to deny a man the use of his radio in order to
protect a neighbor against sleepless nights. The same is true
here.
Any abuses which loudspeakers create can be controlled by
narrowly drawn statutes. When a city allows an official to ban them
in his uncontrolled discretion, it sanctions a device for
suppression of free communication of ideas. In this case, a permit
is denied because some persons were said to have found the sound
annoying. In the next one, a permit may be denied because some
people find the ideas annoying. Annoyance at ideas can be cloaked
in annoyance at sound. The power of censorship inherent in this
type of ordinance reveals its vice.
Courts must balance the various community interests in passing
on the constitutionality of local regulations of the character
involved here. But, in that process, they should be mindful to keep
the freedoms of the First Amendment in a preferred position.
See Marsh v. Alabama, 326 U. S. 501,
326 U. S.
509.
Reversed.
[
Footnote 1]
The ordinance, insofar as pertinent, reads as follows:
"Section 2. Radio devices, etc. It shall be unlawful for any
person to maintain and operate in any building, or on any premises
or on any automobile, motor truck or other motor vehicle, any radio
device, mechanical device, or loud speaker or any device of any
kind whereby the sound therefrom is cast directly upon the streets
and public places and where such device is maintained for
advertising purposes or for the purpose of attracting the attention
of the passing public, or which is so placed and operated that the
sounds coming therefrom can be heard to the annoyance or
inconvenience of travelers upon any street or public places or of
persons in neighboring premises."
"Section 3. Exception. Public dissemination, through radio
loudspeakers, of items of news and matters of public concern and
athletic activities shall not be deemed a violation of this section
provided that the same be done under permission obtained from the
Chief of Police."
Appellant's conduct was regarded throughout as falling within
the types of activity enumerated in § 3. We take the ordinance as
construed by the State courts.
[
Footnote 2]
Cox v. New Hampshire, 312 U. S. 569,
312 U. S.
577-578, did not depart from the rule of these earlier
cases, but reemphasized the vice of the type of ordinance we have
here.
Davis v. Massachusetts, 167 U. S.
43, was distinguished in the
Hague case, 307
U.S. pp.
307 U. S.
514-516, which likewise involved an ordinance regulating
the use of public streets and parks. It was there said,
"We have no occasion to determine whether, on the facts
disclosed, the
Davis case was rightly decided, but we
cannot agree that it rules the instant case. 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."
We adhere to that view. Though the statement was that of only
three Justices, it plainly indicated the route the majority
followed, who, on the merits, did not consider the
Davis
case to be controlling.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE REED and MR.
JUSTICE BURTON concur, dissenting.
The appellant's loudspeakers blared forth in a small park in a
small city.
* The park was
about 1,600 feet
Page 334 U. S. 563
long, and from 250 to 400 feet wide. It was used primarily for
recreation, containing benches, picnic and athletic facilities, and
a children's wading pool and playground. Estimates of the range of
the sound equipment varied from about 200 to 600 feet. The
attention of a large fraction of the area of the park was thus
commanded.
The native power of human speech can interfere little with the
self-protection of those who do not wish to listen. They may easily
move beyond earshot, just as those who do not choose to read need
not have their attention bludgeoned by undesired reading matter.
And so utterances by speech or pen can neither be forbidden nor
licensed, save in the familiar classes of exceptional situations.
Lovell v. Griffin, 303 U. S. 444;
Hague v. CIO, 307 U. S. 496;
Schneider v. Irvington, 308 U. S. 147;
Chaplinsky v. New Hampshire, 315 U.
S. 568. But modern devices for amplifying the range and
volume of the voice, or its recording, afford easy, too easy,
opportunities for aural aggression. If uncontrolled, the result is
intrusion into cherished privacy. The refreshment of mere silence,
or meditation, or quiet conversation, may be disturbed or precluded
by noise beyond one's personal control.
Municipalities have conscientiously sought to deal with the new
problems to which sound equipment has given rise, and have devised
various methods of control to make city life endurable.
See McIntire and Rhyne, Radio and Municipal Regulations
(National Institute of Municipal Law Officers, Report No. 62,
1940), pp. 28
et seq. Surely there is not a constitutional
right to force unwilling people to listen.
Cf. Otto,
Speech and Freedom of Speech, in Freedom and Experience (Edited by
Hook and Konvitz, 1947) 78, 83
et seq. And so I cannot
agree that we must deny the right of a State to control these
broadcasting devices so as to safeguard the rights of
Page 334 U. S. 564
others not to be assailed by intrusive noise, but to be free to
put their freedom of mind and attention to uses of their own
choice.
Coming to the facts of the immediate situation, I cannot say
that it was beyond constitutional limits to refuse a license to the
appellant for the time and place requested. The State was entitled
to authorize the local authorities of Lockport to determine that
the wellbeing of those of its inhabitants who sought quiet and
other pleasures that a park affords outweighed the appellant's
right to force his message upon them. Nor did it exceed the bounds
of reason for the chief of police to base his decision refusing a
license upon the fact that the manner in which the license had been
used in the past was destructive of the enjoyment of the park by
those for whom it was maintained. That people complained about an
annoyance would seem to be a pretty solid basis in experience for
not sanctioning its continuance.
Very different considerations come into play when the free
exercise of religion is subjected to a licensing system whereby a
minor official determines whether a cause is religious. This was
the problem presented by
Cantwell v. Connecticut,
310 U. S. 296,
and, of course, we held that
"[s]uch a censorship of religion as the means of determining its
right to survive is a denial of liberty protected by the First
Amendment and included in the liberty which is within the
protection of the Fourteenth."
310 U.S. at
310 U. S. 305.
To determine whether a cause is, or is not, "religious" opens up
too wide a field of personal judgment to be left to the mere
discretion of an official. As to the allowable range of judgment
regarding the scope of "religion,"
see Judge Augustus N.
Hand in
United States v. Kauten, 133 F.2d 703, 708. The
matter before us is of quite a different order. It is not
unconstitutional for a State to vest in a public official the
determination of what is in effect a nuisance merely because
Page 334 U. S. 565
such authority may be outrageously misused by trying to stifle
the expression of some undesired opinion under the meretricious
cloak of a nuisance. Judicial remedies are available for such abuse
of authority, and courts, including this Court, exist to enforce
such remedies.
Even the power to limit the abuse of sound equipment may not be
exercised with a partiality unrelated to the nuisance. But there is
here no showing of either arbitrary action or discrimination. There
is no basis for finding that noisemakers similar to appellant would
have obtained a license for the time and place requested. Reference
is found in the testimony to the use of loudspeakers for Lutheran
services in a nearby ball field. But the ball field was outside the
park in which appellant blared to his audience, and there is
nothing in the record to show that the Lutherans could have used
their amplifying equipment within the park, or that the appellant
would have been denied permission to use such equipment in the ball
field.
See Lehon v. Atlanta, 242 U. S.
53. State action cannot be found hypothetically
unconstitutional.
New York ex rel. Hatch v. Reardon,
204 U. S. 152.
The men whose labors brought forth the Constitution of the
United States had the street outside Independence Hall covered with
earth so that their deliberations might not be disturbed by passing
traffic. Our democracy presupposes the deliberative process as a
condition of thought and of responsible choice by the electorate.
To the Founding Fathers, it would hardly seem a proof of progress
in the development of our democracy that the blare of sound trucks
must be treated as a necessary medium in the deliberative process.
In any event, it would startle them to learn that the manner and
extent of the control of the blare of the sound trucks by the
States of the Union, when such control is not arbitrarily and
discriminatorily
Page 334 U. S. 566
exercised, must satisfy what this Court thinks is the desirable
scope and manner of exercising such control.
We are dealing with new technological devices and with attempts
to control them in order to gain their benefits while maintaining
the precious freedom of privacy. These attempts, being
experimental, are bound to be tentative, and the views I have
expressed are directed towards the circumstances of the immediate
case. Suffice it to say that the limitations by New York upon the
exercise of appellant's rights of utterance did not, in my view,
exceed the accommodation between the conflicting interests which
the State was here entitled to make in view of time and place and
circumstances.
See Cox v. New Hampshire, 312 U.
S. 569.
* The last census gave the population of Lockport as 24,379.
MR. JUSTICE JACKSON, dissenting.
I dissent from this decision, which seems to me neither
judicious nor sound, and to endanger the great right of free speech
by making it ridiculous and obnoxious, more than the ordinance in
question menaces free speech by regulating use of loudspeakers. Let
us state some facts which the Court omits:
The City of Lockport, New York, owns and maintains a public park
of some 28 acres dedicated by deed to "Park purposes exclusively."
The scene of action in this case is an area therein set apart for
the people's recreation. The City has provided it with tables,
benches, and fireplaces for picnic parties, a playground and wading
pool for children, and facilities for such games as horseshoe
pitching, bowling and baseball.
The appellant, one of Jehovah's Witnesses, contends, and the
Court holds, that, without the permission required by city
ordinance, he may set up a sound truck so as to flood this area
with amplified lectures on religious subjects. It must be
remembered that he demands even more than the right to speak and
hold a meeting in this
Page 334 U. S. 567
area which is reserved for other and quite inconsistent
purposes. He located his car, on which loudspeakers were mounted,
either in the park itself, not open to vehicles, or in the street
close by. The microphone for the speaker was located some little
distance from the car and in the park, and electric wires were
strung, in one or more instances apparently across the sidewalk,
from the one to the other. So that what the Court is holding is
that the Constitution of the United States forbids a city to
require a permit for a private person to erect, in its streets,
parks and public places, a temporary public address system which
certainly has potentialities of annoyance and even injury to park
patrons if carelessly handled. It was for setting up this system of
microphone, wires, and sound truck without a permit that this
appellant was convicted -- it was not for speaking.
It is astonishing news to me if the Constitution prohibits a
municipality from policing, controlling or forbidding erection of
such equipment by a private party in a public park. Certainly
precautions against annoyance or injury from operation of such
devices are not only appropriate, but I should think a duty of the
city in supervising such public premises. And a very appropriate
means to supervision is a permit which will inform the city's
police officers of the time and place when such apparatus is to be
installed in the park. I think it is a startling perversion of the
Constitution to say that it wrests away from the states and their
subdivisions all control of the public property so that they cannot
regulate or prohibit the irresponsible introduction of contrivances
of this sort into public places.
The Court, however, ignores the aspects of the matter that grow
out of setting up the system of amplifying appliances, wires and
microphones on public property, which distinguish it from the cases
cited as authority.
Page 334 U. S. 568
It treats the issue only as one of free speech. To my mind this
is not a free speech issue. [
Footnote
2/1] Lockport has in no way denied or restricted the free use,
even in its park, of all of the facilities for speech with which
nature has endowed the appellant. It has not even interfered with
his inviting an assemblage in a park space not set aside for that
purpose. [
Footnote 2/2] But can it
be that society
Page 334 U. S. 569
has no control of apparatus which, when put to unregulated
proselyting, propaganda, and commercial uses, can render life
unbearable? It is intimated that the City can control the decibels;
if so, why may it not prescribe zero decibels as appropriate to
some places? It seems to me that society has the right to control,
as to place, time and volume, the use of loudspeaking devices for
any purpose, provided its regulations are not unduly arbitrary,
capricious or discriminatory.
But the Court points out that propagation of his religion is the
avowed and only purpose of appellant, and holds that Lockport
cannot stop the use of loudspeaker systems on its public property
for that purpose. If it is to be treated as a case merely of
religious teaching, I still could not agree with the decision. Only
a few weeks ago, we held that the Constitution prohibits a state or
municipality from using tax supported property "to aid religious
groups to spread their faith."
McCollum v. Board of
Education, 333 U. S. 203.
Today, we say it compels them to let it be used for that purpose.
In the one case, the public property was appropriated to school
uses; today, it is public property appropriated and equipped for
recreational purposes. I think Lockport had the right to allocate
its public property to those purposes, and to keep out of it
installations of devices which would flood the area with religious
appeals obnoxious to many, and thereby deprive the public of the
enjoyment of the property for the purposes for which it was
properly set aside. And I cannot see
Page 334 U. S. 570
how we can read the Constitution one day to forbid, and the next
day to compel, use of public tax supported property to help a
religious sect spread its faith.
There is not the slightest evidence of discrimination or
prejudice against the appellant because of his religion or his
ideas. This same appellant, not a resident of Lockport, but of
Buffalo, by the way, was granted a permit by the Chief of Police
and used this park for four successive Sundays during the same
summer in question. What has been refused is his application for a
second series of four more uses of the park. Lockport is in a
climate which has only about three months of weather adaptable for
park use. There are 256 recognized religious denominations in the
United States, and, even if the Lockport populace supports only a
few of these, it is apparent that Jehovah's Witnesses were granted
more than their share of the Sunday time available on any fair
allocation of it among denominations.
There is no evidence that any other denomination has ever been
permitted to hold meetings or, for that matter, has ever sought to
hold them in the recreation area. It appears that, on one of the
Sundays in question, the Lutherans were using the ball park. This
also appears to be public property. It is equipped with installed
loudspeakers, a grandstand, and bleachers, and surrounded by a
fence six feet high. There is no indication that these facilities
would not be granted to Jehovah's Witnesses on the same terms as to
the Lutherans. It is evident, however, that Jehovah's Witnesses did
not want an enclosed spot to which those who wanted to hear their
message could resort. Appellant wanted to thrust their message upon
people who were in the park for recreation, a type of conduct which
invades other persons' privacy and, if it has no other control, may
lead to riots and disorder.
Page 334 U. S. 571
The Court expresses great concern lest the loudspeakers of
political candidates be controlled if Jehovah's Witnesses can be.
That does not worry me. Even political candidates ought not to be
allowed irresponsibly to set up sound equipment in all sorts of
public places, and few of them would regard it as tactful
campaigning to thrust themselves upon picnicking families who do
not want to hear their message. I think the Court is overconcerned
about danger to political candidacies, and I would deal with that
problem when, and if, it arises.
But it is said the state or municipality may not delegate such
authority to a Chief of Police. I am unable to see why a state or
city may not judge for itself whether a Police Chief is the
appropriate authority to control permits for setting up
sound-amplifying apparatus.
Cox v. New Hampshire,
312 U. S. 569. It
also is suggested that the city fathers have not given sufficient
guidance to his discretion. But I did not suppose our function was
that of a council of revision. The issue before us is whether what
has been done has deprived this appellant of a constitutional
right. It is the law as applied that we review, not the abstract,
academic questions which it might raise in some more doubtful
case.
I disagree entirely with the idea that
"[c]ourts must balance the various community interests in
passing on the constitutionality of local regulations of the
character involved here."
It is for the local communities to balance their own interests
-- that is politics -- and what courts should keep out of. Our only
function is to apply constitutional limitations.
I can only repeat the words of Mr. Justice Holmes, disregarded
in his time and even less heeded now:
"I have not yet adequately expressed the more than anxiety that
I feel at the ever-increasing scope given to the Fourteenth
Amendment in cutting down what
Page 334 U. S. 572
I believe to be the constitutional rights of the States. As the
decisions now stand, I see hardly any limit but the sky to the
invalidating of those rights if they happen to strike a majority of
this Court as for any reason undesirable. I cannot believe that the
Amendment was intended to give us
carte blanche to embody
our economic or moral beliefs in its prohibitions. [
Footnote 2/3]"
And even if this were a civil liberties case, I should agree
with Chief Justice Hughes, writing for a unanimous Court:
"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. [
Footnote 2/4]"
The judgment of the Court of Appeals of New York should be
affirmed.
[
Footnote 2/1]
More than fifty years ago, this Court, in
Davis v.
Massachusetts, 167 U. S. 43,
affirmed a state court decision (162 Mass. 510) written by Mr.
Justice Holmes and holding constitutional an ordinance providing
that
"no person shall, in or upon any of the public grounds, make any
public address . . . except in accordance with a permit from the
mayor."
Mr. Justice Holmes had pointed out that the attack on the
ordinance's constitutionality
"assumes that the ordinance is directed against free speech
generally, . . . whereas, in fact, it is directed toward the modes
in which Boston Common may be used."
That case, directly in point here, and approving a regulation of
the right of speech itself, certainly controls this one, which
involves only regulation of the use of amplifying devices, and, as
applied to this appellant, forbade only unauthorized use in a park
dedicated exclusively to park purposes. Moreover, the
Davis case approved the requirement that a permit be
obtained from a city official before "any public address" could be
made "in or upon any of the public grounds."
The
Davis case was not overruled in the cases cited by
the Court. And all of those cases were considered and distinguished
in
Cox v. New Hampshire, 312 U. S. 569,
written by Mr. Chief Justice Hughes for a unanimous Court, and
which approved regulation and licensing of parades and processions
in public streets even for admittedly religious purposes.
The case of
Hague v. CIO, 307 U.
S. 496, cannot properly be quoted in this connection,
for no opinion therein was adhered to by a majority of the Court.
The quotation in the Court's opinion today had the support of only
two Justices, with a possible third. The failure of six or seven
Justices to subscribe to those views would seem to fatally impair
the standing of that quotation as an authority.
[
Footnote 2/2]
Nothing in the ordinance interferes with freedom of religion,
freedom of assembly, or freedom of the press. Indeed, the effect of
§ 3, which the Court summarily strikes down as void on its face, is
to authorize the Chief of Police to permit use of "radio devices,
mechanical devices, or loud speakers" where the subject matter is
"news and matters of public concern and athletic activities," even
though "the sound therefrom is cast directly upon the streets and
public places" and
"the sounds coming therefrom can be heard to the annoyance or
inconvenience of the travelers upon any street or public places or
of persons in neighboring premises,"
which would, without § 3, be barred by § 2.
[
Footnote 2/3]
Baldwin v. Missouri, 281 U. S. 586,
281 U. S.
595.
[
Footnote 2/4]
Cox v. New Hampshire, 312 U. S. 569,
312 U. S.
574.