Feiner v. New York
340 U.S. 315 (1951)

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U.S. Supreme Court

Feiner v. New York, 340 U.S. 315 (1951)

Feiner v. New York

No. 93

Argued October 17, 1950

Decided January 15, 1951

340 U.S. 315


Petitioner made an inflammatory speech to a mixed crowd of 75 or 80 Negroes and white people on a city street. He made derogatory remarks about President Truman, the American Legion, and local political officials, endeavored to arouse the Negroes against the whites, and urged that Negroes rise up in arms and fight for equal rights. The crowd, which blocked the sidewalk and overflowed into the street, became restless; its feelings for and against the speaker were rising, and there was at least one threat of violence. After observing the situation for some time without interference, police officers, in order to prevent a fight, thrice requested petitioner to get off the box and stop speaking. After his third refusal, and after he had been speaking over 30 minutes, they arrested him, and he was convicted of violating § 722 of the Penal Code of New York, which, in effect, forbids incitement of a breach of the peace. The conviction was affirmed by two New York courts on review.

Held: The conviction is sustained against a claim that it violated petitioner's right of free speech under the First and Fourteenth Amendments. Pp. 340 U. S. 316-321.

(a) Petitioner was neither arrested nor convicted for the making or the content of his speech, but for the reaction which it actually engendered. Pp. 340 U. S. 319-320.

(b) The police cannot be used as an instrument for the suppression of unpopular views; but, when a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace. P. 340 U. S. 321.

300 N.Y. 391, 91 N.E.2d 316, affirmed.

The case is stated in the first paragraph of the opinion. The decision below is affirmed, p. 340 U. S. 321.

Page 340 U. S. 316

Primary Holding
The First Amendment permits the government to take action against speech when there is a clear and present danger that it will cause a disturbance of the peace.
A crowd of about 80 people attended an open-air meeting where Feiner gave a speech. Pedestrians in the area were forced to walk into the street, and two police officers came in response to a complaint about the meeting. Some of Feiner's remarks encouraged African-Americans to take up weapons and fight for their rights against white people. The crowd, which was racially mixed, responded with some emotion, and one person said that the police were unable to control the crowd. Another person threatened violence if the police failed to act, so the officers eventually intervened to forestall the prospect of a riot. After Feiner twice refused to stop his speech, they arrested him.



  • Frederick Moore Vinson (Author)
  • Stanley Forman Reed
  • Robert Houghwout Jackson
  • Harold Hitz Burton
  • Tom C. Clark

A sufficiently clear and present danger arose when the crowd threatened violence and the speaker refused to stop his speech in response to the police requests. As a result, his conviction for violating public peace, order, and authority is proper within the limits of the state police power. The conviction arose from the defendant's surrounding content rather than the content or composition of his speech. The state has a strong interest in maintaining order on public streets.


  • Hugo Lafayette Black (Author)

No clear and present danger could be inferred from mere disagreements and objections by members of a crowd toward a speaker. Threats by one member of the audience to insult the speaker are insufficient evidence on which to base a belief that a riot is about to happen. The police should have focused on protecting the speaker's right to speech if they believed that he was in danger. Officers are not entitled to order someone making a lawful speech to stop, especially without providing an explanation. Minority views can be expected to encounter some resistance, and the police should not silence them when it inevitably arises.


  • William Orville Douglas (Author)
  • Sherman Minton


  • Felix Frankfurter (Author)

Case Commentary

As with other First Amendment cases from the mid-20th century, the Court had a somewhat sensitive understanding of what types of speech were likely to lead to imminent violence. It likely would be less willing to find this conduct unprotected now.

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