Appellants' applications to a City Council for permits to use a
city park for Bible talks were denied, for no apparent reason
except the Council's dislike for appellants and disagreement with
their views. For attempting to hold public meetings and make
speeches in the park without permits, they were convicted on
charges of disorderly conduct, although there was no evidence of
disorder, threat of violence or riot, and they had conducted
themselves in a manner beyond reproach. There was no ordinance
prohibiting or regulating the use of the park, and there were no
established standards for the granting of permits; but permits
customarily had been granted for similar purposes, including
meetings of religious and fraternal organizations.
Held: Appellants were denied equal protection of the
laws, in the exercise of freedom of speech and religion, contrary
to the First and Fourteenth Amendments. Pp.
340 U. S.
269-273.
(a) The right to equal protection of the laws, in the exercise
of those freedoms of speech and religion protected by the First and
Fourteenth Amendments, has a firmer foundation than the whims or
personal opinions of a local governing body. P.
340 U. S.
272.
(b) A contention that state and city officials should have the
power to exclude religious groups, as such, from the use of public
parks was no justification when permits had always been issued for
the use of the park by religious organizations. Pp.
340 U. S.
272-273.
(c) A contention that the park was designated as a sanctuary for
peace and quiet was no justification when its use for patriotic
celebrations by fraternal organizations was permitted. P.
340 U. S.
273.
(d) The lack of standards in the license-issuing "practice"
renders that "practice" a prior restraint in contravention of the
Fourteenth Amendment, and the completely arbitrary and
discriminatory refusal to grant the permits was a denial of equal
protection. P.
340 U. S.
273.
Page 340 U. S. 269
(e) Since the convictions were based upon the lack of permits
which were denied unconstitutionally, the convictions cannot stand.
P.
340 U. S. 273.
___ Md. ___, 71 A.2d 9, reversed.
For attempts to hold religious meetings in a public park without
permits, appellants were convicted of disorderly conduct under
Flack's Md.Ann. Code, 1939 (1947 Supp.), Art. 27, §131. The
Maryland Court of Appeals declined to review their convictions. ___
Md. ___, 71 A.2d 9. On appeal to this Court,
reversed, p.
340 U. S.
273.
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
Appellants are two members of the religious group known as
Jehovah's Witnesses. At the invitation of local coreligionists,
they scheduled Bible talks in the public park of the city of Havre
de Grace, Maryland. Although there is no ordinance prohibiting or
regulating the use of this park, it has been the custom for
organizations and individuals desiring to use it for meetings and
celebrations of various kinds to obtain permits from the Park
Commissioner. In conformity with this practice, the group requested
permission of the Park Commissioner for use of the park on four
consecutive Sundays in June and July, 1949. This permission was
refused.
Having been informed that an Elks' Flag Day ceremony was
scheduled for the first Sunday, the applicants did not pursue their
request for the use of the park for that particular day, but,
instead, filed a written request with the City Council for the
following three Sundays. This
Page 340 U. S. 270
request was filed at the suggestion of the Mayor, it appearing
that, under the custom of the municipality, there is a right of
appeal to the City Council from the action of the Park
Commissioner. The Council held a hearing at which the request was
considered. At this hearing, the applicants and their attorney
appeared. The request was denied.
Because they were awaiting the decision of the Council on their
application, the applicants took no further steps on the second
Sunday, but, after the denial of the request, they proceeded to
hold their meeting on the third Sunday. No sooner had appellant
Niemotko opened the meeting and commenced delivering his discourse
than the police, who had been ordered to the park by the Mayor,
arrested him. At the meeting held in the park on the fourth and
following Sunday, appellant Kelley was arrested before he began his
lecture.
Appellants were subsequently brought to trial before a jury on a
charge of disorderly conduct under the Maryland disorderly conduct
statute. Flack's Md.Ann. Code, 1939 (1947 Cum.Supp.), art. 27, §
131. They were convicted, and each fined $25 and costs. Under the
rather unique Maryland procedure, the jury is the judge of the law
as well as the facts. Md.Const., art. XV, § 5;
see opinion
below, ___ Md. ___, 71 A.2d 9, 11. This means that there is
normally no appellate review of any question dependent on the
sufficiency of the evidence. Relying on this Maryland rule, the
Court of Appeals declined to review the case under its normal
appellate power, and further declined to take the case on
certiorari, stating that the issues were not "matters of public
interest" which made it desirable to review. Being of opinion that
the case presented substantial constitutional issues, we noted
probable jurisdiction, the appeal being properly here under 28
U.S.C. § 1257(2).
Page 340 U. S. 271
In cases in which there is a claim of denial of rights under the
Federal Constitution, this Court is not bound by the conclusions of
lower courts, but will reexamine the evidentiary basis on which
those conclusions are founded.
See Feiner v. New York,
340 U. S. 315. A
brief recital of the facts as they were adduced at this trial will
suffice to show why these convictions cannot stand. At the time of
the arrest of each of these appellants, there was no evidence of
disorder, threats of violence or riot. There was no indication that
the appellants conducted themselves in a manner which could be
considered as detrimental to the public peace or order. On the
contrary, there was positive testimony by the police that each of
the appellants had conducted himself in a manner beyond reproach.
It is quite apparent that any disorderly conduct which the jury
found must have been based on the fact that appellants were using
the park without a permit, although, as we have indicated above,
there is no statute or ordinance prohibiting or regulating the use
of the park without a permit.
This Court has many times examined the licensing systems by
which local bodies regulate the use of their parks and public
places.
See Kunz v. New York, decided this day,
post, p.
340 U. S. 290.
See also Saia v. New York, 334 U.
S. 558 (1948);
Hague v. CIO, 307 U.
S. 496 (1939);
Lovell v. Griffin, 303 U.
S. 444 (1938). In those cases, this Court condemned
statutes and ordinances which required that permits be obtained
from local officials as a prerequisite to the use of public places,
on the grounds that a license requirement constituted a prior
restraint on freedom of speech, press and religion, and, in the
absence of narrowly drawn, reasonable and definite standards for
the officials to follow, must be invalid.
See Kunz v. New York,
post, p.
340 U. S. 290. In
the instant case, we are met with no ordinance or statute
regulating or prohibiting the use of the park; all that is here is
an amorphous
Page 340 U. S. 272
"practice" whereby all authority to grant permits for the use of
the park is in the Park Commissioner and the City Council. No
standards appear anywhere; no narrowly drawn limitations; no
circumscribing of this absolute power; no substantial interest of
the community to be served. It is clear that all that has been said
about the invalidity of such limitless discretion must be equally
applicable here.
This case points up with utmost clarity the wisdom of this
doctrine. For the very possibility of abuse, which those earlier
decisions feared, has occurred here. Indeed, rarely has any case
been before this Court which shows so clearly an unwarranted
discrimination in a refusal to issue such a license. It is true
that the City Council held a hearing at which it considered the
application. But we have searched the record in vain to discover
any valid basis for the refusal. In fact, the Mayor testified that
the permit would probably have been granted if, at the hearing, the
applicants had not started to "berate" the Park Commissioner for
his refusal to issue the permit. The only questions asked of the
Witnesses at the hearing pertained to their alleged refusal to
salute the flag, their views on the Bible, and other issues
irrelevant to unencumbered use of the public parks. The conclusion
is inescapable that the use of the park was denied because of the
City Council's dislike for or disagreement with the Witnesses or
their views. The right to equal protection of the laws, in the
exercise of those freedoms of speech and religion protected by the
First and Fourteenth Amendments, has a firmer foundation than the
whims or personal opinions of a local governing body.
In this Court, it is argued that state and city officials should
have the power to exclude religious groups, as such, from the use
of the public parks. But that is not this case. For whatever force
this contention could possibly have is lost in the light of the
testimony of the Mayor
Page 340 U. S. 273
at the trial that, within his memory, permits had always been
issued for religious organizations and Sunday school picnics. We
might also point out that the attempt to designate the park as a
sanctuary for peace and quiet not only does not defeat these
appellants, whose own conduct created no disturbance, but this
position is also more than slightly inconsistent, since, on the
first Sunday here involved, the park was the suits for the Flag Day
ceremony of the Order of Elks.
It thus becomes apparent that the lack of standards in the
license-issuing "practice" renders that "practice" a prior
restraint in contravention of the Fourteenth Amendment, and that
the completely arbitrary and discriminatory refusal to grant the
permits was a denial of equal protection. Inasmuch as the basis of
the convictions was the lack of the permits, and that lack was, in
turn, due to the unconstitutional defects discussed, the
convictions must fall.
Reversed.
MR. JUSTICE BLACK concurs in the result.
* Together with No. 18,
Kelley v. Maryland, also on
appeal from the same court.
MR. JUSTICE FRANKFURTER, concurring in the result.
The issues in these cases concern living law in some of its most
delicate aspects. To smother differences of emphasis and nuance
will not help its wise development. When the way a result is
reached may be important to results hereafter to be reached, law is
best respected by individual expression of opinion.
These cases present three variations upon a theme of great
importance. Legislatures, local authorities, and the courts have
for years grappled with claims of the right to disseminate ideas in
public places as against claims of an effective power in government
to keep the
Page 340 U. S. 274
peace and to protect other interests of a civilized community.
These cases are of special interest because they show the attempts
of three communities to meet the problem in three different ways.
It will, I believe, further analysis to use the three situations as
cross-lights on one another.
I
1.
Nos. 17 and 18 -- Havre de Grace, Maryland, sought
to solve this tangled problem by permitting its park commissioner
and city council to act as censors. The city allowed use of its
park for public meetings, including those of religious groups, but,
by custom, a permit was required. In this case, the city council
questioned the representatives of Jehovah's Witnesses, who had
requested a license, about their views on saluting the flag, the
Catholic Church, service in the armed forces, and other matters in
no way related to public order or public convenience in use of the
park. The Mayor testified that he supposed the permit was denied
"because of matters that were brought out at [the] meeting." When
Niemotko and Kelley, Jehovah's Witnesses, attempted to speak, they
were arrested for disturbing the peace. There was no disturbance of
the peace, and it is clear that they were arrested only for want of
a permit.
2.
No. 50 -- New York City set up a licensing system to
control the use of its streets and parks for public religious
services. The New York Court of Appeals construed the city's
ordinance so as to sanction the right of the Police Commissioner to
revoke or refuse a license for street preaching if he found the
person was likely to "ridicule" or "denounce" religion. In 1946,
after hearings before a Fourth Deputy Police Commissioner, Kunz'
license was revoked because he had "ridiculed" and "denounced"
religion while speaking in one of New York's crowded centers, and
it was thought likely that he would continue
Page 340 U. S. 275
to do so. In 1947 and 1948, he was refused a license on the sole
ground of the determination made in 1946. In September of 1948, he
was arrested for speaking at Columbus Circle without a license.
3.
No. 93 -- Syracuse, New York, did not set up a
licensing system but relied on a statute which is, in substance, an
enactment of the common law offense of breach of the peace. Feiner,
the defendant, made a speech near the intersection of South McBride
and Harrison Streets in Syracuse. He spoke from a box located on
the parking between the sidewalk and the street, and made use of
sound amplifiers attached to an automobile. A crowd of 75 to 80
persons gathered around him, and several pedestrians had to go into
the highway in order to pass by. Two policemen observed the
meeting. In the course of his speech, Feiner referred to the Mayor
of Syracuse as a "champagne-sipping bum," to the President as a
"bum," and to the American Legion as "Nazi Gestapo agents." Feiner
also indicated in an excited manner that Negroes did not have equal
rights, and should rise up in arms. His audience included a number
of Negroes.
One man indicated that if the police did not get the speaker off
the stand, he would do it himself. The crowd, which consisted of
both those who opposed and those who supported the speaker, was
restless. There was not yet a disturbance but, in the words of the
arresting officer, whose story was accepted by the trial judge, he
"stepped in to prevent it from resulting in a fight. After all,
there was angry muttering and pushing." Having ignored two requests
to stop speaking, Feiner was arrested.
II
Adjustment of the inevitable conflict between free speech and
other interests is a problem as persistent as it is perplexing. It
is important to bear in mind that this Court can only hope to set
limits and point the way. It
Page 340 U. S. 276
falls to the lot of legislative bodies and administrative
officials to find practical solutions within the frame of our
decisions. There are now so many of these decisions, arrived at by
the
ad hoc process of adjudication, that it is desirable
to make a cruise of the timber.
In treating the precise problem presented by the three
situations before us -- how to reconcile the interest in allowing
free expression of ideas in public places with the protection of
the public peace and of the primary uses of streets and parks -- we
should first set to one side decisions which are apt to mislead,
rather than assist. Contempt cases and convictions under State and
Federal statutes aimed at placing a general limitation upon what
may be said or written bring additional factors into the equation.
Cases like
Near v. Minnesota, 283 U.
S. 697; and
Grosjean v. American Press Co.,
297 U. S. 233, are
rooted in historic experience regarding prior restraints on
publication. They give recognition to the role of the press in a
democracy, a consideration not immediately pertinent. The picketing
cases are logically relevant, since they usually involve, in part,
dissemination of information in public places. But here also enter
economic and social interests outside the situations before us.
See Hughes v. Superior Court, 339 U.
S. 460,
339 U. S.
464-465.
The cases more exclusively concerned with restrictions upon
expression in its divers forms in public places have answered
problems varying greatly in content and difficulty.
1. The easiest cases have been those in which the only interest
opposing free communication was that of keeping the streets of the
community clean. This could scarcely justify prohibiting the
dissemination of information by handbills or censoring their
contents. In
Lovell v. Griffin, 303 U.
S. 444, an ordinance requiring a permit to distribute
pamphlets was held invalid where the licensing standard was
"not limited to ways which might be
Page 340 U. S. 277
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."
Id. at
303 U. S. 451.
In
Hague v. CIO, 307 U. S. 496, a
portion of the ordinance declared invalid prohibited the
distribution of pamphlets. In
Schneider v. State,
308 U. S. 147,
three of the four ordinances declared invalid by the Court
prohibited the distribution of pamphlets. In
Jamison v.
Texas, 318 U. S. 413, the
Court again declared invalid a municipal ordinance prohibiting the
distribution of all handbills.
2. In a group of related cases, regulation of solicitation has
been the issue. Here, the opposing interest is more substantial --
protection of the public from fraud and from criminals who use
solicitation as a device to enter homes. The fourth ordinance
considered in
Schneider v. State, supra, allowed the chief
of police to refuse a permit if he found, in his discretion, that
the canvasser was not of good character or was canvassing for a
project not free from fraud. The ordinance was found invalid
because the officer who could, in his discretion, make the
determinations concerning "good character" and "project not free
from fraud" in effect held the power of censorship. In
Cantwell
v. Connecticut, 310 U. S. 296,
conviction was, in part, under a State statute requiring a permit
for religious solicitation. The statute was declared invalid
because the licensing official could determine what causes were
religious, allowing a "censorship of religion".
Id. at
310 U. S. 305.
Again, in
Largent v. Texas, 318 U.
S. 418, an ordinance requiring a permit from the mayor,
who was to issue the permit only if he deemed it "proper or
advisable", was declared invalid as creating an administrative
censorship. The Court has also denied the right of those in control
of a company town or Government housing project to prohibit
solicitation by Jehovah's Witnesses.
Marsh v.
Alabama,
Page 340 U. S. 278
326 U. S. 501;
Tucker v. Texas, 326 U. S. 517. In
Thomas v. Collins, 323 U. S. 516, the
solicitation was in the interest of labor, rather than religion.
There, a State statute requiring registration of labor organizers
was found unconstitutional when invoked to enjoin a speech in a
public hall. The interest of the State in protecting its citizens
through the regulation of vocations was deemed insufficient to
support the statute.
3. Whether the sale of religious literature by Jehovah's
Witnesses can be subjected to nondiscriminatory taxes on
solicitation has introduced another opposing interest -- the right
of the community to raise funds for the support of the government.
In
Jones v. Opelika, 319 U. S. 103,
vacating 316 U. S. 584, and
in
Murdock v. Pennsylvania, 319 U.
S. 105, the Court held that imposition of the tax upon
itinerants was improper. In
Follett v. McCormick,
321 U. S. 573, the
Court went further to hold unconstitutional the imposition of a
flat tax on book agents upon a resident who made his living selling
religious books.
4.
Martin v. Struthers, 319 U.
S. 141, represents another situation. An ordinance of
the City of Struthers, Ohio, forbade knocking on the door or
ringing the doorbell of a residence in order to deliver a handbill.
Prevention of crime and assuring privacy in an industrial community
where many worked on night shifts, and had to obtain their sleep
during the day, were held insufficient to justify the ordinance in
the case of handbills distributed on behalf of Jehovah's
Witnesses.
5. In contrast to these decisions, the Court held in
Prince
v. Massachusetts, 321 U. S. 158,
that the application to Jehovah's Witnesses of a State statute
providing that no boy under 12 or girl under 18 should sell
periodicals on the street was constitutional. Claims of immunity
from regulation of religious activities were subordinated to the
interest of the State in protecting its children.
Page 340 U. S. 279
6. Control of speeches made in streets and parks draws on still
different considerations -- protection of the public peace and of
the primary uses of travel and recreation for which streets and
parks exist.
(a) The pioneer case concerning speaking in parks and streets is
Davis v. Massachusetts, 167 U. S. 43, in
which this Court adopted the reasoning of the opinion below written
by Mr. Justice Holmes, while on the Massachusetts Supreme Judicial
Court.
Commonwealth v. Davis, 162 Mass. 510, 39 N.E. 113.
The Boston ordinance which was upheld required a permit from the
mayor for any person to "make any public address, discharge any
cannon or firearm, expose for sale any goods, . . ." on public
grounds. This Court respected the finding that the ordinance was
not directed against free speech, but was intended as "a proper
regulation of the use of public grounds." 162 Mass. at 512, 39 N.E.
at 113.
An attempt to derive from dicta in the
Davis case the
right of a city to exercise any power over its parks, however,
arbitrary or discriminatory, was rejected in
Hague v. CIO,
supra. The ordinance presented in the
Hague case
required a permit for meetings on public ground, the permit to be
refused by the licensing official only "for the purpose of
preventing riots, disturbances or disorderly assemblage."
Id. at
307 U. S. 502.
The facts of the case, however, left no doubt that the licensing
power had been made an "instrument of arbitrary suppression of free
expression of views on national affairs."
Id. at
307 U. S. 516.
And the construction given the ordinance in the State courts gave
the licensing officials wide discretion.
See Thomas v.
Casey, 121 N.J.L. 185, 1 A.2d 866. The holding of the
Hague case was not that a city could not subject the use
of its streets and parks to reasonable regulation. The holding was
that the licensing officials could not be given power arbitrarily
to suppress free expression, no matter under what cover of law they
purported to act.
Page 340 U. S. 280
Cox v. New Hampshire, 312 U. S. 569,
made it clear that the United States Constitution does not deny
localities the power to devise a licensing system if the exercise
of discretion by the licensing officials is appropriately confined.
A statute requiring a permit and license fee for parades had been
narrowly construed by the State courts. The license could be
refused only for "considerations of time, place and manner so as to
conserve the public convenience," and the license fee was "to meet
the expense incident to the administration of the act and to the
maintenance of public order in the matter licensed."
Id.
at
312 U. S.
575-576. The licensing system was sustained even though
the tax, ranging from a nominal amount to $300, was determined by
the licensing officials on the facts of each case.
(b) Two cases have involved the additional considerations
incident to the use of sound trucks. In
Saia v. New York,
334 U. S. 558, the
ordinance required a license from the chief of police for use of
sound amplification devices in public places. The ordinance was
construed not to prescribe standards to be applied in passing upon
a license application. In the particular case, a license to use a
sound truck in a small city park had been denied because of
complaints about the noise which resulted whom sound amplifiers had
previously been used in the park. There was no indication that the
license had been refused because of the content of the speeches.
Nevertheless, the Court held the ordinance unconstitutional. In
Kovacs v. Cooper, 336 U. S. 77, part
of the Court construed the ordinance as allowing conviction for
operation of any sound truck emitting "loud and raucous" noises,
and part construed the ordinance to ban all sound trucks. The
limits of the decision of the Court upholding the ordinance are
therefore not clear, but the result, in any event, does not leave
the
Saia decision intact.
Page 340 U. S. 281
(c) On a few occasions, the Court has had to pass on a
limitation upon speech by a sanction imposed after the event,
rather than by a licensing statute. In
Cantwell v. Connecticut,
supra, one of the convictions was for common law breach of the
peace. The problem was resolved in favor of the defendant by
reference to
Schenck v. United States, 249 U. S.
47,
249 U. S. 52, in
view of the inquiry whether, on the facts of the case, there was
"such clear and present menace to public peace and order as to
render him liable to conviction of the common law offense in
question." 310 U.S. at
310 U. S. 311.
In
Chaplinsky v. New Hampshire, 315 U.
S. 568, a State statute had enacted the common law
doctrine of "fighting words":
"No person shall address any offensive, derisive or annoying
word to any other person who is lawfully in any street or other
public place, nor call him by any offensive or derisive name. . .
."
The State courts had previously held the statute applicable only
to the use in a public place of words directly tending to cause a
breach of the peace by the persons to whom the remark was
addressed. The conviction of a street speaker who called a
policeman a "damned racketeer" and "damned Fascist" was upheld.
7. One other case should be noted, although it involved a
conviction for breach of peace in a private building, rather than
in a public place. In
Terminiello v. Chicago, 337 U. S.
1, the holding of the Court was on an abstract
proposition of law, unrelated to the facts in the case. A
conviction was overturned because the judge had instructed the jury
that "breach of the peace" included speech which "stirs the public
to anger, invites dispute, brings about a condition of unrest, or
creates a disturbance. . . ." The holding apparently was that
breach of the peace may not be defined in such broad terms,
certainly as to speech in a private hall.
Page 340 U. S. 282
The results in these multifarious cases have been expressed in
language looking in two directions. While the Court has emphasized
the importance of "free speech," it has recognized that "free
speech" is not, in itself, a touchstone. The Constitution is not
unmindful of other important interests, such as public order, if
interference with free expression of ideas is not found to be the
overbalancing consideration. More important than the phrasing of
the opinions are the questions on which the decisions appear to
have turned.
(1) What is the interest deemed to require the regulation of
speech? The State cannot, of course, forbid public proselyting or
religious argument merely because public officials disapprove the
speaker's views. It must act in patent good faith to maintain the
public peace, to assure the availability of the streets for their
primary purposes of passenger and vehicular traffic, or for equally
indispensable ends of modern community life.
(2) What is the method used to achieve such ends as a
consequence of which public speech is constrained or barred? A
licensing standard which gives an official authority to censor the
content of a speech differs
toto coelo from one limited by
its terms, or by nondiscriminatory practice, to considerations of
public safety and the like. Again, a sanction applied after the
event assures consideration of the particular circumstances of a
situation. The net of control must not be cast too broadly.
(3) What mode of speech is regulated? A sound truck may be found
to affect the public peace as normal speech does not. A man who is
calling names or using the kind of language which would reasonably
stir another to violence does not have the same claim to protection
as one whose speech is an appeal to reason.
(4) Where does the speaking which is regulated take place? Not
only the general classifications -- streets, parks, private
buildings -- are relevant. The location and
Page 340 U. S. 283
size of a park; its customary use for the recreational, esthetic
and contemplative needs of a community; the facilities, other than
a park or street corner, readily available in a community for
airing views, are all pertinent considerations in assessing the
limitations the Fourteenth Amendment puts on State power in a
particular situation. [
Footnote
1]
Page 340 U. S. 284
III
Due regard for the interests that were adjusted in the decisions
just canvassed affords guidance for deciding that cases before
us.
1. In the
Niemotko case, neither danger to the public
peace, nor consideration of time and convenience to the public,
appears to have entered into denial of the permit. Rumors that
there would be violence by those opposed to the meeting appeared
only after the Council made its decision, and in fact never
materialized. The city allowed other religious groups to use the
park. To allow expression of religious views by some and deny the
same privilege to others merely because they or their views are
unpopular, even deeply so, is a denial of equal protection of the
law forbidden by the Fourteenth Amendment.
2. The
Kunz case presents a very different situation.
We must be mindful of the enormous difficulties confronting those
charged with the task of enabling the polyglot millions in the City
of New York to live in peace and tolerance. Street-preaching in
Columbus Circle is done in a milieu quite different from preaching
on a New England village green. Again, religious polemic does not
touch the merely ratiocinative nature of man, and the ugly facts
disclosed by the record of this case show that Kunz was not
reluctant to offend the deepest religious feelings of frequenters
of Columbus Circle. Especially in such situations, this Court
should not substitute its abstract views for the informed judgment
of local authorities confirmed by local courts.
I cannot make too explicit my conviction that the City of New
York is not restrained by anything in the Constitution of the
United States from protecting completely the community's interests
in relation to its streets. But if a municipality conditions
holding street meetings on the granting of a permit by the police,
the basis which
Page 340 U. S. 285
guides licensing officials in granting or denying a permit must
not give them a free hand, or a hand effectively free when the
actualities of police administration are taken into account. It is
not for this Court to formulate with particularity the terms of a
permit system which would satisfy the Fourteenth Amendment. No
doubt, finding a want of such standards presupposes some conception
of what is necessary to meet the constitutional requirement we draw
from the Fourteenth Amendment. But many a decision of this Court
rests on some inarticulate major premise, and is none the worse for
it. A standard may be found inadequate without the necessity of
explicit delineation of the standards that would be adequate, just
as doggerel may be felt not to be poetry without the need of
writing an essay on what poetry is.
Administrative control over the right to speak must be based on
appropriate standards, whether the speaking be done indoors or
out-of-doors. The vice to be guarded against is arbitrary action by
officials. The fact that in a particular instance an action appears
not arbitrary does not save the validity of the authority under
which the action was taken.
In the present case, Kunz was not arrested for what he said on
the night of arrest, nor because at that time he was disturbing the
peace or interfering with traffic. He was arrested because he spoke
without a license, and the license was refused because the police
commissioner thought it likely, on the basis of past performance,
that Kunz would outrage the religious sensibilities of others. If
such had been the supportable finding on the basis of fair
standards in safeguarding peace in one of the most populous centers
of New York City, this Court would not be justified in upsetting
it. It would not be censorship in advance. But here, the standards
are defined neither by language nor by settled construction to
preclude discriminatory or arbitrary action by officials. The
ordinance,
Page 340 U. S. 286
as judicially construed, provides that anyone who, in the
judgment of the licensing officials, would "ridicule" or "denounce"
religion creates such a danger of public disturbance that he cannot
speak in any park or street in the City of New York. Such a
standard, considering the informal procedure under which it is
applied, too readily permits censorship of religion by the
licensing authorities.
Cantwell v. Connecticut,
310 U. S. 296. The
situation here disclosed is not, to reiterate, beyond control on
the basis of regulation appropriately directed to the evil.
[
Footnote 2]
Page 340 U. S. 287
3. Feiner was convicted under New York Penal Law, § 722, which
provides:
"Any person who with intent to provoke a breach of the peace, or
whereby a breach of the peace may be occasioned, commits any of the
following acts shall be deemed to have committed the offense of
disorderly conduct:"
"2. Acts in such a manner as to annoy, disturb, interfere with,
obstruct, or be offensive to others; . . . ."
A State court cannot, of course, preclude review of due process
questions merely by phrasing its opinion in terms of an ultimate
standard which in itself satisfies due process.
Watts v.
Indiana, 338 U. S. 49,
338 U. S. 50;
Baumgartner v. United States, 322 U.
S. 665,
322 U. S.
670-671;
Norris v. Alabama, 294 U.
S. 587,
294 U. S.
589-590;
compare Appleby v. New York,
271 U. S. 364,
271 U. S.
379-380. But this Court should not reexamine
determinations of the State courts on "those matters which are
usually termed issues of fact."
Watts v. Indiana, supra,
at
338 U. S. 50.
And it should not overturn a fair appraisal of facts made by State
courts in the light of their knowledge of local conditions.
Here, Feiner forced pedestrians to walk in the street by
collecting a crowd on the public sidewalk, he attracted additional
attention by using sound amplifiers, he indulged in name-calling,
he told part of his audience that it should rise up in arms. In the
crowd of 75 to 80 persons, there was angry muttering and pushing.
Under these circumstances, and in order to prevent a disturbance of
the peace, an officer asked Feiner
Page 340 U. S. 288
to stop speaking. When he had twice ignored the request, Feiner
was arrested. The trial judge concluded that "the officers were
fully justified in feeling that a situation was developing which
could very, very easily result in a serious disorder." His view was
sustained by an intermediate appellate court and by a unanimous
decision of the New York Court of Appeals. 300 N.Y. 391, 91 N.E.2d
316. The estimate of a particular local situation thus comes here
with the momentum of the weightiest judicial authority of New
York.
This Court has often emphasized that, in the exercise of our
authority over state court decisions, the Due Process clause must
not be construed in an abstract and doctrinaire way by disregarding
local conditions. In considering the degree of respect to be given
findings by the highest court of a State in cases involving the Due
Process Clause, the course of decisions by that court should be
taken into account. Particularly within the area of due process
colloquially called "civil liberties," it is important whether such
a course of decisions reflects a cavalier attitude toward civil
liberties or real regard for them. Only unfamiliarity with its
decisions and the outlook of its judges could generate a notion
that the Court of Appeals of New York is inhospitable to claims of
civil liberties or is wanting in respect for this Court's decisions
in support of them. It is pertinent, therefore, to note that all
members of the New York Court accepted the finding that Feiner was
stopped not because the listeners or police officers disagreed with
his views, but because these officers were honestly concerned with
preventing a breach of the peace. This unanimity is all the more
persuasive since three members of the Court had dissented, only
three months earlier, in favor of Kunz, a man whose vituperative
utterances must have been highly offensive to them.
As was said in
Hague v. CIO, supra, uncontrolled
official suppression of the speaker "cannot be made a
substitute
Page 340 U. S. 289
for the duty to maintain order." 307 U.S. at
307 U. S. 516.
Where conduct is within the allowable limits of free speech, the
police are peace officers for the speaker as well as for his
hearers. But the power effectively to preserve order cannot be
displaced by giving a speaker complete immunity. Here, there were
two police officers present for 20 minutes. They interfered only
when they apprehended imminence of violence. It is not a
constitutional principle that, in acting to preserve order, the
police must proceed against the crowd, whatever its size and
temper, and not against the speaker.
It is true that breach of peace statutes, like most tools of
government, may be misused. Enforcement of these statutes calls for
public tolerance and intelligent police administration. These, in
the long run, must give substance to whatever this Court may say
about free speech. But the possibility of misuse is not alone a
sufficient reason to deny New York the power here asserted or so
limit it by constitutional construction as to deny its practical
exercise.
[
Footnote 1]
In
M'Ara v. Magistrates of Edinburgh, 1913 S.C. 1059, a
street orator who was arrested for speaking without a license in
the streets of Edinburgh, contrary to the Magistrates'
proclamation, challenged the arrest. The Court of Session affirmed
a holding that Magistrates had no authority to issue the
proclamation, because the Act of 1606 granting them authority was
in desuetude. However, in his judgment, Lord Dunedin, one of the
most trenchant minds in modern Anglo-American judicial history,
dealt with the argument that there is an absolute right to speak in
public places. Although he was applying Scots law, now a written
constitution, Lord Dunedin's remarks are apposite here:
"Now the right of free speech undoubtedly exists, and the right
of free speech is to promulgate your opinions by speech so long as
you do not utter what is treasonable or libelous, or make yourself
obnoxious to the statutes that deal with blasphemy and obscenity.
But the right of free speech is a perfectly separate thing from the
question of the place where that right is to be exercised. You may
say what you like provided it is not obnoxious in the ways I have
indicated, but that does not mean that you may say it
anywhere."
"I am not going to deal with what may be the case in open spaces
or public places. It seems to me that no general pronouncement upon
that subject could be made, because, although, for convenience
sake, one often speaks of open spaces or of public places, the
truth is that open spaces and public places differ very much in
their character, and before you could say whether a certain thing
could be done in a certain place, you would have to know the
history of the particular place. For example, there may be certain
places which are dedicated to certain uses, . . . and things that
otherwise were lawful might be restrained if they interfered with
the purposes of that dedication. Each of those cases must be dealt
with when it arises. Here, we are dealing with a street proper,
because this place at the Mound is just one of the streets of the
city. It is a thoroughfare, although probably not a very much used
thoroughfare at that particular corner. In such a place, there is
not the slightest right in anyone to hold a meeting as such. . .
."
Id. at 1073-1074.
[
Footnote 2]
This is the second time that the ordinance which gave rise to
Junz's conviction has been before the Court. That fact is relevant
however only for the purpose of appreciating that the context in
which and the circumstances under which the Court considered the
ordinance the first time are quite different from the conditions
underlying the present appeal. The first time, the Court had to
consider the ordinance was on an appeal from
People v.
Smith, 263 N.Y. 255, 188 N.E. 745. In that case, the New York
Court of Appeals sustained a conviction for expounding atheism in
the street without a permit. The appeal to this Court was based
solely on the argument that regulation of speakers on religion
without regulating other speakers was an unreasonable
classification. Responding to this issue, the Court summarily
dismissed the appeal, 292 U.S. 606, citing three cases:
Patsone
v. Pennsylvania, 232 U. S. 138,
232 U. S. 144;
Silver v. Silver, 280 U. S. 117,
280 U. S. 123;
and
Sproles v. Binford, 286 U. S. 374,
286 U. S. 396.
All three concern the problem of reasonable classification, and in
no wise bear on the issue now before us. The difference in the
issues between the
Smith case and the
Kunz case
is strikingly manifested by the fact that the conviction of Smith
was affirmed by a unanimous Court of Appeals of New York, whereas,
in the present case, the conviction was affirmed by the narrowest
division in that court.
It must also be borne in mind that the
Smith case was
disposed of in 1934, before the series of decisions beginning with
Lovell v. Griffin, 303 U. S. 444,
allowing much less scope to local officials in the control of
public utterances than had theretofore been taken for granted.
Compare the language of
Davis v. Massachusetts,
167 U. S. 43, as
well as the atmosphere which it generated. So far as the special
circumstances relating to the City of New York are concerned, it is
pertinent to note that all three dissenting judges below are
residents of New York City, whereas not one of the four
constituting the majority is a denizen of that City. The three New
York City dissenting judges are presumably as alive to the need for
securing peace among the various racial and religious groups in New
York, and to the opportunity of achieving it within the
constitutional limits, as one who has only a visitor's acquaintance
with the tolerant and genial communal life of New York City.