Robert H. Jackson

“ 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. ”

“ There held to be 'insulting or 'fighting' words' were calling one a 'God damned racketeer' and a 'damned 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. ”

“ 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. ”

“ 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? ”

“ 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. ”

“ 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. ”

“ 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's 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. ”

“ 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. ”

“ 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. ”

“ 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.
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. ”

“ 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.
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 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. ”

“ 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 applied, prohibited Kunz, [1] even in street meetings, from preaching his own religion or making any temperate criticism or refutation of other religions ”

“ 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. ”

“ 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. ”

“ 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. ”

“ It may be justified by the overwhelming community 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. ”

“ 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? ”

“ 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. ”

“ We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.'↑ 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? ”

“ 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. ”

“ It informs the police of the time and place one intends to speak, which allows 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. ”