301 Mass. 584 | Mass. | 1938
Each defendant has been convicted and fined $5 for violation of c. 36, § 12, of the Revised Ordinances of the City of Worcester, which reads as follows: “No person shall distribute in or place upon any street or way, any placard, handbill, flyer, poster, advertisement or paper of any description. No person shall transport through the streets of the City any rubbish without first covering or fastening such rubbish so as to prevent the same from being blown or scattered about in the streets.”
In the recent case of Commonwealth v. Kimball, 299 Mass. 353, we had occasion to consider the validity of an ordinance of Fall River the main portion of which, exclusive of a proviso at the end, was substantially the same as the ordinance here involved. We there held that the ordinance, considered apart from the proviso, was valid. On page 357 we said, “The distribution of handbills or similar papers in streets tends to annoy travellers and abutters, to obstruct the streets, and to litter them with paper. It seems to us a valid exercise of the power to maintain the ‘internal police' of a city, to prohibit such distribution entirely.” Many cases were cited in support of that statement. Although there are cases to the contrary, we felt and we still feel that the cases cited represent the sounder view. Reference to the original papers in the Kimball case shows that the same contention was argued there that is urged here. That case is a precedent upon the issue here presented. Ordinarily we would regard such
Freedom of the press is a necessity in our political system. It must be sedulously guarded against subtle encroachments under the guise of specious pretexts. But like other constitutional rights it is subject to reasonable rules formulated to serve the public interest and to prevent abuse in the manner of the exercise of the right, so long as the right itself is neither denied nor impaired. This principle is fully recognized in recent decisions of the Supreme Court of the United States. Gitlow v. New York, 268 U. S. 652, 666, 667. Whitney v. California, 274 U. S. 357, 371. Stromberg v. California, 283 U. S. 359, 368. Near v. Minnesota, 283 U. S. 697, 707, 708. DeJonge v. Oregon, 299 U. S. 353, 364. See Commonwealth v. Blanding, 3 Pick. 304, 313; Commonwealth v. Libbey, 216 Mass. 356; Commonwealth v. Karvonen, 219 Mass. 30; Commonwealth v. Anderson, 272 Mass. 100, 106. “Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.” Chicago, Burlington & Quincy Railroad v. McGuire, 219 U. S. 549, 567. The question before us is whether we can properly say that the ordinance is not a reasonable regulation of the use of the streets affecting only incidentally one method of distributing printed matter, but that it is an actual impairment of the constitutional freedom of the press. We are justified in overriding the judgment of the city’s legislative body only if its action is clearly beyond the scope of its power. Commonwealth v. Mulhall, 162 Mass. 496, 498.
The wording of the section of the ordinance as a whole indicates that it was directed to the object of preventing the accumulation of litter and rubbish in the streets and preserving the comfort and preventing the annoyance of travellers, and that it was not directed against the liberty
In Commonwealth v. Morrison, 197 Mass. 199, at page 204, this court said, “The primary purpose of a highway is the passing and repassing of the public, which is entitled, so far as needed, to the full, unobstructed and uninterrupted enjoyment of the entire width of the layout for that purpose.” Opinion of the Justices, 297 Mass. 559, 562. The constitutional right of free speech cannot be so exercised as to obstruct the public in the enjoyment of its easement of travel. Commonwealth v. Surridge, 265 Mass. 425. See Commonwealth v. Davis, 140 Mass. 485; Commonwealth v. Abrahams, 156 Mass. 57; Commonwealth v. Davis, 162 Mass. 510, affirmed, Davis v. Massachusetts, 167 U. S. 43. The constitutional right to freedom of religious worship does not prevent the enforcement of reasonable rules and regulations for the use of streets and public places. Commonwealth v. Plaisted, 148 Mass. 375. The preservation of the public right of travel in the streets against annoyance of any kind has always been a proper
In our opinion this case is to be distinguished from Lovell v. Griffin, 303 U. S. 444, upon which the defendants principally rely. The ordinance which was there struck down was not a regulation of the use of the streets. It was an absolute prohibition of the distribution of “literature of any kind” anywhere within the city, whether delivered free or sold, without the written permission of the city manager. The city manager was thus made the sole arbiter, apparently without appeal, as to what literature of any kind should be allowed within the city. Plainly such an ordinance goes far beyond reasonable regulation and infringes upon fundamental rights. The court said of that ordinance, “It covers every sort of circulation 1 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.” 303 U. S. at page 451.
We hold that the section of the ordinances of Worcester here involved is not a denial or impairment of the freedom of the press, but that it is a reasonable and valid regulation of the use of the public ways for the preservation of public order, the protection of travellers from annoyance, and the prevention of misuse or littering of the streets, and that it affects the right of publication only collaterally and incidentally by curbing what the city may regard as abuses detrimental to the public in the manner of the exercise of that right. Commonwealth v. McCafferty, 145 Mass. 384. Commonwealth v. Haffer, 279 Mass. 73. Commonwealth v. Kimball, 299 Mass. 353. Our opinion is fully supported by well reasoned decisions of the courts of last resort of Nebraska and of Wisconsin in closely parallel cases. In re Anderson, 69 Neb. 686. Milwaukee v. Kassen, 203 Wis.
It follows that the complaints duly charged a criminal offence, and that there was no error in denying the motions to quash and dismiss them.
In each case the entry will be
Exceptions overruled