Parties: Kunz v. New York
Date: 1951-01-15
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Paragraph: 12 - 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.
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Paragraph: 21 - 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
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Paragraph: 50 - 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.
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Paragraph: 17 - 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 his constitutional rights, then New York can neither restrain nor punish him. But I doubt that the Court's assumption will survive analysis.
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Phrase match: the right of citizens to speak
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Paragraph: 28 - 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?
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Paragraph: 4 - 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.
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Paragraph: 5 - In Saia v. People of State of New York, 1948, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, we reaffirmed the invalidity of such prior restraints upon the right to speak: N35* '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.'
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Paragraph: 5 - we reaffirmed the invalidity of such prior restraints upon the right to speak: N38* '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.'
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Paragraph: 6 - 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.
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Paragraph: 12 - 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.
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Phrase match: the right to speak, even temperately
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Paragraph: 17 - 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 N39* N40* 'an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets'.
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Paragraph: 24 - If New York has benefit of the rule as Mr. Justice Holmes announced it, Schenck v. United States, supra, 249 U.S. at page 52, 39 S.Ct. at page 249, 63 L.Ed. 470, it would mean that it could punish or prevent speech if N41* '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's words, in the environment of the streets, have and will result in that, unless a police escort attends to awe the hearers into submission.
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Paragraph: 25 - 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.
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Paragraph: 26 - 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.
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Paragraph: 48 - 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. 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 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.
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Paragraph: 6 - 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 v. State of Minnesota, 1931, 283 U.S. 697, 715, 51 S.Ct. 625, 631, 75 L.Ed. 1357. 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.
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Paragraph: 42 - N21* Of course, as to the press, there are the best of reasons against any licensing or prior restraint. Decisions such as Near v. State of 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 must be proportioned to their impact upon other community interests.
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Paragraph: 49 - But if the Court conceives, as Feiner indicates, that upon uttering insulting, provocative or inciting words the policeman on the best 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.
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Paragraph: 36 - 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.
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Paragraph: 55 - 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.
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Paragraph: 17 - 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.
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Paragraph: 5 - N12* '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.'
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