The use of streets parade and procession.pdf

Media

Part of The Local Government Review

extracted text: U. S. Supreme Court Decision - USE OF STREETS PARADE AND PROCESSION Willis Cox Walter Chaplinsky, John Ko'"ides, et al., appellants, v. State of New Hampshire, Vol. 85, No, 11, Law ed. Advance Opinions, p. 702, March 31, 1941; Hiighes ; C.J . 1. LICENSE; CONSTRUCTION; USE OF STREETS; MEANING OF "PARADE OR PROCESSION."-A group of fifteen to twenty persons marching along a sidewalk in single file carrying signs and placards constitutes a "parade or procession" upon a public ,street within the meaning of a state statute requiring persons so using the streets to obtain a special license therefor. · . 2. CONSTITUTIONAL LAW; RIGHT OF ASSEMBLY; FREEDOM OF SPEECH AND PRESS; USE OF STREETS; LICENSE STATUTE.-A statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abr,idgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse licenses, but are required to exercise their discretion free from improper or inappropriate considerations and from unfa·ir · die.crimination. 3. CONSTITUTIONAL LAW; POLICE POWER; USE OF HIGHWAYS.-Wh~rc a restriction of the use of highways is designed to promote the public convenience and the interest of all, it cannot be disregarded by the attempted exercise of some civil right, which in other cii·cumstances would be entitled to protection under the Constitution. 4. CONSTITUTIONAL LAW ; RIGHT OF ASSEMBLY; FREEDOM OF SPEECH AND PRESS; USE OF STREETS; P.age 336 AMOUNT OF LICENSE FEES.-The fixing of license fees for the use of public streets for parades or processions at amount::; ranging from a nominal sum of $300 is not an unconstitutional abridgment of the right of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the fee is intended merely to meet the expen;;;e of maintaining public ord.er incident . to the parade or procession, and is to be determined according to the size of such parade or process!on and the expen~e of policing it; there being no constitutional ground for requiring the authorities to fix a flat fee for all parades or processions regardless of size and expense. 5. CONSTITUTIONAL LAW; RELIGIOUS FREEDOM; USE OF STREETS; PARADE OR PROCESSION.-A statute requiring persons using the public streets for a parade or procession to procure special license therefor from the local authorities, does not constitute an unconstitutional interference with reUgious worship or the practice of religion, as applied to a group marching along a single file carrying signs and placards advertising their religious beliefs. Appeal by defendants from a judgment of the Supreme Court of the State of New Hampshire .affirming a judgment of conviction in the Superior Court upon an appeal from a conviction in the municipal cour't of Manchester in a prosecution for violation of a state statute prohibiting a parade or proces" sion upon a public street without a special license. Affirmed. Mr. Hayden Covington argued the cause for appellants. Mr. Frank R. Kenison, of Concord, New Hampshire, argued the cause for appellee. Mr. Chief Justice Hughes delivered the opinion of the Court: Appellants are five "Jehovah's Witnesses" who, with sixty-three other& of tie same persuasion, were convicted in THE LOCAL GOVERNMENT REVIEW the municipal court of Manchester, New Hampshire, for violation of a state statute proh_ ibiting a "parade or procession" upon a public street without a special license. Upon appeal, there was a trial de novo of these appellants before a jury in the Superior Court, the other defendants having agreed to abide by ithe final decision in that proceeding. Appellants were found guilty and the judgment of conviction was affirmed by the Supreme Court of the State. State v. Cox, 90 NH-, 16 A (2d) 508. By motions and exceptions. appellarnts raised the-questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the United States in that it deprived appellants of their rights of 'freed.om @f worship, freedom of speech and press, rend freedom of assembly, vested unreasonable and unlimited arbitrary and dliscriminatory powers in the licensing authority, and was vague and indefinite. These corntentions were overruled and the case comes here on appeal. The statutory prohibition is as follows (New Hampshire; P.L. chap. 145, sec. 2) : "No theatrical or dramatic repre<:entation shall be performed or exhibited, and no parade or procession upon any public streeit or way, and no open.air public meeting upon any ground abutting thereon, shall be permitted, unless a special license therefor shall first be obtained from the selectmen of the town, or from a licensing committee for cities hereinafter provided for." * * * The facts, which are conceded by the :.>.ppellants to be established by the evidence, are these: The sixty-eight defendants and twenty other persons met at a hall in the Ci:ty of Manchester on the {;Vening of Saturday, July 8, 1939, "for the purpose of engaging in an information march." The company was divided into four or five groups, each with about fifteen to twenty persons. Each group then proceeded to a differernt part of the business district of the city and there "would line up iP single-file formati_ on and then proceed JUNE, 1949 to march along the sidewalk, 'singlefile,' that is·, following one anothen." Each of the defendants carried a small staff with a sign reading "Religion is a Snare and a Racket" and on the reverse "Serve God and Christ the King." Some of the marchers carried placards bearing the E''.atement "Fascism or Freedom. Hear Judge Rutherford and 'Face the Facts." The marchers also, handed out printed leaflets announcing a meeting to be held at a later 1time in the ha!! from which they had started, where a talk on government would be ~iven to the public free of charge. Defendants_ did not apply for a permit and none waB issued. There was a dispute in the evidence as to the distance between the marchers. Defendants said that they were from fifteen 11:o twenty feet apart. The State insists that the evidence clearly showed that the "marchers were as close together as it was possible for them to walk." Appellants concede that this dispute is not material to the questions pr€sented. The recital of facts which prefaced the opinion of the state court thus summarizes the effect of the march : "Manchester had a population of over 75,000 in 1930, and there was testimony . that on Saturday night in an hour's time 26,020 persons o:>.ssed one of the interEe~t;ons where tl:e defendants marched. The marchers interfered with the normal sidewalk travel, but no ~echnical breach of the reace occurred. The march was ~ pre - arranged affair, and no permit for it was sought, although the defendants understood that under the staitute one was required." Appellants urge that each of the defendants was a minister ordained to preach the gospel in accordance with his belief and that the participation of these ministers in the march was for the purpose of disseminating information in the public irnterest and was one of their ways of worship. The sole charge against appellants was tl~at they were "taking part in a parade or procession" on public streets without a permit as the statute required. They were not prosecuted for Page 337 distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, or for mairntaining or expressing religious beliefs. Their right to do any one of these things apart from engaging in a "parade or procession" upon a public street is not here involved and the question of the validity of. a statute addressed to any other sort of con· duct than that complained of is not before us. There appears to be no ground for challenging the ruling of the state court that appellarnts were in fac-t engaged in a parade or procession upon the public streets. As the state court observed: "It was a march in formation, and its 2dvertising and informatory purpose did not make it otherwise . . . It is immaterial that its tactics were few and simple. It is enough that it pro· ceeded in an ordered and close file as a collective body of persons on the city streeits.'' Civil liberties as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of. ithe people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimaitely depend. The control of travel on the streets of cities is the most familiar i!Justration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it can· not be disregarded by the attempted exercise of some civil right which in other circumstances would be enti1tled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious du;ty to disobey the municipal command or sought by that means to -Oirect public attention to an announce· ment of his opinions. As regulation Page 338 of the use of. the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarruntedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated wi1 th resort to public ]Jlaces-. Lovell v. Griffin, 303 U.S. 44, 451, 82 L ed 949, 953, 58 S Ct. 666; Hague v. Committee for Industrial Organization, 307 US 496, 515, 516, 83 L ed 1423, 1436, 1437, 59 S Ct. 954. Schneider v. Irvington, -308 US 147, 160, 84 L. ed 155, 164, 60 S Ct 146; Cantwell v. Connecticut, 310 US 296, 306, 84 L ed 1213, 1219, 1220, 60 S Ct 900, 128 !A.LR 1352. In the instant case, we are aided by the opinion of the Supreme Court Gf the State which construed the statute and defined the limitations of ithe authority conferred for the granting of licenses for parades and processions. The court observed that if. the clause of the Act requiring a license "for all open-air public meetings upon land contiguous to a highway" was invalid, that invalidity did not nullify the Act in its application to the other situations described. Recognizing the importance of the civil liberties invoked by appellants, the cou11t thought it sig~ificant that the statute prescribed "no measures for controlling or-suppressing the publication. on the highways of facts and opinions, ei1 ther by speech or by writ.ing ;" that communication "by the distribution of literature or by the display of ·placards and signs" was in no respect regulated by the sitac tute; that the regulation with respect to parades and processions was applicable only "to organized formations of persons using rrhe highways;" and that "the defendants, separately, or collectively in groups not cons.tituting a parade or process-ion,' were "under no conte1mplation of the Act." In 1this light, the court thought that interfer~nce with liberty of. speech and wri1 ting seemed slight; that the distribution of pamphlets and folders by the groups THE LOCAL GOVERNMENT REVIEW "traveling in unorganized fashion" would have had as large a circulation, nnd thait "signs carried by members of the groups not in marching form· ation would have been as conspicuous, as published by them while in parade or procession." · It was with this view of the limited objectives of the statuite that the state court considered and -defined the duty of the licensing authority and the rights of the appellants fo a license ior t~eir parade, with regard only to considerations of time, place and manner so as to conserve the public convenience. The ·obvious adva111tage of requiring application for a permit was 11oted as giving the public authorities notice in advance so .as to, afford opportunity for proper policing. And the court further observed thait, in fixing time and place, the license served "to prevent confusion by overlapping ·pa· rades or processions, to secure convenient use of the streets by other tra· velers, and fo minimize the risk of disorder." But the court held that the licensing board was not ·vested with arbitrary power or an· unfettered: dis· cretion; thait its discretion must be ex('rcised with "uniformity of method of treatment upon the facts of each ap· plication, free from improper or in.:>ppropriate considerations and from unfair discrimination;" ithat a "syste· matic, consistent and just order of treatment, with reference to the convenience of public use of the highways, is the staitutory mandate." The defendants, said the court, "had a right, 1:mder the act, to a license to march when, where and as they did, if after a required investigation i1 t was found that the convenience of the public in the use of the streets would not ther~by be unduly disturbed, upon such condition or changes in time, place and man· ner as would avoid disturbance." If a municipality has authority to control the use of its public streets for parades or processions, as it undoubted_ ly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper use JUNE, 1949 of the streets. We find it impossible to say that. the limited authority conferred ·by the licensing provisions of the statute in question as thus construed by the state court co111t.ravened ::i.ny constitutional right. There remains 1the question of license fees which, as the court said, had a permissible range from $300 to a nominal amount. 'fhe court construed the Act as requiring "a reasonable fixing of the amount of the fee." "The charge," said the court, "for a circus µarade or a celebration procession of lengith, each drawing crowds of observers, .would take into account the greater public expense of policing the spectacle, compared with the slight ex· pense of a less e~pensive and attractive parade or procession, to which rt:he charge would be adjusted." The fee was held to be "not a revenue tax, but one to meet the expense incident to the administraition of the Act and te the maintenance of public order in the matter licensed." There is nothing contrary to the Constitution in 1the charge of a fee limited to the purpose stated. The suggestion that a flait fee should have been charged fails to take account of the difficulty of framing a fair schedule to meet all circumstances, and we perceive no consti1tutional ground for denying to .local govern· ments that flex.ibility of adjustment of fees which in .the light of varying conditions would tend to ·conserve rather rthan impair the liberty sought. There is no evidence that the statute has been administered otherwise than ·in the fair and non-discriminatory manner which the state court has con· strued it to require. The decisions upon which appellants rely are not applicable. In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, supra, the ordinance prohibited the" distribution of. literaiture of any kind at any time, at any place, and in any manner without a permit from the city manager, thus striking at the very foundation of the freedom of the press by subjecting it to license and censorship. In Hague, v. Com(Continued on page 345) Page 339 Use of Streets . .. (Continued from pa.ye 339) mittee for Industrial Organizaition, 307 US 496, 83 L ed 1423, 59 S Ct 954, su.pra, the ordinance dealt with the exercise of the right of assembly for the purpose of communicating views; it d'id not make comforit or convenience in· the use of streets the standard of c;fficial action but enabled the local of· ficial absolutely to refuse a permit on his mere opinion · thait such refusal would prevent "riots, disturbances or disord.erly assemblage." The ordinance thus created, as the record disclosed, 2.n instrument of arbitrary suppression of. opinions on ·public questions. The court said that "unconi'.rolled official suppression of the privilege cannot be made a substitute for ·the duty to maintain order in connection with t.he ex· E:rcise of the right." In Schneider v. In ington, supra (308 US p, 163, 84 L ed 165, 60 S Ct 146) the ordinance was directed at canvassing and ban11ed unlicensed communication of :rny views, or ;the advocacy of any cau .~e. from door to door, subdect only to the power of a police officer to determine as a censor what literature might be distributed and who might distribute it. ln Cantwell v. Connecticut, supra \310 US p.· 305, 84 L ed 1218, 60 S Ct 900, 128 ALR 1352') the state dealt with .the solicitation of funds for religious causes and authorized an off.icial to de· termine whether the cause was religious one and to refuse a .permit if he determined 1t was not, thus establishing a censorship of religion. Nor is any question of peaceful picketing here involved, as in Thornhiii v. Alabama 310 US 88, 84 L ed 1093, 60 S Ot 736, and Carlson v. California 310 US 106, 84 Led 1104, 60 S Ct 746. The statute, as the state court said, is net aime'd at any restraint of freedom uf speech, and there is no bas• is for an assumption 1that it would be applied so as to prevent peaceful picketing as described in the cases cited. The argument as to freedom of wor· ship is also beside the point. No interference with religious worship or the practice of religion . in any proper sense is shown, bu• t only the exercise of local control over the use of streets for pa· rndes and processions. The judgment of the Supreme Court of New Hampshire is affirmed. REVIEW OF MAGAZINE (Continiied frorn page 346) interest in the subject of local government. 10. The editor and associate editor as well as the authors of articles, speeches, and commitments are · recog.nized authorities in the employ of the Republic. of the Philippines. 11. This magazine may be used as re· ference material in Philippine Gov_ ernment both in the intermediate grades and in the high school. It will also be useful as reference in college. 12. It is free from error i.n English and from bia~ or prejudices. I recommend this magazine for inclusion in the approved library lisw, for general re?.ding. · (Sgd.) PEDRO M. BUENAVISTA Reviewer Bureau of Public Schools JUNE, 1949 The advertisements are properly and neatly located on the pages. They are selected for their educational and social values. It is hoped that the succeeding copies will not deteriorate in purpose and quality, that they will continue to be source of priceless information and knowledge on provin.cial, city and municipal governments and that they will be of service to those who administer them as well as to the residents of the communities so that ultimately good government and good citizenship will be promoted. Recommendation: This magazine is recommended for inclmio.n in the Approved Library Lists for the secondary school for general i ea ding-. (Sgd.) MONICO A. NOPRADA Bureau of Public Schools Page 345
Rights