1. A city ordinance which prescribes no appropriate standard for
administrative action and gives an administrative official
discretionary power to control in advance the right of citizens to
speak on religious matters on the city streets is invalid under the
First and Fourteenth Amendments. Pp.
340 U. S.
290-295.
2. In 1946, appellant obtained from the city Police Commissioner
a permit to hold religious meetings on the streets of New York City
during that year only. It was revoked on evidence that he had
ridiculed and denounced other religious beliefs, in violation of a
criminal provision of the ordinance under which the permit was
issued. The ordinance contained no provision for revocation of such
permits, and no standard to guide administrative actions in
granting or denying permits. In 1948, appellant's application for a
similar permit was denied, and he was convicted for holding a
religious meeting on the streets without a permit.
Held: The conviction is reversed. Pp.
340 U. S.
290-295.
300 N.Y. 273, 90 N.E.2d 455, reversed.
Appellant was convicted for holding a religious meeting on the
city streets without a permit in violation of Administrative Code
of N. Y. City, c. 18, § 435-7.0. The Court of Appeals of New York
affirmed. 300 N.Y. 273, 90 N.E.2d 455. On appeal to this Court,
reversed, p.
340 U.S.
295.
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
New York City has adopted an ordinance which makes it unlawful
to hold public worship meetings on the streets
Page 340 U. S. 291
without first obtaining a permit from the city police
commissioner. [
Footnote 1]
Appellant, Carl Jacob Kunz, was convicted and fined $10 for
violating this ordinance by holding a religious meeting without a
permit. The conviction was
Page 340 U. S. 292
affirmed by the Appellate Part of the Court of Special Sessions,
and by the New York Court of Appeals, three judges dissenting, 300
N.Y. 273, 90 N.E.2d 455 (1950). The case is here on appeal, it
having been urged that the ordinance is invalid under the
Fourteenth Amendment.
Appellant is an ordained Baptist minister who speaks under the
auspices of the "Outdoor Gospel Work," of which he is the director.
He has been preaching for about six years, and states that it is
his conviction and duty to "go out on the highways and byways and
preach the word of God." In 1946, he applied for and received a
permit under the ordinance in question, there being no question
that appellant comes within the classes of persons entitled to
receive permits under the ordinance. [
Footnote 2] This permit, like all others, was good only
for the calendar year in which issued. In November, 1946, his
permit was revoked after a hearing by the police commissioner. The
revocation was based on evidence that he had ridiculed and
denounced other religious beliefs in his meetings.
Although the penalties of the ordinance apply to anyone who
"ridicules and denounces other religious beliefs," the ordinance
does not specify this as a ground for permit revocation. Indeed,
there is no mention in the ordinance of any power of revocation.
However, appellant did not seek judicial or administrative review
of the revocation proceedings, and any question as to the propriety
of the revocation is not before us in this case. In any event, the
revocation affected appellant's rights to speak in 1946 only.
Appellant applied for another permit in 1947, and again in 1948,
but was notified each time that his application was "disapproved,"
with no reason for the disapproval being given. On September 11,
1948, appellant
Page 340 U. S. 293
was arrested for speaking at Columbus Circle in New York City
without a permit. It is from the conviction which resulted that
this appeal has been taken.
Appellant's conviction was thus based upon his failure to
possess a permit for 1948. We are here concerned only with the
propriety of the action of the police commissioner in refusing to
issue that permit. Disapproval of the 1948 permit application by
the police commissioner was justified by the New York courts on the
ground that a permit had previously been revoked "for good
reasons". [
Footnote 3] It is
noteworthy that there is no mention in the ordinance of reasons for
which such a permit application can be refused. This interpretation
allows the police commissioner, an administrative official, to
exercise discretion in denying subsequent permit applications on
the basis of his interpretation, at that time, of what is deemed to
be conduct condemned by the ordinance. We have here, then, an
ordinance which gives an administrative official discretionary
power to control in advance the right of citizens to speak on
religious matters on the streets of New York. As such, the
ordinance is clearly invalid as a prior restraint on the exercise
of First Amendment rights.
In considering the right of a municipality to control the use of
public streets for the expression of religious views, we start with
the words of Mr. Justice Roberts that
"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."
Hague v. CIO, 307 U. S. 496,
307 U. S. 515
(1939). Although this Court has recognized that a statute may be
enacted which prevents
Page 340 U. S. 294
serious interference with normal usage of streets and parks,
Cox v. New Hampshire, 312 U. S. 569
(1941), we have consistently condemned licensing systems which vest
in an administrative official discretion to grant or withhold a
permit upon broad criteria unrelated to proper regulation of public
places. In
Cantwell v. Connecticut, 310 U.
S. 296 (1940), this Court held invalid an ordinance
which required a license for soliciting money for religious causes.
Speaking for a unanimous Court, Mr. Justice Roberts said:
"But to condition the solicitation of aid for the perpetuation
of religious views or systems upon a license, the grant of which
rests in the exercise of a determination by state authority as to
what is a religious cause, is to lay a forbidden burden upon the
exercise of liberty protected by the Constitution."
310 U.S. at
310 U. S. 307.
To the same effect are
Lovell v. Griffin, 303 U.
S. 444 (1938);
Hague v. CIO, 307 U.
S. 496 (1939);
Largent v. Texas, 318 U.
S. 418 (1943). In
Saia v. New York,
334 U. S. 558
(1948), we reaffirmed the invalidity of such prior restraints upon
the right to speak:
"We hold that § 3 of this ordinance is unconstitutional on its
face, for it establishes a previous restraint on the 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."
334 U.S. at
334 U. S.
559-560.
The court below has mistakenly derived support for its
conclusion from the evidence produced at the trial that appellant's
religious meetings had, in the past, caused some disorder. There
are appropriate public remedies to protect the peace and order of
the community if appellant's speeches should result in disorder or
violence. "In the present case, we have no occasion to inquire as
to the permissible scope of subsequent punishment."
Near
Page 340 U. S. 295
v. Minnesota, 283 U. S. 697,
283 U. S. 715
(1931). We do not express any opinion on the propriety of punitive
remedies which the New York authorities may utilize. We are here
concerned with suppression -- not punishment. It is sufficient to
say that New York cannot vest restraining control over the right to
speak on religious subjects in an administrative official where
there are no appropriate standards to guide his action.
Reversed.
MR. JUSTICE BLACK concurs in the result.
[For opinion of MR. JUSTICE FRANKFURTER concurring in the
result,
see ante, p.
340 U. S.
273.]
[
Footnote 1]
Section 435-7.0 of chapter 18 of the Administrative Code of the
City of New York reads as follows:
"a. Public worship. -- It shall be unlawful for any person to be
concerned or instrumental in collecting or promoting any assemblage
of persons for public worship or exhortation, or to ridicule or
denounce any form of religious belief, service or reverence, or to
preach or expound atheism or agnosticism, or under any pretense
therefor, in any street. A clergyman or minister of any
denomination, however, or any person responsible to or regularly
associated with any church or incorporated missionary society, or
any lay-preacher or lay-reader may conduct religious services, or
any authorized representative of a duly incorporated organization
devoted to the advancement of the principles of atheism or
agnosticism may preach or expound such cause, in any public place
or places specified in a permit therefor which may be granted and
issued by the police commissioner. This section shall not be
construed to prevent any congregation of the Baptist denomination
from assembling in a proper place for the purpose of performing the
rites of baptism, according to the ceremonies of that church."
"b. Interference with street, services. -- It shall be unlawful
for any person to disturb, molest or interrupt any clergyman,
minister, missionary, lay-preacher or lay-reader who shall be
conducting religious services by authority of a permit issued
hereunder, or any minister or people who shall be performing the
rite of baptism as permitted herein, nor shall any person commit
any riot or disorder in any such assembly."
"c. Violations. -- Any person who shall violate any provision of
this section, upon conviction thereof, shall be punished by a fine
of not more than twenty-five dollars, or imprisonment for thirty
days, or both."
This ordinance was previously challenged in
People v.
Smith, 263 N.Y. 255, 188 N.E. 745,
appeal dismissed for
want of a substantial federal question, Smith v. New York, 292
U.S. 606 (1934). Smith, who had not applied for a permit under the
ordinance, argued that the regulation of religious speakers alone
constituted an unreasonable classification. None of the questions
involved in the instant appeal were presented in the previous
case.
[
Footnote 2]
The New York Court of Appeals has construed the ordinance to
require that all initial requests for permits by eligible
applicants must be granted. 300 N.Y. at 276, 90 N.E.2d at 456.
[
Footnote 3]
The New York Court of Appeals said:
"The commissioner had no reason to assume, and no promise was
made, that defendant wanted a new permit for any uses different
from the disorderly ones he had been guilty of before."
300 N.Y. at 278, 90 N.E.2d at 457.
MR. JUSTICE JACKSON, dissenting.
Essential freedoms are today threatened from without and within.
It may become difficult to preserve here what a large part of the
world has lost -- the right to speak, even temperately, on matters
vital to spirit and body. In such a setting, to blanket hateful and
hate-stirring attacks on races and faiths under the protections for
freedom of speech may be a noble innovation. On the other hand, it
may be a quixotic tilt at windmills which belittles great
principles of liberty. Only time can tell. But I incline to the
latter view, and cannot assent to the decision.
I
To know what we are doing, we must first locate the point at
which rights asserted by Kunz conflict with powers asserted by the
organized community. New York City has placed no limitation upon
any speech Kunz may choose to make on private property, but it does
require a permit to hold religious meetings in its streets. The
ordinance, neither by its terms nor as it has been
Page 340 U. S. 296
applied, prohibited Kunz, [
Footnote
2/1] even in street meetings, from preaching his own religion
or making any temperate criticism or refutation of other religions;
indeed, for the year 1946, he was given a general permit to do so.
His meetings, however, brought "a flood of complaints" to city
authorities that he was engaging in scurrilous attacks on Catholics
and Jews. On notice, he was given a hearing at which eighteen
complainants appeared. The Commissioner revoked his permit, and
applications for 1947 and 1948 were refused. For a time, he went on
holding meetings without a permit in Columbus Circle, where, in
September, 1948, he was arrested for violation of the ordinance. He
was convicted and fined ten dollars.
At these meetings, Kunz preached, among many other things of
like tenor, that "The Catholic Church makes merchandise out of
souls," that Catholicism is "a religion of the devil," and that the
Pope is "the anti-Christ." The Jews he denounced as
"Christ-killers," and he said of them, "All the garbage that didn't
believe in Christ should have been burnt in the incinerators. It's
a shame they all weren't."
These utterances, as one might expect, stirred strife and
threatened violence. Testifying in his own behalf, Kunz stated that
he "became acquainted with" one of the complaining witnesses, whom
he thought to be a Jew, "when he happened to sock one of my
Christian boys in the puss." Kunz himself complained to the
authorities, charging a woman interrupter with disorderly
Page 340 U. S. 297
conduct. He also testified that, when an officer is not present
at his meetings "I have trouble then," but "with an officer, no
trouble."
The contention which Kunz brings here and which this Court
sustains is that such speeches on the streets are within his
constitutional freedom, and therefore New York City has no power to
require a permit. He does not deny that this has been and will
continue to be his line of talk. [
Footnote 2/2] He does not claim that he should have been
granted a permit; he attacks the whole system of control of street
meetings, and says the Constitution gives him permission to speak,
and he needs none from the City.
II
The speeches which Kunz has made, and which he asserts he has a
right to make in the future, were properly held by the courts below
to be out of bounds for a street meeting, and not constitutionally
protected. This Court, without discussion, makes a contrary
assumption which is basic to its whole opinion. It says New York
has given "an administrative official discretionary power to
control in advance the right of citizens to speak on religious
matters on the streets." Again, it says that "prior restraint on
the exercise of First Amendment
rights" invalidates the
ordinance. (Emphasis supplied.) This seems to take the last step
first, assuming as a premise what is in question. Of course, if
Kunz is only exercising
Page 340 U. S. 298
his constitutional rights, then New York can neither restrain
nor punish him. But I doubt that the Court's assumption will
survive analysis.
This Court today initiates the doctrine that language such as
this, in the environment of the street meeting, is immune from
prior municipal control. We would have a very different question if
New York had presumed to say that Kunz could not speak his piece in
his own pulpit or hall. But it has undertaken to restrain him only
if he chooses to speak at street meetings. There is a world of
difference. The street preacher takes advantage of people's
presence on the streets to impose his message upon what, in a
sense, is a captive audience. A meeting on private property is made
up of an audience that has volunteered to listen. The question,
therefore, is not whether New York could, if it tried, silence
Kunz, but whether it must place its streets at his service to hurl
insults at the passerby.
What Mr. Justice Holmes said for a unanimous Court in
Schenck v. United States, 249 U. S.
47,
249 U. S. 52,
has become an axiom: "The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theatre and
causing a panic." This concept was applied in one of its few
unanimous decisions in recent years, when, through Mr. Justice
Murphy, the Court said:
"There are certain well defined and narrowly limited classes of
speech
the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and the insulting or
'fighting' words -- those which, by their very utterance inflict
injury or tend to incite an immediate breach of the peace. . .
."
(Emphasis supplied.)
Chaplinsky v. New Hampshire,
315 U. S. 568,
315 U. S.
571-572.
There, held to be "insulting or "fighting" words" were calling
one a "God damned racketeer" and a "damned
Page 340 U. S. 299
Fascist." Equally inciting and more clearly "fighting words,"
when thrown at Catholics and Jews who are rightfully on the streets
of New York, are statements that "The Pope is the anti-Christ" and
the Jews are "Christ-killers." These terse epithets come down to
our generation weighted with hatreds accumulated through centuries
of bloodshed. They are recognized words of art in the profession of
defamation. They are not the kind of insult that men bandy and
laugh off when the spirits are high and the flagons are low. They
are not in that class of epithets whose literal sting will be drawn
if the speaker smiles when he uses them. They are always, and in
every context, insults which do not spring from reason, and can be
answered by none. Their historical associations with violence are
well understood both by those who hurl and those who are struck by
these missiles. Jews, many of whose families perished in
extermination furnaces of Dachau and Auschwitz, are more than
tolerant if they pass off lightly the suggestion that unbelievers
in Christ should all have been burned. Of course, people might pass
this speaker by as a mental case, and so they might file out of a
theatre in good order at the cry of "fire." But, in both cases,
there is genuine likelihood that someone will get hurt.
This Court's prior decisions, as well as its decisions today,
will be searched in vain for clear standards by which it does, or
lower courts should, distinguish legitimate speaking from that
acknowledged to be outside of constitutional protection. One reason
for this absence is that this Court has had little experience in
deciding controversies over city control of street meetings. As
late as 1922, this Court declared,
". . . neither the Fourteenth Amendment nor any other provision
of the Constitution of the United States imposes upon the States
any restrictions about 'freedom of speech'. . . ."
Prudential Insurance Co. of America v. Cheek,
259 U. S. 530,
259 U. S. 543.
But with the
Page 340 U. S. 300
expanded authority recently assumed under the Due Process Clause
of the Fourteenth Amendment, we must, unless we are to review a
multitude of police court cases, declare standards by which they
may be decided below.
What evidences that a street speech is so provocative, insulting
or inciting as to be outside of constitutional immunity from
community interference? Is it determined by the actual reaction of
the hearers? Or is it a judicial appraisal of the inherent quality
of the language used? Or both?
I understand, though disagree with, the minority in the
Feiner case,
Feiner v. New York, 340 U.
S. 315, who, so far as I can see, would require no
standards, since they recognize no limits at all, considering that
some rioting is the price of free speech and that the city must
allow all speech and pay the price. But every juristic or
philosophic authority recognized in this field admits that there
are some speeches one is not free to make. [
Footnote 2/3] The problem, on which they disagree, is
how and where to draw the line.
It is peculiar that today's opinion makes no reference to the
"clear and present danger" test which, for years,
Page 340 U. S. 301
has played some part in free speech cases.
Cf. American
Communications Ass'n v. Douds, 339 U.
S. 382,
339 U. S. 393.
If New York has benefit of the rule as Mr. Justice Holmes announced
it,
Schenck v. United States, supra, at
249 U. S. 52, it
would mean that it could punish or prevent speech if
"the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring
about the substantive evils"
that the City has a right to prevent, among which I should
suppose we would list street fighting or riots. As I have pointed
out, the proof in this case leaves no doubt that Kunz' words, in
the environment of the streets, have and will result in that unless
a police escort attends to awe the hearers into submission.
A hostile reception of his subject certainly does not alone
destroy one's right to speak. A temperate and reasoned criticism of
Roman Catholicism or Judaism might, and probably would, cause some
resentment and protest. But, in a free society, all sects and
factions, as the price of their own freedom to preach their views,
must suffer that freedom in others. Tolerance of unwelcome,
unorthodox ideas or information is a constitutionally protected
policy not to be defeated by persons who would break up meetings
they do not relish.
But emergencies may arise on streets which would become
catastrophes if there was not immediate police action. The crowd
which should be tolerant may be prejudiced and angry or malicious.
If the situation threatens to get out of hand for the force
present, I think the police may require the speaker, even if within
his rights, to yield his right temporarily to the greater interest
of peace. Of course, the threat must be judged in good faith to be
real, immediate and serious. But silencing a speaker by authorities
as a measure of mob control is like dynamiting a house to stop the
spread of a conflagration. It may be justified by the overwhelming
community
Page 340 U. S. 302
interest that flames not be fed as compared with the little
interest to be served by continuing to feed them. But this kind of
disorder does not abridge the right to speak except for the
emergency, and, since the speaker was within his constitutional
right to speak, it could not be grounds for revoking or refusing
him a permit or convicting him of any offense because of his
utterance. If he resisted an officer's reasonable demand to cease,
he might incur penalties.
And so the matter eventually comes down to the question whether
the "words used are used in such circumstances and are of such a
nature" that we can say a reasonable man would anticipate the evil
result. In this case, the Court does not justify, excuse, or deny
the inciting and provocative character of the language, and it does
not, and, on this record, could not deny that, when Kunz speaks, he
poses a "clear and present" danger to peace and order. Why, then,
does New York have to put up with it?
It is well to be vigilant to protect the right of Kunz to speak,
but is he to be sole judge as to how far he will carry verbal
attacks in the public streets? Is official action the only source
of interference with religious freedom? Does the Jew, for example,
have the benefit of these freedoms when, lawfully going about, he
and his children are pointed out as "Christ-killers" to gatherings
on public property by a religious sectarian sponsored by a police
bodyguard?
We should weight the value of insulting speech against its
potentiality for harm. Is the Court, when declaring Kunz has the
right he asserts, serving the great end for which the First
Amendment stands?
The purpose of constitutional protection of speech is to foster
peaceful interchange of all manner of thoughts, information and
ideas. Its policy is rooted in faith in the force of reason. This
Court wisely has said,
"Resort
Page 340 U. S. 303
to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the
Constitution."
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S.
309-310.
"It has been well observed that such utterances are no essential
part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and
morality."
So said we all in
Chaplinsky v. New Hampshire, supra,
at
315 U. S. 572.
It would be interesting if the Court would expose its reasons for
thinking that Kunz' words are of more social value than those of
Chaplinsky.
III
It is worthwhile to note that the judicial technique by which
this Court strikes down the ordinance is very different from that
employed by the New York Court of Appeals, which sustained it. The
contrary results appear to be largely due to this
dissimilarity.
The Court of Appeals did not treat the ordinance as existing in
a vacuum, but considered all the facts of the controversy. While it
construed the ordinance "as
requiring the commissioner to
give an annual permit for street preaching
to anyone who,
like defendant, is a minister of religion," 300 N.Y. 273, 276, 90
N.E.2d 455, 456 (emphasis supplied), it held on the facts that
when, as here, the applicant "claims a constitutional right to
incite riots, and a constitutional right to the services of
policemen to quell those riots," then a permit need not be issued.
300 N.Y. at 278, 90 N.E.2d at 457.
This Court, however, refuses to take into consideration Kunz'
"past" conduct or that his meetings have "caused some disorder."
Nor does it deny that disorders will probably occur again. It comes
close to rendering an advisory opinion when it strikes down this
ordinance without evaluating the factual situation which has
caused
Page 340 U. S. 304
it to come under judicial scrutiny. If it were not for these
characteristics of the speeches by Kunz, this ordinance would not
be before us, yet it is said that we can hold it invalid without
taking into consideration either what he has done or what he
asserts a right to do.
It may happen that a statute will disclose by its very language
that it is impossible of construction in a manner consistent with
First Amendment rights. Such is the case where it aims to control
matters patently not a proper subject of the police power.
Lovell v. Griffin, 303 U. S. 444,
303 U. S. 451.
Cf. Hague v. CIO, 307 U. S. 496;
Thornhill v. Alabama, 310 U. S. 88;
Saia v. New York, 334 U. S. 558.
Usually, however, the only proper approach takes into consideration
both the facts of the case and the construction which the State has
placed on the challenged law.
Near v. Minnesota,
283 U. S. 697,
283 U. S. 708;
Cantwell v. Connecticut, supra, at
310 U. S. 303;
Kovacs v. Cooper, 336 U. S. 77;
Terminiello v. Chicago, 337 U. S. 1. And in
the absence of facts in the light of which the statute may be
construed, we have said the proper procedure is not to pass on
whether it conflicts with First Amendment rights.
United States
v. Petrillo, 332 U. S. 1. That
the approach will determine the result is indicated by comparison
of the
Saia case, in which an ordinance was held void on
its face, with the
Kovacs case, in which a similar
ordinance, when tested as construed and applied, was held valid.
The vital difference, as this case demonstrates, is that it is very
easy to read a statute to permit some hypothetical violation of
civil rights, but difficult to draft one which will not be subject
to the same infirmity.
This Court has not applied, and, I venture to predict, will not
apply, to federal statutes the standard that they are
unconstitutional if it is possible that they may be
unconstitutionally applied. We should begin consideration of this
case by deciding whether the opportunity to
Page 340 U. S. 305
repeat his vituperative street speeches is within Kunz'
constitutional rights, and here he must win on the strength of his
own right. [
Footnote 2/4]
IV
The question remains whether the Constitution prohibits a city
from control of its streets by a permit system which takes into
account dangers to public peace and order. I am persuaded that it
does not do so, provided, of course, that the city does not so
discriminate as to deny equal protection of the law or undertake a
censorship of utterances that are not so defamatory, insulting,
inciting, or provocative as to be reasonably likely to cause
disorder and violence.
The Court does not hold that New York has abused the permit
system by discrimination or actual censorship, nor does it deny the
abuses of Kunz' part. But neither, says the Court, matters, holding
that any prior restraint is bad, regardless of how fairly
administered or what abuses it seeks to prevent.
It strikes rather blindly at permit systems which indirectly may
affect First Amendment freedoms. Cities throughout the country have
adopted the permit requirement to control private activities on
public streets, and for other purposes. [
Footnote 2/5] The universality of this of regulation
Page 340 U. S. 306
demonstrates a need and indicates widespread opinion in the
profession that it is not necessarily incompatible with our
constitutional freedoms. Is everybody out of step but this
Court?
Until recently, this custom of municipalities was regarded by
this Court as consistent with the Constitution. It approved this
identical ordinance in
Smith v. New York, 292 U.S. 606.
[
Footnote 2/6] This decision is now
overruled. Although the ordinance was then attacked as a denial of
equal protection of the law for failure to prescribe a reasonable
classification, I cannot attribute to that decision as narrow an
interpretation as the Court. Would this Court sustain an ordinance
as providing a reasonable classification if the purpose of the
classification was void on its face?
In the
Chaplinsky case,
prevention, as well as
punishment of "limited classes of speech . . . , have never been
thought to raise any Constitutional problem." (Emphasis supplied.)
Mr. Justice Holmes pointed out in the
Schenk case that the
Constitution would not protect one from an injunction against
uttering words that lead to riot. In
Cox v. New Hampshire,
312 U. S. 569,
312 U. S.
577-578, Chief Justice Hughes, for a unanimous Court,
distinguished
Page 340 U. S. 307
the requirement of a license for a parade or procession from
other cases now relied on by this Court. He found requirement of a
permit there constitutional, and observed that such authority
"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."
Id., at
312 U. S. 574.
The concept of civil liberty without order is the contribution of
later-day jurists.
The Court, as authority for stripping New York City of control
of street meetings, resurrects
Saia v. New York, supra,
which I, like some who now rely on it, had supposed was given
decent burial by
Kovacs v. Cooper, supra. Must New York,
if it is to avoid chaos in its streets, resort to the sweeping
prohibitions sanctioned in
Kovacs, instead of the milder
restraints of this permit system? Compelling a choice between
allowing all meetings or no meetings is a dubious service to civil
liberties.
Of course, as to the press, there are the best of reasons
against any licensing or prior restraint. Decisions such as
Near v. Minnesota, supra, hold any licensing or prior
restraint of the press unconstitutional, and I heartily agree. But
precedents from that field cannot reasonably be transposed to the
street meeting field. The impact of publishing on public order has
no similarity with that of a street meeting. Publishing does not
make private use of public property. It reaches only those who
choose to read, and, in that way, is analogous to a meeting held in
a hall where those who come do so by choice. Written words are less
apt to incite or provoke to mass action than spoken words, speech
being the primitive and direct communication with the emotions. Few
are the riots caused by publication alone, few are the mobs that
have not had their immediate origin in harangue. The vulnerability
of various forms of communication to community control
Page 340 U. S. 308
must be proportioned to their impact upon other community
interests.
It is suggested that a permit for a street meeting could be
required if the ordinance would prescribe precise standards for its
grant or denial. This defect, if such it be, was just as apparent
when, in the
Smith case, this Court upheld the ordinance
as it is today. The change must be found in the Court, not in the
ordinance.
And what, in terms of its philosophy of decision, is this
change? It is to require more severe and exacting standards of
state and local statutes than of federal statutes. As this case
exemplifies, local acts are struck down not because, in practical
application, they have actually invaded anyone's protected
freedoms, but because they do not set up standards which would make
such invasion impossible. However, with federal statutes, we say
they must stand unless they require, or in application are shown
actually to have resulted in, an invasion of a protected freedom.
[
Footnote 2/7]
Of course, standards for administrative action are always
desirable, and the more exact, the better. But I do not see how
this Court can condemn municipal ordinances for not setting forth
comprehensive First Amendment standards. This Court never has
announced what those standards must be, it does not now say what
they are, and it is not clear that any majority could agree on
them. In no field are there more numerous individual opinions among
the Justices. The Court as an institution not infrequently
disagrees with its former self or relies on distinctions that are
not very substantial.
Compare Jones v. Opelika of 1942,
316 U. S. 584,
with Jones v. Opelika of 1943,
319 U.
S. 103,
Minersville School District v. Gobitis
of 1940;
310 U. S. 586,
with West Virginia State Board of Education v. Barnette of
1943,
319 U. S. 624;
Saia v. New
Page 340 U. S. 309
York of 1948,
supra, with Kovacs v. Cooper of
1949,
supra. It seems hypercritical to strike down local
laws on their faces for want of standards when we have no
standards. [
Footnote 2/8] And I do
not find it required by existing authority. I think that where
speech is outside of constitutional immunity, the local community
or the State is left a large measure of discretion as to the means
for dealing with it.
Page 340 U. S. 310
V
If the Court is deciding that the permit system for street
meetings is so unreasonable as to deny due process of law, it would
seem appropriate to point out respects in which it is unreasonable.
This I am unable to learn from this or any former decision. The
Court holds, however, that Kunz must not be required to get
permission; the City must sit by until some incident, perhaps a
sanguinary one, occurs, and then there are unspecified "appropriate
public remedies." We may assume reference is to the procedure of
the
Feiner case, which, with one-third of the Court
dissenting, is upheld. [
Footnote
2/9] This invites comparison
Page 340 U. S. 311
of the merits of the two methods both as to impact on civil
liberties and as to achieving the ends of public order.
City officials stopped the meetings of both Feiner and Kunz. The
process by which Feiner was stopped was the order of patrolmen, put
into immediate effect without hearing. Feiner may have believed
there would be no interference, but Kunz was duly warned by refusal
of a permit. He was advised of charges, given a hearing, confronted
by witnesses, and afforded a chance to deny the charges or to
confess them and offer to amend his ways. The decision of
revocation was made by a detached and responsible administrative
official, and Kunz could have had the decision reviewed in
court.
The purpose of the Court is to enable those who feel a call to
proselytize to do so by street meetings. The means is to set up a
private right to speak in the city streets without asking
permission. [
Footnote 2/10] Of
course, if Kunz may speak without a permit, so may anyone else. If
he may speak whenever and wherever he may elect, I know of no way
in which the City can silence the heckler, the interrupter, the
dissenter, the rivals with missionary fervor, who have an equal
right at the same time and place to lift their voices. And, of
course, if the City may not stop
Page 340 U. S. 312
Kunz from uttering insulting and "fighting" words, neither can
it stop his adversaries, and the discussion degenerates to a
name-calling contest without social value and, human nature being
what it is, to a fight, or perhaps a riot. The end of the Court's
method is chaos.
But if the Court conceives, as
Feiner indicates, that,
upon uttering insulting, provocative or inciting words, the
policeman on the beat may stop the meeting, then its assurance of
free speech in this decision is "a promise to the ear to be broken
to the hope" if the patrolman on the beat happens to have
prejudices of his own.
Turning then to the permit system as applied by the Court of
Appeals, whose construction binds us, we find that issuance the
first time is required. Denial is warranted only in such unusual
cases as where an applicant has had a permit which has been revoked
for cause and he asserts the right to continue the conduct which
was cause for revocation. If anything less than a reasonable
certainty of disorder was shown, denial of a permit would be
improper. The procedure by which that decision is reached commends
itself to the orderly mind -- complaints are filed, witnesses are
heard, opportunity to cross-examine is given, and decision is
reached by what we must assume to be an impartial and reasonable
administrative officer, and, if he denies the permit, the applicant
may carry his cause to the courts. He may thus have a civil test of
his rights without the personal humiliation of being arrested as
presenting a menace to public order. It seems to me that this
procedure better protects freedom of speech than to let everyone
speak without leave, but subject to surveillance and to being
ordered to stop in the discretion of the police.
It is obvious that a permit is a source of security and
protection for the civil liberties of the great number who are
entitled to receive them. It informs the police of the time and
place one intends to speak, which allows
Page 340 U. S. 313
necessary steps to insure him a place to speak where overzealous
police officers will not order everyone who stops to listen to move
on, and to have officers present to insure an orderly meeting.
Moreover, disorder is less likely, for the speaker knows that, if
he provokes disorder, his permit may be revoked, and the objector
may be told that he has a remedy by filing a complaint, and does
not need to take the law in his own hands. Kunz was not arrested in
1946, when his speeches caused serious objections, nor was he set
upon by the crowd. Instead, they did the orderly thing, and made
complaints which resulted in the revocation of his permit. This is
the method that the Court frustrates today.
Of course, emergencies may arise either with or without the
permit system. A speaker with a permit may go beyond bounds and
incite violence, or a mob may undertake to break up an authorized
and properly conducted meeting. In either case, the policeman on
the spot must make the judgment as to what measures will most
likely avoid violent disorders. But these emergencies seem less
likely to occur with the permit system than if every man and his
adversary take the law in their own hands.
The law of New York does not segregate, according to their
diverse nationalities, races, religions, or political associations,
the vast hordes of people living in its narrow confines. Every
individual in this frightening aggregation is legally free to live,
to labor, to travel, when and where he chooses. In streets and
public places, all races and nationalities and all sorts and
conditions of men walk, linger and mingle. Is it not reasonable
that the City protect the dignity of these persons against fanatics
who take possession of its streets to hurl into its crowds
defamatory epithets that hurt like rocks?
If any two subjects are intrinsically incendiary and divisive,
they are race and religion. Racial fears and hatreds have been at
the root of the most terrible riots
Page 340 U. S. 314
that have disgraced American civilization. They are ugly
possibilities that overhang every great American city. The
"consecrated hatreds of sect" account for more than a few of the
world's bloody disorders. These are the explosives which the Court
says Kunz may play with in the public streets, and the community
must not only tolerate, but aid him. I find no such doctrine in the
Constitution.
In this case, there is no evidence of a purpose to suppress
speech except to keep it in bounds that will not upset good order.
If there are abuses of censorship or discrimination in
administering the ordinance, as well there may be, they are not
proved in this case. This Court should be particularly sure of its
ground before it strikes down, in a time like this, the going,
practical system by which New York has sought to control its street
meeting problem.
Addressing himself to the subject "Authority and the
Individual," one of the keenest philosophers of our time
observes:
"The problem, like all those with which we are concerned, is one
of balance; too little liberty brings stagnation, and too much
brings chaos. [
Footnote
2/11]"
Perhaps it is the fever of our times that inclines the Court
today to favor chaos. My hope is that few will take advantage of
the license granted by today's decision. But life teaches on to
distinguish between hope and faith.
[
Footnote 2/1]
Kunz is within the classifications of persons to whom such
permits may issue. Hence, we have here no challenge based on its
exclusions. If an excluded person made appropriate challenge on
equal protection grounds, I should very much doubt if the ordinance
could be sustained.
See, however, Railway Express Agency v. New
York, 336 U. S. 106,
which sustains the power of New York City to classify printed
communications it will permit on its streets on a basis that seems
more remote from any traffic effect than a street meeting.
[
Footnote 2/2]
"Q. It is your religious conviction that this is the way you are
to practice your religion?"
"A. Yes. I feel this way, that the Holy Bible is the word of
God. And whether the Holy Bible, the word of God, ridicules or
denounces any man's religion, I am going to preach it. I feel I
have a perfect right."
If there were otherwise any doubt that Kunz proposes to resume
these attacks, it should be dispelled by the letters he has
addressed to members of this Court asserting his right to do so and
assailing, on religious grounds, judges who decided his case
below.
[
Footnote 2/3]
One of these latter is Prof. Meiklejohn, who would go so far as
to discard the "clear and present danger" formula, at least as a
restriction on political discussion, which he says
". . . stands on the record of the court as a peculiarly inept
and unsuccessful attempt to formulate an exception to the principle
of the freedom of speech."
Meiklejohn, Free Speech, And Its Relation to Self-Government, p.
50. But even he does not support unlimited speech. He says,
". . . No one can doubt that, in and well governed society, the
legislature has both the right and the duty to prohibit certain
forms of speech. Libelous assertions may be, and must be, forbidden
and punished. So too must slander. Words which incite men to crime
are themselves criminal, and must be dealt with as such. Sedition
and treason may be expressed by speech or writing. And, in those
cases, decisive repressive action by the government is imperative
for the sake of the general welfare. All these necessities that
speech be limited are recognized and provided for under the
Constitution. . . ."
Id. at 18.
[
Footnote 2/4]
Brandeis, J., concurring, in
Ashwander v. Tennessee Valley
Authority, 297 U. S. 288,
297 U. S.
347.
[
Footnote 2/5]
New York, for example, has found a permit system the practical
means of controlling meetings in its parks. This Court, as
presently constituted, only last Term dismissed an attack on the
park permit system "for want of a substantial federal question,"
JUSTICES BLACK and DOUGLAS dissenting.
Hass v. New York,
338 U.S. 803. New York also has used the requirement of a permit
for assemblages which mask their faces to suppress the Ku Klux Klan
without stopping harmless masquerade balls and the like. Penal Law,
§ 710. The permit system is used in many other situations where
conceivable civil liberties are involved.
[
Footnote 2/6]
The issue was drawn for them with clarity by Chief Judge Pound
in
People v. Smith, 263 N.Y. 255. 257, 188 N.E. 745. The
Court of Appeals unanimously said:
"'It is too well settled by judicial decisions in both the State
and Federal courts that a municipality may pass an ordinance making
it unlawful to hold public meetings upon the public streets without
a permit therefor to require discussion. . . .' This ordinance is
not aimed against free speech. It is directed towards the manner in
which the street may be used. . . . The passion, rancor and malice
sometimes aroused by sectarian religious controversies and attacks
on religion seem to justify especial supervision over those who
would conduct such meetings on the public streets."
And this Court held that holding presented no constitutional
question of substance.
[
Footnote 2/7]
United States v. Petrillo, supra.
[
Footnote 2/8]
It seems fair to contrast the precision which the Court imposes
on municipalities with the standards set forth in the recent Act
"relating to the policing of the building and grounds of the
Supreme Court of the United States." 63 Stat. 616. That makes it
unlawful to "make any harangue or oration, or utter loud,
threatening, or abusive language in the Supreme Court Building or
grounds." § 5. It forbids display of any "flag, banner, or device
designed or adapted to bring into public notice any party,
organization, or movement." § 6.
Compare with Thornhill v.
Alabama, 310 U. S. 88.
Moreover, it authorizes the Marshal to
"prescribe such regulations, approved by the Chief Justice of
the United States, as may be deemed necessary for the adequate
protection of the Supreme Court Building and grounds and of persons
and property therein, and for the maintenance of suitable order and
decorum within the Supreme Court Building and grounds."
§ 7. Violation of these provisions or regulations is an offense
punishable by fine and imprisonment.
Section 10 provides that, "In order to permit the observance of
authorized ceremonies" within the building or grounds, the Marshal
"may suspend for such occasions so much of the prohibitions,"
including those above,
"as may be necessary for the occasion, but only if responsible
officers shall have been appointed, and arrangements determined
which are adequate, in the judgment of the Marshal, for the
maintenance of suitable order and decorum in the proceedings, and
for the protection of the Supreme Court Building and grounds and of
persons and property therein."
Here is exalted artistry in declaring crime without definitive
and authorizing permits without standards for use of public
property for speaking. Of course, the statute would not be reported
by the Judiciary Committees without at least informal approval of
the Justices. The contrast between the standards set up for cities
and those for ourselves suggests that our theorizing may be
imposing burdens upon municipal authorities which are impossible,
or at least impractical, to comply with.
[
Footnote 2/9]
I join in
Feiner v. New York, post, p.
340 U. S. 315.
When in a colored neighborhood Feiner urged the colored people to
rise up in arms and fight, he was using words which may have been
"rhetorical," but it was the rhetoric of violence. Of course, we
cannot tell from a cold record whether the action taken was the
wisest way of dealing with the situation. But some latitude for
honest judgment must be left to the locality. It is a startling
proposition to me that serious public utterance which advises,
encourages, or incites to a crime may not be made a crime because
within constitutional protection. As Mr. Justice Holmes for a
unanimous Court in
Frohwerk v. United States, 249 U.
S. 204,
249 U. S. 206,
said:
". . . the First Amendment, while prohibiting legislation
against free speech as such, cannot have been, and obviously was
not, intended to give immunity for every possible use of language.
Robertson v. Baldwin, 165 U. S. 275,
165 U. S.
281. We venture to believe that neither Hamilton nor
Madison, nor any other competent person then or later, ever
supposed that to make criminal the counseling of a murder within
the jurisdiction of Congress would be an unconstitutional
interference with free speech."
However, the case of
Niemotko v. Maryland, 340 U.
S. 268, illustrates the danger of abuse of the permit
system which the Court should be alert to prevent. There is no
evidence that those applicants were, ever had been, or threatened
to be, disorderly or abusive in speech or manner, or that their
speaking would be likely to incite or provoke any disorder. The
denial of permission for the meeting was charged, and appears to
have been due, to applicants' religious belief that they should not
salute any flag, which they may not be compelled to do, and their
conscientious objections to bearing arms in war, which Congress has
accepted as a valid excuse from combat duty. In the courts of
Maryland, this denial, so based, was conclusive against the right
to speak. This was use of the permit system for censorship, and the
convictions cannot stand.
[
Footnote 2/10]
Do we so quickly forget that one of the chief reasons for
prohibiting use of "released time" of school students for religious
instruction was that the Constitution will not suffer tax-supported
property to be used to propagate religion?
Illinois ex rel.
McCollum v. Board of Education, 333 U.
S. 203. How can the Court now order use of tax-supported
property for the purpose? In other words, can the First Amendment
today mean a city cannot stop what yesterday it meant no city could
allow?
[
Footnote 2/11]
Russell, Authority and the Individual 25.