PUBLIC SPEECH: THE TIME, PLACE, AND MANNER RULE
Justice Oliver Holmes writing in 1907 clarified that the primary purpose of the First Amendment was “to prevent all such previous restraints upon publications as had been practiced by other governments”. Restrictions imposed upon the time, place, or manner of public speech or protest through municipal ordinances is required under the guidelines provided in Ward v. Rock Against Racism, 491 U.S. 781 (1989) to be each of:
a) Content neutral;
b) Narrowly tailored;
c) Serve a significant governmental interest, and;
d) Provide ample means of alternative communication.
Municipal codes may only effect prior restraint upon acts of speech or protest that will “surely result in direct, immediate, and irreparable damage to our Nation and its people” (New York Times Co. v. United States, 403 U.S. 713 (1971); Near v. Minnesota, 283 U.S. 697 (1931)). For a municipality to pre-restrain such speech it must through a valid act of public law:
a) Clearly define what is being made illegal;
b) Define the minimal context or amount necessary to effect a lawful violation;
c) Provide case law that is supportive to the ordinance’s contextual scope, and;
d) Bear the burden of both filing suit and proving wrongdoing within the context of New York Times Co. v. United States, supra.
The recent concept of “Free Speech Zones”, whereby only a single “zone” is ever reserved, often as a cordoned off area that is comprised (perhaps ironically) of merely a chain-link fence or a concrete barrier enclosure that is located external to and far from the primary event being attended (e.g., two-blocks over and in a back alleyway), is historically proffered only to civil libertarians, those with messages in opposition to either the mainstream or government’s agenda, Tea Party types, and the like. In its present format such Free Speech Zones are designed to be greatly restrictive to the competing views of expressive free-speech, serving to “chill” every individual’s immutable rights for individual education, thought, self-expression, and social awareness—it would be entirely another case if a myriad of similar zones were to be provided for within the primary event being attended, therein specifying zones for individual messages with indifference, similarly to how display booths are provided to trade shows, supplier events, merchandise swap-malls, automotive exhibitions, etc.
Setting content-based restrictions on public speech or protest through municipal ordinances that oblige general restrictiveness must pass strict scrutiny, while municipal ordinances that oblige specific restrictiveness must pass a highest level of scrutiny—with exception to exclusions realized under case law, such as: Snyder v. Phelps, 09-751 (2011); Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); et al. For instance, Snyder, supra, acknowledged that content-based and content-neutral restrictions are determinable within the speaker’s own message, as to whether or not consideration to the ordinance imposed restriction would have applied under identical circumstances although the speech had differed contextually, stating: “A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.” In Rosenberger, supra, the Court found that while governments may support mediums adherent to its own messages, such mediums however, may not impose exclusions against qualifying opposition (e.g., governmental subsidies may not be discriminatorily granted.) Further in Snyder, supra: “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).”
Ward v. Rock Against Racism, 491 U.S. 781, 796-797, 799 (1989): “The city’s regulation is also “narrowly tailored to serve a significant governmental interest.” Community for Creative Non-Violence, 468 U.S. at 468 U. S. 293. Despite respondent’s protestations to the contrary, it can no longer be doubted that government “ha a substantial interest in protecting its citizens from unwelcome noise.” [CITATIONS OMITTED] . . .
This “less-restrictive-alternative analysis . . . has never been a part of the inquiry into the validity of a time, place, and manner regulation.”
Regan v. Time, Inc., 468 U. S. 641, 468 U. S. 657 (1984) (opinion of WHITE, J.). Instead, our cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid “simply because there is some imaginable alternative that might be less burdensome on speech.” United States v. Albertini, 472 U. S. 675, 472 U. S. 689 (1985). . . .
Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. . . .
Rather, the requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” United States v. Albertini, supra, at 472 U. S. 689; see also Community for Creative Non-Violence, supra, at 468 U. S. 297.”
Texas v. Johnson, 491 U.S. 397, 401 (1989): “Acknowledging that this Court had not yet decided whether the Government may criminally sanction flag desecration in order to preserve the flag’s symbolic value, the Texas court nevertheless concluded that our decision in West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943), suggested that furthering this interest by curtailing speech was impermissible. “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms,” the court explained, “a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.”
755 S.W.2d at 97. Noting that the State had not shown that the flag was in “grave and immediate danger,” Barnette, supra, at 639, of being stripped of its symbolic value, the Texas court also decided that the flag’s special status was not endangered by Johnson’s conduct. 755 S.W.2d at 97.
As to the State’s goal of preventing breaches of the peace, the court concluded that the flag desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this particular case did not threaten such a reaction. “Serious offense' occurred,” the court admitted, ‘but there was no breach of peace, nor does the record reflect that the situation was potentially explosive. One cannot equate ‘serious offense’ with incitement to breach the peace.’”
Boos v. Barry, 485 U.S. 312, 320-322 (1988): “We most recently considered the definition of a content-neutral statute in Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). Drawing on prior decisions, we described “‘content-neutral’ speech restrictions as those that ‘are justified without reference to the content of the regulated speech.’ Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 771 (1976) (emphasis added).”
Id. at 475 U. S. 48. The regulation at issue in Renton described prohibited speech by reference to the type of movie theater involved, treating “theaters that specialize in adult films differently from other kinds of theaters.” Id. at 475 U. S. 47. But while the regulation in Renton applied only to a particular category of speech, its justification had nothing to do with that speech. The content of the films being shown inside the theaters was irrelevant, and was not the target of the regulation. Instead, the ordinance was aimed at the “secondary effects of such theaters in the surrounding community,” ibid. (emphasis in original), effects that are almost unique to theaters featuring sexually explicit films, i.e., prevention of crime, maintenance of property values, and protection of residential neighborhoods. In short, the ordinance in Renton did not aim at the suppression of free expression.
Respondents attempt to bring the display clause within Renton by arguing that here, too, the real concern is a secondary effect, namely, our international law obligation to shield diplomats from speech that offends their dignity. We think this misreads Renton. We spoke in that decision only of secondary effects of speech, referring to regulations that apply to a particular category of speech because the regulatory targets happen to be associated with that type of speech. So long as the justifications for regulation have nothing to do with content, i.e., the desire to suppress crime has nothing to do with the actual films being shown inside adult movie theaters, we concluded that the regulation was properly analyzed as content-neutral.
Regulations that focus on the direct impact of speech on its audience present a different situation. Listeners’ reactions to speech are not the type of “secondary effects” we referred to in Renton. To take an example factually close to Renton, if the ordinance there was justified by the city's desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate. The hypothetical regulation targets the direct impact of a particular category of speech, not a secondary feature that happens to be associated with that type of speech.
Applying these principles to the case at hand leads readily to the conclusion that the display clause is content-based. The clause is justified only by reference to the content of speech. Respondents and the United States do not point to the “secondary effects” of picket signs in front of embassies. They do not point to congestion, to interference with ingress or egress, to visual clutter, or to the need to protect the security of embassies. Rather, they rely on the need to protect the dignity of foreign diplomatic personnel by shielding them from speech that is critical of their governments. This justification focuses only on the content of the speech and the direct impact that speech has on its listeners. The emotive impact of speech on its audience is not a “secondary effect.” Because the display clause regulates speech due to its potential primary impact, we conclude it must be considered content-based.
Our cases indicate that as a content-based restriction on political speech in a public forum, § 22-1115 must be subjected to the most exacting scrutiny. Thus, we have required the State to show that the “regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. at 460 U. S. 45. [CITATIONS OMITTED]
We first consider whether the display clause serves a compelling governmental interest in protecting the dignity of foreign diplomatic personnel. Since the dignity of foreign officials will be affronted by signs critical of their governments or governmental policies, we are told, these foreign diplomats must be shielded from such insults in order to fulfill our country’s obligations under international law.
As a general matter, we have indicated that, in public debate, our own citizens must tolerate insulting, and even outrageous, speech in order to provide “adequate breathing space’ to the freedoms protected by the First Amendment.” Hustler Magazine, Inc. v. Falwell, ante at 485 U. S. 56. See also e.g., New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270. A “dignity” standard, like the “outrageousness” standard that we rejected in Hustler, is so inherently subjective that it would be inconsistent with “our longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience.” Hustler Magazine, supra, at 485 U. S. 55.”
United States v. Albertini, 472 U.S. 675, 685 (1985): “As this Court later observed in Greer, the decision in Flower must be viewed as an application of established First Amendment doctrine concerning expressive activity that takes place in a municipality’s open streets, sidewalks, and parks. 424 U.S. at 424 U. S. 835-836.”
Greer v. Spock, 424 U.S. 828, 835-836 (1976): “The decision in Flower was thus based upon the Court’s understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leafleteers – “any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue.”
That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality’s open streets, sidewalks, and parks for the reasons stated in the familiar words of Mr. Justice Roberts in Hague v. CIO, 307 U. S. 496, 307 U. S. 515-516:
“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. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” [CITATIONS OMITTED]”
Grayned v. City of Rockford, 408 U.S. 104, 114-119 (1972): “A clear and precise enactment may nevertheless be “overbroad” if, in its reach, it prohibits constitutionally protected conduct. Although appellant does not claim that, as applied to him, the anti-noise ordinance has punished protected expressive activity, he claims that the ordinance is overbroad on its face. Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant’s standing to raise an overbreadth challenge. The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Specifically, appellant contends that the Rockford ordinance unduly interferes with First and Fourteenth Amendment rights to picket on a public sidewalk near a school. We disagree.
“In considering the right of a municipality to control the use of public streets for the expression of religious [or political] 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 thought between citizens, and discussing public questions.”
“Hague v. CIO, 307 U. S. 496, 307 U. S. 515 (1939).”
Kunz v. New York, 340 U. S. 290, 340 U. S. 293 (1951). See Shuttlesworth v. Birmingham, 394 U. S. 147, 394 U. S. 152 (1969). The right to use a public place for expressive activity may be restricted only for weighty reasons.
Clearly, government has no power to restrict such activity because of its message. Our cases make equally clear, however, that reasonable “time, place and manner” regulations may be necessary to further significant governmental interests, and are permitted. For example, two parades cannot march on the same street simultaneously, and government may allow only one. Cox v. New Hampshire, 312 U. S. 569, 312 U. S. 576 (1941). A demonstration or parade on a large street during rush hour might put an intolerable burden on the essential flow of traffic, and for that reason could be prohibited. Cox v. Louisiana, 379 U.S. at 379 U. S. 554. If overamplified loudspeakers assault the citizenry, government may turn them down. Kovacs v. Cooper, 336 U. S. 77 (1949); Saia v. New York, 334 U. S. 558, 334 U. S. 562 (1948). Subject to such reasonable regulation, however, peaceful demonstrations in public places are protected by the First Amendment. Of course, where demonstrations turn violent, they lose their protected quality as expression under the First Amendment. The nature of a place, “the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.” Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U. S. 131 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that, in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State’s legitimate interest. Access to the “streets, sidewalks, parks, and other similar public places . . . for the purpose of exercising [First Amendment rights] cannot constitutionally be denied broadly. . . .”
Free expression “must not, in the guise of regulation, be abridged or denied.”
In light of these general principles, we do not think that Rockford's ordinance is an unconstitutional regulation of activity around a school. Our touchstone is Tinker v. Des Moines School District, 393 U. S. 503 (1969), in which we considered the question of how to accommodate First Amendment rights with the “special characteristics of the school environment.” Id. at 393 U. S. 506. Tinker held that the Des Moines School District could not punish students for wearing black armbands to school in protest of the Vietnam war. Recognizing that “wide exposure to . . . robust exchange of ideas” is an “important part of the educational process” and should be nurtured, id. at 393 U. S. 512, we concluded that free expression could not be barred from the school campus. We made clear that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression," id. at 393 U. S. 508, and that particular expressive activity could not be prohibited because of a “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” id. at 393 U. S. 509. But we nowhere suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for his unlimited expressive purposes. Expressive activity could certainly be restricted, but only if the forbidden conduct “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Id. at 393 U. S. 513. The wearing of armbands was protected in Tinker because the students “neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder.”
Id. at 393 U. S. 514. Compare Burnside v. Byars, 363 F.2d 744 (CA5 1966), and Butts v. Dallas Ind. School District, 436 F.2d 728 (CA5 1971), with Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (CA5 1966).
Just as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Tinker v. Des Moines School District, 393 U.S. at 393 U. S. 513.
We would be ignoring reality if we did not recognize that the public schools in a community are important institutions, and are often the focus of significant grievances. [Footnote 40] Without interfering with normal school activities, daytime picketing and handbilling on public grounds near a school can effectively publicize those grievances to pedestrians, school visitors, and deliverymen, as well as to teachers, administrators, and students. Some picketing to that end will be quiet and peaceful, and will in no way disturb the normal functioning of the school. For example, it would be highly unusual if the classic expressive gesture of the solitary picket disrupts anything related to the school, at least on a public sidewalk open to pedestrians. On the other hand, schools could hardly tolerate boisterous demonstrators who drown out classroom conversation, make studying impossible, block entrances, or incite children to leave the schoolhouse.
[Footnote 40] Cf. Thornhill v. Alabama, 310 U.S. at 310 U. S. 102. It goes without saying that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U.S. at 308 U. S. 163.”
Flower v. United States, 407 U.S. 197, 198-199 (1972): “The street is an important traffic artery used freely by buses, taxi cabs and other public transportation facilities, as well as by private vehicles, and its sidewalks are used extensively at all hours of the day by civilians, as well as by military personnel. Fort Sam Houston was an open post; the street, New Braunfels Avenue, was a completely open street.”
452 F.2d at 90. Under such circumstances, the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue. The base commandant can no more order petitioner off this public street because he was distributing leaflets than could the city police order any leafleteer off any public street. Cf. Lovell v. City of Griffin, 303 U. S. 444 (1938); Schneider v. State, 308 U. S. 147 (1939). “treets are natural and proper places for the dissemination of information and opinion,” 308 U.S. at 308 U. S. 163.
“[O]ne who is rightfully on a street which the state has left open to the public carries with him there, as elsewhere, the constitutional right to express his views in an orderly fashion.” Jamison v. Texas, 318 U. S. 413, 318 U. S. 416 (1943).”
Martin v. City of Struthers, 319 U.S. 141, 145-149 (1943): “While door-to-door distributors of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes attests its major importance.
“Pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people.”
Schneider v. State, supra, 308 U. S. 164. Many of our most widely established religious organizations have used this method of disseminating their doctrines, and laboring groups have used it in recruiting their members. The federal government, in its current war bond selling campaign, encourages groups of citizens to distribute advertisements and circulars from house to house. Of, course, as every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door-to-door distribution of circulars is essential to the poorly financed causes of little people.
Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.
Traditionally, the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, while similar statutes of narrower scope are on the books of at least twelve states more. We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. The National Institute of Municipal Law Officers has proposed a form of regulation to its member cities which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributors of literature may lawfully call at a home where it belongs -- with the homeowner himself. A city can punish those who call at a home in defiance of the previously expressed will of the occupant and, in addition, can, by identification devices, control the abuse of the privilege by criminals posing as canvassers. In any case, the problem must be worked out by each community for itself with due respect for the constitutional rights of those desiring to distribute literature and those desiring to receive it, as well as those who choose to exclude such distributors from the home.”
Thornhill v. Alabama, 310 U.S. 88, 102, 105-106 (1940): “The Continental Congress, in its letter sent to the Inhabitants of Quebec (October 26, 1774), referred to the “five great rights,” and said:
“The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them whereby oppressive officers are ashamed or intimidated into more honourable and just modes of conducting affairs.” Journal of the Continental Congress, 1904 ed., vol. I, pp. 104, 108. . . .
“[The] streets are natural and proper places for the dissemination of information and opinion, and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U. S. 147, 308 U. S. 161, 308 U. S. 163; Hague v. CIO, 307 U. S. 496, 307 U. S. 515-516.”
Hague v. Committee for Industrial Organization, 307 U.S. 496-497, 515-516, 518 (1939): “3. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. Distinguishing Davis v. Massachusetts, 167 U. S. 43. P. 307 U. S. 515.
4. The ordinance here in question, which forbids public assembly in the streets or parks of the city without a permit from the Director of Safety, who may refuse such permit upon his mere opinion that such refusal will prevent “riots, disturbances or disorderly assemblage,” is void upon its face. P. 307 U. S. 516.
It does not make comfort or convenience in the use of the streets or parks the standard of official action, and can be made the instrument of arbitrary suppression of free expression of views on national affairs. Uncontrolled official suppression of the privilege of public assembly cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.
5. The question whether exemption from the searches and seizures proscribed by the Fourth Amendment is afforded by the privileges and immunities clause of the Fourteenth is not involved. P. 307 U. S. 517.
6. An ordinance absolutely prohibiting distribution of circulars, handbills, placards, etc., in any street or public place is void. Lovell v. Griffin, 303 U. S. 444. P. 307 U. S. 518. . . .
We have no occasion to determine whether, on the facts disclosed, the Davis case was rightly decided, but we cannot agree that it rules the instant case. 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. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. . . .
Paragraphs 2 and 3 enjoin interference with the distribution of circulars, handbills and placards. The decree attempts to formulate the conditions under which respondents and their sympathizers may distribute such literature free of interference. The ordinance absolutely prohibiting such distribution is void under our decision in Lovell v. Griffin, supra, and petitioners so concede. We think the decree goes too far. All respondents are entitled to is a decree declaring the ordinance void and enjoining the petitioners from enforcing it.
Paragraph 4 has to do with public meetings. Although the court below held the ordinance void, the decree enjoins the petitioners as to the manner in which they shall administer it. There is an initial command that the petitioners shall not place “any previous restraint” upon the respondents in respect of holding meetings, provided they apply for a permit as required by the ordinance. This is followed by an enumeration of the conditions under which a permit may be granted or denied. We think this is wrong. As the ordinance is void, the respondents are entitled to a decree so declaring and an injunction against its enforcement by the petitioners. They are free to hold meetings without a permit and without regard to the terms of the void ordinance. The courts cannot rewrite the ordinance, as the decree, in effect, does.
The bill should be dismissed as to all save the individual plaintiffs, and B, paragraphs 2, 3 and 4 of the decree should be modified as indicated. In other respects the decree should be affirmed.”
Lovell v. City of Griffin, 303 U.S. 444, 450-452 (1938): “Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. [CITATIONS OMITTED] It is also well settled that municipal ordinances adopted under state authority constitute state action, and are within the prohibition of the amendment. [CITATIONS OMITTED]
The ordinance, in its broad sweep, prohibits the distribution of “circulars, handbooks, advertising, or literature of any kind.” It manifestly applies to pamphlets, magazines and periodicals. The evidence against appellant was that she distributed a certain pamphlet and a magazine called the “Golden Age.” Whether, in actual administration, the ordinance is applied, as apparently it could be, to newspapers does not appear. The City Manager testified that “everyone applies to me for a license to distribute literature in this City. None of these people (including defendant) secured a permit from me to distribute literature in the City of Griffin.”
The ordinance is not limited to “literature” that is obscene or offensive to public morals or that advocates unlawful conduct. There is no suggestion that the pamphlet and magazine distributed in the instant case were of that character. The ordinance embraces “literature” in the widest sense.
The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation “either by hand or otherwise.” There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the City Manager.
We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his “Appeal for the Liberty of Unlicensed Printing.” And the liberty of the press became initially a right to publish “without a license what formerly could be published only with one.” [Footnote 1] While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. See [CITATIONS OMITTED] Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.
The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated. [CITATIONS OMITTED] The ordinance cannot be saved because it relates to distribution, and not to publication.
“Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.” Ex parte Jackson, 96 U. S. 727, 96 U. S. 733. The license tax in Grosjean v. American Press Co., supra, was held invalid because of its direct tendency to restrict circulation.
As the ordinance is void on its face, it was not necessary for appellant to seek a permit under it.
[Footnote 1] See Wickwar, “The Struggle for the Freedom of the Press,” p. 15.”
Near v. Minnesota, 283 U.S. 697, 719-723 (1931): “Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy consistent with constitutional privilege.
In attempted justification of the statute, it is said that it deals not with publication per se, but with the “business” of publishing defamation. If, however, the publisher has a constitutional right to publish, without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied that he may publish subsequent editions for the same purpose. He does not lose his right by exercising it. If his right exists, it may be exercised in publishing nine editions, as in this case, as well as in one edition. If previous restraint is permissible, it may be imposed at once; indeed, the wrong may be as serious in one publication as in several. Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint. Similarly, it does not matter that the newspaper or periodical is found to be “largely” or “chiefly” devoted to the publication of such derelictions. If the publisher has a right, without previous restraint, to publish them, his right cannot be deemed to be dependent upon his publishing something else, more or less, with the matter to which objection is made.
Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. With the multiplying provisions of penal codes, and of municipal charters and ordinances carrying penal sanctions, the conduct of public officers is very largely within the purview of criminal statutes. The freedom of the press from previous restraint has never been regarded as limited to such animadversions as lay outside the range of penal enactments. Historically, there is no such limitation; it is inconsistent with the reason which underlies the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be established.
The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is constitutionally valid, it would be equally permissible for the legislature to provide that at any time the publisher of any newspaper could be brought before a court, or even an administrative officer (as the constitutional protection may not be regarded as resting on mere procedural details) and required to produce proof of the truth of his publication, or of what he intended to publish, and of his motives, or stand enjoined. If this can be done, the legislature may provide machinery for determining in the complete exercise of its discretion what are justifiable ends, and restrain publication accordingly. And it would be but a step to a complete system of censorship. The recognition of authority to impose previous restraint upon publication in order to protect the community against the circulation of charges of misconduct, and especially of official misconduct, necessarily would carry with it the admission of the authority of the censor against which the constitutional barrier was erected. The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this Court has said, on proof of truth. Patterson v. Colorado, supra.
Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends to disturb the public peace and to provoke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication.
“To prohibit the intent to excite those unfavorable sentiments against those who administer the Government is equivalent to a prohibition of the actual excitement of them, and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect, which, again, is equivalent to a protection of those who administer the Government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it by free animadversions on their characters and conduct.”
There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well understood tendency did not alter the determination to protect the press against censorship and restraint upon publication. As was said in New Yorker Staats-Zeitung v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 72:
“If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited.”
The danger of violent reactions becomes greater with effective organization of defiant groups resenting exposure, and if this consideration warranted legislative interference with the initial freedom of publication, the constitutional protection would be reduced to a mere form of words.
For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication.”
