Hague v. Committee for Industrial Organization

liability; rather a that because of the con- operated dition it mine could not be profitably purchaser; nor could he find a your posses- “that trustee never taken has sion of the said lease and therefore desires reject May disclaim as of said lease 1, 1937; that will be to the benefit of said petitioner your may estate if abandon and property title disclaim to said refuse possession.” into to take same his “It is part this: further order- order ed, reject trustee is authorized to said as of date and disclaim sublease May 1937.” On said 8th June “any right, a disclaimer of trustee filed title in and said sub-lease interest 1, 1937, May thereto amendment estate” abandoned and property gave writ- relinquished all claim thereto into that he refused to take same ten notice appears It further as trustee. possession his employes the lessor’s in the record 4, 1937, May for the reentered mine on flooded, keeping being it from purpose of there for that have since remained purpose, proper- using some doubtless ty broughf lessee. onto the mine The trustee testified June testimony his is this: yesterday? “Q. you Did examine mine stopped I underground. go

A. I did not That Mr. Duncan. was the first talked to of May. since 1st time I been out had “Q. you underground been Have Yes,

mine? A. sir. “Q. When? Shortly A. before it went bankruptcy.”

into opinion, We adhere our former reached,

conclusion and the order therein directed. Mandate issue.

HAGUE et al. v. COMMITTEE FOR IN DUSTRIAL ORGANIZATION et al.

No. 6939. Appeals,

Circuit Court of Third Circuit. Jan. Hamill, Jersey City, J., A. N. James Matthews, Newark, J., N. A.

John Hershenstein Edward Charles O’- J. Mara, City, appel- for J., both of N. lants. Newark, Spaulding Frazer, of N. J. Stoffer, (Spaulding Frazer and David both Newark, Pressman, J.,

of Ernst, Benjamin Kaplan, N. Lee L. Morris F. and Harriet Pilpel, City, counsel), York all New appellees. for Ala., Arant, Douglas Birmingham, Chafee,' Jr., Clark, Grenville Zechariah Chairman, Fitts, City, C. New York of Osmer Ludlow, George Haight, Vt., I. of Chica- Lemann, go, 111., Orleans, Monte of New M. La., Neylan, of San Francis- Francis John Cal., co, Joseph Padway, of A. Milwau- Wis., kee, curiae. amici MARIS, DAVIS, BIGGS, and Before Judges. Circuit BIGGS, Judge. Circuit appeal question presented by the or not fundamental bar is whether certain safeguarded by the liberties civil Constitu- United States shall observed tion of the protected Jersey City or shall abridged. stand appellants, below, the defendants Mayor City, Director the Public Police, Safety, Chief of Jersey City. of Commissioners Board below, appellees, the are the Organization, Industrial la- Committee CIO, organizations affiliated with the bor organiza- representatives of such individual tions, the American Civil Liberties Un- Judge, DAVIS, dissenting Circuit corporation. membership ion, a part. Proceedings. The Nature complaint alleges bill of appellees denied appellants the within the meetings lawful hold Jersey City allegedly limits territorial authority adopted an ordinance upon the alleged is further April 1930. It 778' pursuant con- plan persons, denial was to a number of CIO members as or appellants sympathizers, spiracy attempted gathered entered into gather forbid at the headquarters authorities CIO at No. 76 appellees for organized by Street, Montgomery the all useWe discussing phrase purposes attempted carrying on and gather the the work of because the present effect such and that to headquarters the CIO about the re- appellants force, engaged unlawful exercised in searching ends individuals persons act- appellees and confiscating straints ing circulars and handbills re- also al- lating It is sympathy with them. union CIO activities. A substan- appel- apellants tial number leged that the denied of these individuals were de- ported sympathy with them acting in froih Jersey City by police by lees'and those placing con- upon ferry disseminate information the cerning them boats bound by handbills or circulars the CIO New York conducting them in pursuant allegedly beyond motor denial vehicles and that this to the Jersey City the territorial limits Jersey City. authority of another A small number of individ- passed upon January uals were arrested a few were be- tried appellants refused fore alleged magistrate is also who sentenced each n defendant deported days’ imprisonment permit picketing, excluded and five acting persons appellees illegally the offense agents distributing of cir- and from-the territorial sympathy with them- culars referred to. There in is evidence that police sympathizers searches City, held for Jersey of conducted CIO a time limits probable headquarters, within searching warrant the CIO in- without and seizures they molested dividuals as generally through harassed and out door and went cause disregard street, agents in into the and appellees and their thereafter entered the premises The of rights. bill and made further constitutional searches and of their complaint prayed injunctive relief. of offending for some seizures handbills. de- an answer in substance appellants filed entirely The evidence is not clear as to appellees, by charges made nying the many persons Jersey City how came to appel- up that the as a defense setting and Jersey City in attempting were to take agents invaded lees, sympathizers and their upon in activities of morning CIO No- confusion City cause and create Jersey to 29th, vember but an examination of in- police. At intimidate to and riot the minous per- dicates total number of these that the days, trial, many volu- 'consumed which hundred, did a sons not exceed their will testimony which we was taken did not an invasion activities constitute briefly summarize. accepted meaning of within that word. . Evidence. planned accomplish they pre- What had to peace no serious to sented threat November, 1937, the in appears' that It City. Jersey Upon good,order of the other Carney, regional direc- appellee William J. police Jersey City sought hand to prepared Jersey, to in New of the CIO tor disorganize the forces the CIO rather membership in for CIO inaugurate a drive proceed than to in a manner to calculated fact, upon City. Learning of Jersey this preserve civil the stated, of individuals. As Evening the Newark November we have were but few arrests headed, an published article “CIO News fewer police trials. The conduct of the 3,- Drive Prepared for Invasion-—Mass upon gross this occasion was in violation Monday Jersey City.” Launched in be 000 to persons the civil concerned. went on to set forth certain The article alleged have been made to statements Carney comparatively aWithin short time there- now the effect that there would to appellee after the American Civil Liberties “show down” the CIO be a Mayor between attempted pe,rmit secure Union to a from reported Hague. Carney was also Safety Jersey Director of Public said, go Jersey City will to “We to to have open meeting hold an air to peaceful manner. Whether

organize for Jersey of addressing possible denials in the face of this will upon subject of civil the The liberties. city I am rights in unable to of civil say speakers were to three members tenor Articles of similar this time.” Congress a member of the bar of New newspa- appeared in other about this time At about this time also the York. made CIO Jersey City. pers about in and application permit for a an out- purpose of meeting petitioning for the shows that about 6 o’- door record also Jersey City upon morning Board of Commissioners November clock pellants pathizers respect sym- dis- to CIO and its prohibiting the modify the ordinance protested speak- CIO take action and to circulars tribution respect being own- ers meetings in allowed to address alleged intimidation Jersey City. officers certain ers halls speak- as the persons were named Certain protests important CIO Congress, member ers, including a expressed appel- serve the basis Baldwin, and others. Roger organizers, N. permits for grant lants their refusal to re- meetings were hold these Permits public meetings sym- CIO its Safety of of Public Director fused pathizers. permits While were refused meet- City upon ground persons by these the Director Public A disorder. riots and ings would lead .Safety, groups not whose were views Norman refused to speak was permit Thomas, also opinions at variance with the of the ma- candidate former socialist jority of inhabitants re- permit States. A United President permits freely requirement ceived or the Amer- refused to the also meeting for a was waived. should be noted was Society of Princeton Cliosophic Whig ican University, throughout protest- period also that hold a desired to ing meetings, mass the conduct of the which Senator City at meeting appellees similar to was speaker. to be the E. Borah was William upon their November conduct ground denied also permit was This sympathizers CIO members and de- to create meeting would tend “that the ported City and searches assemblage.” disorderly disturbance individuals continued to be made without warrant or Callahan, managing editor M. William probable cause. Worker,” granted “The Catholic Mayor given by Hague The reason though meeting stated he permit for a appellants certain the other tes- Papal explain purpose the was that its Encyclicals. timony police for such acts the necessity preserving peace of was the holding CIO of to the Protests in good obviating Jersey City riot, order in and the and Mayor and to to the made were possibility of injury strife and organ- Safety by Department of Public speakers the Jersey the and the citizens of City. These Jersey in and about izations appears, however, inIt no wise from the Jersey City Cham- protests of the included Jersey record before the of us that Commerce, Association the ber of City powerless would have been maintain Veterans, Poland, War the Catholic Sons any proposed of meeting by ap- order at pellees. the City Club, Jersey the Jersey Lions the Board, of Grand Ladies the the Real Estate Findings of of Fact Conclusions the Republic Italian War and the Army of the Trial Court. Mayor evidence that There is Veterans. After the trial of the cause learned the inspired least at associates Hague and his judge opin- filedan exhaustive and able trial protests. The evidence of these some findings made and clear of ion and exact spearhead the appellee he was uncontrovertible thereupon and conclusions of fact law. He keep labor the of movement the appellees granting a decree the sub- entered example, City. For of groups out sought. stantially the relief or- meeting of veterans' very large mass findings by Among of the fact so made at was held the ganizations Armory findings are the trial court by Mayor Hague effect addressed and was CIO, Organizing Workers Com- Steel The indicates persons. record and other mittee, Electrical Radio Ma- organiza- United together of these calling that the of Rub- America United chine Workers instructions of upon the done tions was established actively Workers of America were ber himself he Mayor Hague and that purpose maintained for of or- procuring record attend- collaborated ance unorganized ganizing into labor unions of armory. least one threat At at cause labor unions to workers and against the CIO and was voiced violence agencies bargaining however, as collective Hague, function Mayor 'sympathizers. its below, terms conditions plain for betterment made in the court testifying American employment; Civil simply by was one that this threat his belief was Union established Liberties was no individual overzealous an real taking meas- purpose for the physical violence from maintained danger by essential for the to be meeting deemed This mass ures organizations. veterans’ rights secured ap- enforcement approval of the stand of its voiced proof First and Fourteenth Amendments to parks that the had States, Constitution of the U.S.C.A. United been any dedicated than purposes found general court also public. recreation of the appellees spirit these of “are in the letter and trial court also found that there no competent our proof Constitution and laws and persons that the meetings proposed by who were theory speak of our democratic institutions.” to appellees The trial court also there was found that were such that of them “ei- competent proof appellees en- that these ther in their choice of words or in man- appel- purposes tertained other lees or or that the ner of uttering the words chosen” would them “incited advocated violate canons speak of decent discussion or government overthrow of the the such words that peace breaches of the States or United the State New would ensue. The judge trial also found by force or incited or appellants violence or advocated that the permits had caused the commission of in viola- other acts be refused for holding of outdoor meet- ings tion of the laws of the United'States citizens to be addressed the divers Jersey.” persons, State of New sympathizers appellees, named in the findings of fact. Specifically in relation al- to the acts As leged appellees matter of law trial to have been commit- court held appellants’ appellants, policy ted judge learned trial deliberate official and acts appellants acting found that the violation of in their of- appellees capacities adopted ficial under the had and enforced a Fourteenth Amend- ment 8, policy excluding (Art. 1, deliberate Commerce removing Clause § 3) cl. the territorial limits 'of Constitution the United States, U.S.C.A.1 agents These are the CIO and of the the substan- American questions presented tive persons of law ap- Civil Union and acting Liberties peal. them, question A sympathy jurisdiction had exercised unlaw- is also personal raised ful and will be restraints considered later over these individ- in this opinion. and had uals interfered with their free locomotion on and free access to the Questions of Law. parks Jersey City. streets and Liberty As to of the Person. trial-court also found that such exclusions As to Exclusion Removal Individ- removals, personal restraints and inter- uals Jersey City. . frequently by ferences were from out carried police of Jersey City members the force of coming Individuals into going about upon their authority own fiat and without city upon their lawful concerns must bringing persons of law and without the ex- be upon allowed locomotion free the streets cluded, any removed or restrained'before public places. officers in order to afford judicial such in- Section 1 of the Fourteenth Amend- judicial dividuals the benefits of hearings. ment to the of Constitution the United findings Further fact state of provides, alia, States inter that “No State appellants prevented appellees.or the their shall make or law enforce which shall agents from distributing circulars and' leaf- abridge privileges ‘ the or immunities of cit- lets, placards carrying signs from * * States; izens' of the United publicizing otherwise the work of the CIÓ. right There is no doubt that in- of an pass Particularly public- dividual with freedom of meet- move- ings, the trial found ment and' appel- court without molestation that the- between the officiallyadopted and enforced de- States the Union is privileges one lants policy forbidding appellees protected by liberate federal citizens which is this ¡from communicating their views clause. As was to the cit- stated in Williams v. Jersey City by public Fears, 270, 274, izens of gatherings 128, 129, n assemblies though 186, competent “Undoubtedly there was 45 L.Ed. right proof appellants granted per- locomotion, right had from one remove persons, place mits to various not associated according inclination, to another appellees, speak personal is liberty, attribute city. judge streets of that .right, ordinarily, The trial . of free transit from or competent also was found that there no through territory is state findings fact, opinion along 1 The conclusions with the two ordinances of law and decree trial court are set referred to. appendix . out in hsse verba in an this by ac- crime commission of the 14th Amendment by secured right cused.” the Constitution.” by provisions of 36, Nevada, 6 Wall. v. See Crandall In searches and case at bar the Harvey, 296 745; U. v. Colgate 18 L.Ed. cause, probable seizures made were without 299, 102 A. 252, 80 L.Ed. S. 56 S.Ct. upon personal knowledge without D.C., Miller, v. 54; States L.R. United searching in fact with officer and Holding 65, 67; Brown Marcus F.Supp. having out crime or crimes been com 141; In D.C., Pollak, 272 F. Co. v. re Ah mitted. Fed.Cas., pp. 213, No. Fong, in- apparent therefore Jersey, 211 U.S. 102; Twining New junctive relief from searches unreasonable L.Ed. 97. 14, 53 29 S.Ct. appellees by the given and seizures to the numerous us shows record before The granted providently. court below was sympathizers CIO instances where As to in General. Interferences officers City by police removed An of the record leads us examination appellants. approval acting with the police the conclusion n court in trial findings of fact City pursued of conduct a course towards by supported the evi fully regard appellees possessed sanction properly injunctive relief dence and granted. whatsoever in appellees or ordinance. statute police that, policy contend “If the were in terms embodied in a criminal stat Seizures. Searches As to Unlawful * *” * ute such a statute would be un Con Fourth Amendment They language of constitutional. cite provides, States the United stitution Lay Brandeis Mr. Senn v. Tile Justice be secure people right “The Union, ers Protective effects, houses, papers, and persons, stating, seizures, searches against unreasonable might, spe “Members a union without violated, no Warrants shall not be state, statutory cial authorization * cause, issue, probable upon but shall dispute, make known the labor facts of a is a fundamental protected so speech guaranteed by freedom privi- opinion is a right and in our civil the Federal Constitution.” It is demon citizenship. As lege Federal strated though the record in the case at bar that abridgment states secured no ordinance of immunities clause privileges or specifically which deals with the well Amendment as the Fourteenth picketing disputes, labor less none process Amendment. clause due practical effect of actions of further question consider this shall We when police prohibit in the case at bar was to dealing jurisdiction with the picketing except terms and condi below. court imposed by tions the individual members granting of the provisions force. Constitutional and sei from searches freedom unlawful It follows that when members of a very of constitu are “of the essence zures tional police force remove individuals from a States, liberty.” v. Gouled United line, deport picket them from the territorial 263, 298, 261, 304, 41 65 S.Ct. 255 U.S. police limits of a or detain cus them 647; Importing Co. v. L.Ed. Go-Bart tody guise of arrest and release States, 344, 357, 51 S.Ct. United 282 U.S. charges trial, them without and without and seizures 153, Searches L.Ed. 374. 75 acting proc are of in defiance due they carried out if are unreasonable are guaranteed by of ess law as Fourteenth probable v. United cause. Carroll without When, bar, Amendment. as in case at 280, States, 132,45 69 L.Ed. 267 S.Ct. ap receives the such conduct consent and 790; States v. 39 A.L.R. United probation charged of those with con O’Connell, D.C., As F.2d 1005. 43 city government, justice destroy of duct is succinctly by Judge Woods stated so ed. Such a condition is abhorrent in a Appeals Court of the Circuit community. democratic Moss, 278 Circuit in Elrod v. F. Fourth “* ** An individual has by to 123, 130, justify trial search and to * * * judicial constituted properly authority up warrant, the of without seizure defined standard respon of criminal personal knowledge, direct ficer must have sibility forth set statute sense, sight,* ordinance. hearing, his or other through 782 opportunity findings trial court as to be heard must He to the these civil own defense. violation fundamental and to call witnesses his fully support process appellants are very due This essence of is injunctive re- prescribed by Fourteenth evidence law as ed Alabama, granted lief 287 U.S. . affirmed. Amendment. Powell v. Assembly, 68, 53 L.Ed. 84 A.L.R. S.Ct. As Right to the Free Massachusetts, 527; Snyder 291 U.S. v. Holding Meetings upon the Streets 330; A. or in the Public Parks of D.C., Ballard, 575; States United v. L.R. adopted An ordinance of F.Supp. 325. April of Commis- Board re findings of the trial court in “* ** provides sioners that spect heading under this are the issues parades public assembly upon in or fully supported by injunc evidence and public streets, public parks highways, properly granted. relief was tive buildings City shall take place permit or be until shall conducted Liberty of the Mind. As to be obtained from the of Public Director the Distribution Interference Safety.” The also states that ordinance Signs. Carrying Handbills and the Safety the Director of Public is authorized passed An ordinance grant permits parades upon by its Board of Commissioners “* Jan * * assembly upon application made 22, 1924, provides “No uary that days prior pro- him three least person to be dis shall distribute or cause posed parade public assembly.” any street or or strewn about tributed provides further the Direc- paper, newspapers, period public place any ’ Safety tor Public authorized re- circular, ical, book, magazine, card “* ** permit when, fuse a after investi- penalties pamphlet,” prescribes severe gation all facts and circumstanc- licensing for its breach. There are no pertinent application, es he to said believes provisions pro in the ordinance and the proper to be to refuse the it issuance there- is absolute. hibition it contains of; provided, however, that said upon its Such an ordinance invalid only shall be refused for the speech in that violates freedom of it face riots, preventing disturbances or disorder- press, fundamental civil ly assemblage.” penalties Substantial are protected by Fourteenth Amendment provided for the violation of the ordinance. It abridgment State action. appellants is the contention of the squarely the- decision the Su- within permits holding for the meet- preme Court of the United States Lo- ings in properly re- Griffin, vell appellees fused to the such meet- because ings would have resulted in riots and dis- Indeed, not understand that we do orderly assembly. today appellants contend themselves contrary. apprehend position, As we opinion We are of the it is to was no need the effect ordinance is unconstitutional in view of lay injunction upon burden permits of an imposition the fact that prepared previous them since themselves restraint ruling speak honor Su- individual assembly before an preme clearly, Court. The record public place. shows his fellows The ordi however, for some after prohibits peaceable time nance therefore assem handing bly except upon down of the decision Lovell v.' repugnant terms to free Griffin, supra, City, speech. speech Freedom of and of the practice refusing City continued their press are fundamental civil which by to the distribution safeguarded of handbills by individual appellees upon sympathizers process clause of due Fourteenth public places and in the streets Amendment. by stated As was Mr. Chief Justice ' delivering opinion placards Hughes, posting signs Su- preme Jonge places Oregon, Court De v. is freedom public of the 255, 260, opinion clearly In such is U.S. L.Ed.

press. with our City Griffin, rights ,may by be principle “These abused using of Lovell v. press assembly speech order supra. ly people guaranteed. conceived and In and crime. The to violence determin- incite ing tection, may protect the extent of the pro- constitutional through Legislatures generally, has But been abuse. if against that not uni- themselves versally, pose pur- constitu- find considered it is the can chief legislative intervention guaranty prevent previous dealing with the only by justification tional ”* * * upon publication. restraints not be must rights themselves abuse. The curtailed.” The Chief stated, “Equally also Justice unavailing is pre- the insistence that statute allow The refusal of the courts designed prevent upon the the circulation imposed restraint vious scandal tends to disturb the exemplified press is well freedom of the peace provoke and to and the com- assaults Supreme Court of the decision of mission Charges reprehensi- Minnesota, crime. Near v. States in the United conduct, particular ble and in of official malfeasance, unquestionably pub- create a Minne- statute of In the cited case a 1357. scandal, lic theory of but the the constitu- sota, the Session Laws Chapter 285 of guaranty tional even more a serious Mason’s year for the See Minnesota by authority would evil be caused Statutes, 1927, 10123-1 to Minnesota §§ prevent publication. prohibit ‘To in- abatement, as 10123-3, a provided “* * * tent to excite those unfavorable sentiments malicious, nuisance, of against those who the Govern- administer defamatory newspaper” and scandalous authorized suits ment, equivalent prohibition of to a the State in the name of them; actual prohibit excitement of and to enjoin periodicals and to to abate the actual excitement of ato equivalent them is Such publishers from further violations. prohibition of discussions having that brought against Saturday “The a suit tendency effect; which, again, Minneapolis. published From Press” equivalent protection to a of those who ad- Supreme ap- opinion of Court it the pears Government, minister the if should at the articles contained in any time deserve contempt or hatred inflammatory Saturday and had Press people, against being exposed to it By violence. its decision led to actual by free animadversions on their characters Supreme re- Court of United States the the conduct.’ nothing There is new in the Supreme versed a decree Court charges reprehensible fact that conduct sustaining injunction Minnesota abat- may disposition create resentment and the publication periodical. ing the Mr. redress, to resort to violent means of but delivering opin- Hughes, Chief Justice tendency well-understood this the determination to did not alter Court, longer no stated: “It is ion of the open protect press the upon liberty press to doubt that censorship pub restraint liberty speech is and of within safe- lication. As was said New Yorker process due clause of guarded Nolan, Staats-Zeitung v. 89 N.J.Eq. Fourteenth Amendment [U.S.C.A.Const.] 388, 105 A. 72: ‘If the township may pre from invasion state action. It was vent the newspaper circulation for no impossible found to conclude that reason other than that some of its inhabi liberty personal essential of the citizen was may violently disagree tants it, with unprotected general guaranty left its resent cal circulation resorting physi person prop- of fundamental erty.” violence, there is limit to may what prohibited.’ danger of violent re state, The Chief went on to “If Justice greater actions becomes or effective procedure, through we cut details of mere ganization of groups defiant resenting ex- operation and effect [Minnesota] and, if posxire, this consideration warrant substance is that statute in authori- legislative ed freedom of interference with the initial publisher bring the owner or ties of a publication, the constitutional periodical newspaper or a judge before would protection be reduced to a mere conducting charge business words.” form of n defamatory publishing scandalous and Grosjean Co., In American Press ** * This is essence (cid:127)matter. S.Ct. L.Ed. censorship. Sxxpreme predomi- Court held that the the grant immunity the question is whether nant “The a statute au- viz., by appellees, invoked proceedings im- thorizing such there munity granted restraint of by the Fourteenth concep- is Amend- consistent (cid:127)publication “ * * * preserve ment, was to tin- liberty press as historical- tion

78á press trammeled public aas vital source of public function of meetings at Supreme The prevent information.” Court not speakers there- to presenting from upon proceeded affirm to the decree of the preserve their views but to order while declaring they court below unconstitutional so- speak. Otherwise, a speech freedom of licensing sought imposed called to tax be assembly destroyed. upon appellees by of Louisi- State interpretation rights of free (La.Act 23, July 1934). ana No. See speech assembly and free contended Fitzgerald, also Publishing Dearborn Co. v. appellants places is shocking and these D.C., 271 F. 479. rights in hands who of those would de- There strong analogy between the stroy them. If the ill-intentioned threaten freely publish print- to the written or riot, speech may not be what had. Under freely ed word and here in issue cry conditions then would of riot not speak public assembly. may to a be be raised? Applying appellants’ doc- argued inflammatory spoken words literally, political speakers might trine not may quickly before an audience lead more stump op- city a in an if election printed dispersed to violence than the word ponents objected say they had to what to throughout city. however, question, appli- and threatened disorder. The strict degree. speech as- one of Free and free is sembly- cation of such eventual- a rule result would commonplaces are of democratic ly par- political in the existence of but one governments. They are unheard of ty as is now totalitarian case under regimes. New York and totalitarian London, In governments. possessing populations as di- cities rule contended for appel- City, speech and free free verse as scarcely lants is one which commends itself assembly of course allowed a matter are practical government. democratic Nor speakers may even for the call do we think appellants fol- govern- existing laws destruction lowed such a rule. The record shows that with tolerance and be received ments appellees sympathizers and their were amusement. permitted speak not they because speech of free deemed to be undesirables au- assembly parts free are essential of our thorities. The impending cries of riot rais- heritage. American If the words used appellants ed are not In candid. slanderous, speaker injured per are words, Mayor Hague other sociates, and his as- may damages sue for son in court at law. reversing procedure, usual speaker crime, If incites to riot or troubled the waters in order fish police may him arrest forthwith and the them. processes democracy criminal of a are There are of course punish proper him. In his both concurring available to improper places times People opinion Whitney for holding State public California, It is meetings., difficult conceive a time when a meeting question might prop in which the before erly be held at Broad and punishment Chestnut court was one of Streets Philadelphia or at spoken Broadway Forty- defendant, having in defiance she Second in New Street York Syndicalism pub the Criminal Act of California If meetings lic are to be held (Statute 188, p. c. 281), streets Mr. Justice city, they of a must be held places at Brandéis stated page 47 S.Ct. at or such times as will them page speech “The fact that not to in likely terfere unreasonably with some result in traffic and or in all violence destruction of implies. rule, Such property however, enough is not justify its sup n should not too one, be narrow a pression. must for if a There be the probability of held, meeting is injury it is to serious be assumed State. Among free that volume of traffic will ordinarily the deterrents applied men If to be increased. prevent crime punish are education mass are to be held in law, parks, they for violations of ment must held not at such abridg times and speech they ment of free in such localities that will unduly as sembly.” perceive We can no valid interfere with the reason recreation to why parks the situation should be otherwise in which A dedicated. statute or City. Speakers may prohibit embodying not be principles these speaking regulation opinion ed because say would in our be consti something which will lead to disorder. The tutional. emphasis placed by appel- period. in Much the a On contrary later the we think Supreme it upon city the cannot now be doubted lants that a owns decision Massachusetts, U.S. and in Davis v. officials and Court its administer its streets 71, upon appeal parks, private proprietors, not as but 17 S.Ct. Supreme people. for from a decision the trustees While streets and the Judicial v. Massachusetts, parks primarily Commonwealth for are be Court administered Davis, 39 N.E. reported people in for and recrea- Mass. use of the travel the 712, Am.St.Rep. In equally that, 113, 26 L.R.A. consistent tion it is certain city for- uses, public places a the cited case an ordinance Boston the with such a in people without speaking open on the Common bade must be for the use the rights Davis city may permit they from authorities. the order exercise that religious were assembly. for If speech to use Common desired the of free speak without would proceeded services. He so is obvious that these it ob- permit arrested unable to asking empty for and was forms for those a be but convic- ex- Upon appeals private places that which to convicted. in tain suitable tion was sustained. ercise them. case, however, may The Davis be The Ordinance Has Been Administer- upon distinguished its from circumstances ed In An Manner. Unconstitutional stated, we that at As Davis bar. have were to But even if we assume that applied city for never au under considera- ordinance bar, appellees In thorities. the case at constitutional, none the tion is valid and permits sought accordance with the in that it has administered less we find been per terms discriminatory in uncon- therefore ques Upon mits were denied to them. stitutional manner. constitutionality of the ordi tion judge The learned trial in three of however, discussion, it is nance now under findings past perform his of fact treats the In point cannot otherwise. we state speakers designated by ances of the however, opinion, laid our rule down appellees, they spoken whether by the Davis case has modified been decency disorder, causing and without Supreme Court later decisions of the test, constituting the or at least the most People York, Gitlow v. New 268 U.S. important single test, factor of the as to 1138; 45 S.Ct. Fiske v. per will cause whether disorder if Kansas, 47 S.Ct. 71 L. speak, lie then found as a mitted to fact 1108; Jonge supra; Oregon, Ed. De v. speakers designated that none of the Minnesota, supra, Near Lovell v. spoken appellees any public had ever at City Griffin, supra. In these later cases open meetings places desig air Supreme Court declared modern permits applications nated in speech protection liberty doctrine of designated speakers none of the against municipal assembly state and past performances given had reason ever plain in by judicial dnd made restrictions breaches grounds able belief that terpretation press that the freedom peace from result their utterances. would speech expressly protected by the First applied by judge seem-s the trial The test so Amendment of against the Constitution proper to us to be a one if be conceded protected Federal interference was also previous restraint imposed. Fourteenth Amendment inter conceive We can unless the Moreover, ference the States. speeches sought given subjected are Davis case is but there small discussion authorities, prior censorship Supreme civil liberties. The Court took completely incompatible “ course with the * * * position legis speech assembly. right of free * * * lature public speaking to forbid sup referred findings fully of fact highway park in a is no more an ported by the evidence. infringement of of member of competent can find no evidence We for the private than owner of a before violence or record us that house to forbid it his house.” [167 would have resulted either from disorder powers This view of the 733.] appellees desired authorities in to a viz., speakers, words which or from the hold powers park, likening them the meetings. likely deliver at such dwelling, does individual over his own apprehension reasonable Nor was expressions of not seem consonant with the City would have subjects Supreme germane Court 786 however, record, presents may may rioted. an what The be said at not meetings; extraordinary City Mayor designed The that was merely fact. it regulate appellants and the endeavored the manner in which the streets situation, up dangerous places build a one in city might of the be used. sympathizers appellees appellants argue of the could The this is valid exer*. safely speak. not power not result in resulted rather That such efforts cise fringe in- and does not did danger abridge any us have actual seems to of the constitutional good appellees. really from the sense This is Mayor 'good citizens than from the Hague will of contention that the ordinance is valid and constitutional upon and his face, associates. As we its a contention stated, appel- denying permits part while which we have dealt with in an earlier of this sympathizers, appellants opinion. lees and granted permits It is obvious that whether upon to other the ordinance be valid its face groups. plain- otherwise, by Discrimination used is therefore none the less it has been ly abridging shown. the authorities speech free assem- of free and- upon ap conduct Such bly. pellants process violation the due protection equal Four findings by .clauses of fact made imposed Amendment. The criterion judge upon teenth phase trial of the case are by City upon the authorities of the supported by fully the evidence and the in speak simply whether therein is junctive properly sought by appellees relief speak or right individual who is to not the granted to them. person thinking in the view of those As to the of Unclean Defense Hands who constitute the No authorities. Appellants. Advanced applied. other test is this The authorities appellants urge appel subject very Sunday clear. In injunctive lees are not entitled to relief Wakefield, Township Lake Iron Co. v. .granted them because come into court 350, 352, 495, 62 U.S. S.Ct. L.Ed. This contention is hands. unclean McReynolds, delivering Mr. Justice express finding of controverted Court, stated, opinion Supreme competent was no trial court that proof equal protection “The appellees had so conducted clause the Fourteenth Amendment [U.S. protection themselves as to forfeit the of a every person is to secure with C.A.Const.] equity. court of Our conclusions are sub jurisdiction against inten the State’s stantially similar to those of judge. the trial arbitrary discrimination, tional and wheth community, an American We think that de by express er'occasioned terms of a statute principles, to American voted upon cannot exist improper duly its through execution appellants. the terms offered agents.” constituted Minorities, unpopular, however must be al In Concordia Fire Insurance Co. v. Il their voices heard lowed to make linois, 535, 545, 292 U.S. indignation up pub whipping 78 L.Ed. Mr. Van Devanter Justice lic clamor to the expression end that free stated, “Whether a state statute is valid or opinion assembly may and free not be equal protection invalid under the clause grace upon had sits with little of the officials of the Fourteenth Amendment [U.S.C.A city. American Fundamental civil depends often on how the .Const.] statute tampered liberties must not be with if our applied.- construed and be valid system government of democratic is to sur given particular application when and vive. given invalid when another.” See also We do appellees not find the guilty of Hopkins, Yick Wo v. having unclean hands. People ex rel. Doyle Atwell, N.Y. 96, 102, 103, 133 As to the 'the Decree. Enforcement of N.E. Cardozo, J., stated, wherein appellants contend that it is mayor

“The permit, refused said, it is not feasible the the court below to enforce applicants because the were Socialists. If provisions the decree entered it that is power.” he guilty grave so was of a abuse of and that therefore it should not have been Harris, made. Giles v. 23 S. appellants Ct. contend More specifically, that the ordi- appellants’ speech does not concern nance itself with contention is that would attempt require regulate at all and does the court below super- to exercise tion volved pellees, visory powers the as will jurisdiction government with the word “and” in the seventh line necessary stricken duties. low. government self state Section íty - bylaw, reasons heretofore stated it is our official cree C.A. in the twelfth of below, the ing their wise interfered thereof scope ed free to forcible and the decree liberate A. thorities City within the structure (d) r . . J carefully f the Jersey City, - TTr Much of the In As to the o court below has court appellees ... . . of the decree kind property must he until” it , . § (cid:127) the that m our \ A e In . ’ briefs our are , 41(1), enjoins be without itself capacities, adopt pursue y consi er tiese e appear. and m 24(1) and ending J clause policy our orderly upon upon . - c preserving \ J . r T deliberate to treat question free to , opinion, however, , ., carefully of the cause only Jersey City, by worded, does not substitute the v. COMMITTEE HAGUE , directly law opinion that or their business Questions resolved appellants but also , , so far as the duties the over the administration e the streets or . i other than A with or appellants, r A ^[11] , ,1 argument y. , exercise opinion .x, line A. their under making paragraph of merit and carry * requires injunction, forbidding appellants , J r parties with the word . . m them Judicial . A. i the ,1 the inhabitants of (cid:127) policy sympathizers drawn o under of than effect constituted ihe i -u-o.A c r thereof oreover, , activities are whether v- hindered. i of Jurisdiction. ^ they jec the and enforce a de- out (cid:127) also contend . governing safety placed upon issue of the decree favor of ... body . in the court be- streets „ of i parks. and to m detail. has been devot- r acting in their i of counsel and , modification in existing ions . parks, consider their duties administration act Code, . provisions (d) beginning governmental ,« the \ by , from enforc- public places paragraph « meetings of enlarging , ^ ancl of the lives ^[1] . , should be forbidding within there was provisions ^[1] , r ,1 the court V,. o terms of interfere e jurisdic- .i rp^ „„ are For “City” Ihe opinion author- to hold “unless has m- ,, will ot law. places is . it m . ecre® mi r c e Inem ,1 FOR INDUSTRIAL ORGANIZATION ., v that leit 1011’.ga 774 We un- ap- au- the ^ en- iU . i it- of m (cid:127) . it why * £ . ío Fourth Amendment should not stand ^stanc^ as A$ “ . have brought ment. against °-i the Constitution. merit is ^ the Constitution m wgre searches Bm of tary the existed as a curb appellees by seizures rights der the searches A11 Judicial the cause cured so contend that cause that subsection relates (( instrument. freedom last mentioned croach j£ngian(j of subsection C.A. ., - . secured ^ & parity today i “* This Thc Liberty to Jurisdiction Under Section specdl’ locomotion, . . ,of unable appellants, , ^ .. Qf appellants .J , r^^t ~ § jurisdiction created to citizens of . , thc?e sub mdl7?dual 41(14). upon ^ Federal Constitution. Bights. . « provisions * in the states abridgment by * appellants protected .. cml Judicia¡ and state is of course true and it right to appellants Parl into n Code, r aIMj . and seizures from unreasonable ... and seizures the Bill , J granted by the upon J * judice ofJ \he A ,« , . which . . the r^h}s the appellants point out It follows . therefore antedated the j- materia. perceive any the J Jn «ShAts that the court 14 but more 28 (cid:127) OQ - , have is, with freedom of religion, We will Constitution ~ Constitution m these ~ ^ .« ^ person, including American and 111 . that of of that privileges of contend that ncr U.S.C.A. it was al? P**® c &TT r free from unreasonable refer . proven power of the first the that Amendment prior to ,« ,1 the Section c the sense that here Rights indicated, free of unreasonable . it the we rights of e<lual not secured . First «. therefore, set deal United States cause at bar vital section. . our * . , feared set x instance reason, however, hedeial section, Fourth , elementary that , “ , „ Colonies m that only s; § ° below did not forth in the OA/1A\ £ *.U 24(14) searches and were first °Pmion foith °AfAmendment, . ,lssue states. We 41(14), zii/i/t\ )- , importance immunities the funda is elemen while the , seen, might , 24(14) c. A. the assfmbly They right of adoption designed . .. that be- with the freedom , Amend (cid:127). govern- contend Federal not se , sense, ^ ^ to , . of the rights adop sense 7ere from . . : they & .< only ^ one un 787 be- a1 the en- al , < by of A . language precise forbidding meetings * is as follows: kind on “ * * * streets, highways, and unless until de- thor ouglifares places Gity acting capacities in their official of Jer fendants * * policy adopt sey and enforce the deliberate ”* * * proper proceeding redress.” Section States United of citizens of the 24, subdivision fourteenth of the Amendment Among protected by the Fourteenth Judicial Code, (14), gives the 28 U.S.C.A. states. § abridgment origi- States states district courts of the United liberties those jurisdiction, regard without the nal deprive individual may not “ * * * of all controversy, are amount in Amendment process clause of due California, by law equity authorized at law or in suits Stromberg v. speech, freedom of 1117, person redress by any brought to be 532, 359, 75 51 283 U.S. law, any press, deprivation, under color of 1484, freedom A.L.R. 73 custom, or statute, ordinance, opinion regulation, I-nour York, supra. Newv. Gitlow freedom State, any right, any privilege, usage, searches unreasonable .and from by immunity, the Constitution secured or as well. included seizures is States, any right secur- or of the United se- rights civil were These fundamental pro- States by any law of the United ed infringement against individual cured by equal rights of citizens viding for by the First government the Federal States, persons United of all within very In real Amendments. and Fourth These jurisdiction of the United States.” they privileges Fed- thus became sense provisions from Sec- brought forward they Consequently are citizenship. eral 22, 1871, 20, c. April 1 tion of the Act of privileges citizens of among the' note, 13, entitled 8 43 17 Stat. U.S.C.A. § from those distinguished States as United Act to the Provisions “An enforce appertaining purely citizenship to state Constitution Amendment to the Fourteenth privileges may abridge are which no state Pur- States, for other of the United Fourteenth under the tected Amendment. Pro- therefore that poses.” is clear by abridgment Federal to, by the rights secured civil refer -the by government Fourth First and Amendment, including those Fourteenth Amendments, they protected from are involved rights which are fundamental n abridgment by by the states the Fourteenth Indiana Manufactur- Holt v. See this suit. Harvey, supra, Colgate v. Amendment. See 272, 44 L.Ed. 68, 20 S.Ct. Co., ing page page 56 S.Ct. at wherein at Sutherland, by it was stated Mr. Justice “ * * * cannot, Four- a state under the statutory provisions set out Since the Amendment, teenth [U.S.C.A.Const.] enforce originally above were enacted privileges citizen of the abridge the of a rights by the civil recognition the states of States, time albeit he is at the same United by Amendment secured the Fourteenth undertakes state which a resident to rights the civil in view of the fact ” * * * Slaughter so. See also the do af Amendment to which the Fourteenth Cases, 36, 79, House Wall. by only in protection are secured fords Miller described’ in. which’ Mrl 'protected guaranteed being Justice sense assembly privilege of peaceful as a right of states, think that by we invasion It follows States. citizens United (14) entirely Section it is clear the fundamental civil therefore that phrase “secured uses Code the Judicial ’ n the United States to citizens of secured which in that’ sense by the Constitution” First Fourth Amendments by the viz., meaning, -to ordinary plain and is its protected or being in the sense of secured put beyond losing. hazard of by State against’ interference guaranteed States, In case of v. United Smith Amendment. by Fourteenth action Cir., 8 tention similar to that of the F. decided in a con- specific statutes To discuss now appellants jurisdiction is which invoked interpretation under was made rights R.S.1979, bar, 8 U.S.C.A. Amendment, at suit § under the Thirteenth who, “Every person under provides U.S.C.A.Const., by the defendants with statute, ordinance, regulation, color of jurisdiction regard to the court district Territory, custom, usage, State or try upon an them of the United States to subjected, any subjects, or causes to be charged them with con- indictment per- place or other negroes United States spiracy citizen a condition involuntary jurisdiction thereof to servitude. Freedom from within the the of son important as, involuntary is as servitude deprivation rights, privileges, to, precisely status similar bears a secured the Constitution and and immunities laws, speech religion, and of the party injured freedom shall be liable to n Appeals law, equity, Court of press. or other The Circuit at suit an action » * * * p¡.js 0J3yíous argu- Eighth Circuit demolished the bar that the suit at stated, pages arises Judge ment. Adams the Fourteenth Amendment complete only question conten- “A answer defendants’ to be which remains statute3 by the fact determined is the value tion is afforded of the matter controversy. Constitu- right ‘secured’ protects a in, laws; originating not one tion seen, As involves we have the suit * * * created, granted them. deprivation rights. civil R.S. §§ right “A which has been conferred give U.S.C.A. §§ law. manifestly by that secured law is deprived individuals thus of action authority concession, however, is no Such statutes, Irrespective law. these right secured that a for. the contention however, in the individual of action conferred necessarily been law must political damages for loss of by some law.” Herndon, law. existed common Nixon v. at 536, 446, L.Ed. 759. 273 47 S.Ct. 71 U.S. opinion But if we were of the the that jury * * * sounds in tort and the an action Such words used in the statute “secured exemplary punitive damages. award or by in the Constitution” mean created the Barry Edmunds, 550, v. 116 6 U.S. S.Ct. by the we would first instance Constitution 501, 729; Sinkler, Wiley 29 L.Ed. v. 179 compelled rights to hold these still be that 58, 17, U.S. 21 S.Ct. 45 84. In such L.Ed. since, by the Constitution were secured jurisdictional an action the sum to be seen, they in that we were secured have by by the the determined amount claimed by the people country to of this sense the declaration, plaintiff complaint in his or con- First Fourth which Amendments Teel, 6862, 2 Hulsecamp v. No. Fed.Cas. upon the rights these citizens ferred 414; Sinkler, Wiley Dall. 1 v. protected them government Federal by way supra, including an amount claimed by government. infringement Rudich, punitive damages, Ragsdale v. Consequently it follows that Cir., appears from 5 F. unless it 293 view, either since the suit at bar was not complaint it is or declaration that the possible brought protection secure en plaintiff to recover rights appellees forcement of of which the amount or that amount claimed deprived by appellants, had been it was fraudulently in claimed order to create by above, quoted authorized R. S. § jurisdiction in the court. v. Smithers and the District jurisdiction Court had Smith, 204 27 U.S. by provisions cause virtue of applies 656. This rule in as well suits (14) Section 24 of the Code. Smith, Judicial equity. D.C., Maurel v. 220 F. As to under Section Jurisdiction In suit at in bar the amount 24(1) of the Code. controversy Judicial by is to be determined the value rights appellees of the civil of which the opinion We are of the that the court deprived past and which jurisdiction below also had cause of the with loss in threatened the future. under the first 24 subdivision of Section by is to be amount of value measured Code, 41(1), of the 28 U.S.C.A. § Judicial might damages by the which be recovered provides which Courts District appellees action at In bill in law. original of the United States shall “ * * * appellees complaint aver that jurisdiction suits a civil of all * * controversy $3,000, amount exceeds nature, ex equity, law at common or of interest and costs. exceeds, clusive The court controversy matter in where the costs, appellees or below found of the interest the sum exclusive of them which $3,000, abridg and of each of had been (a) under the value of arises destroyed by appellants United States ed or had a or laws Constitution premises highway, another, (18 51), or on | R.S. U.S.C.A. § prevent or with intent hinder his free as follows: enjoyment any right persons conspire or or more exercise “If two or secured, privilege oppress, threaten, injure, intimidate so be lined or shall imprisoned §5,000 than more or not in the free exercise en- citizen years, any right privilege shall, joyment than ten more more- se- not ineligible over, thereafter of- or laws be him Constitution cured to place honor, profit, States, fice, or trust of his the United because same, Constitution or having laws if two created exercised so disguise go persons on the United States.” more $3,000, municipal part- de- appellee in excess of office and value to each a munincipal policy. was liberate exclusive interest costs. This that each finding court effect class, As to the first we entertain appellees have recovered might appellants’ doubt but acts con- deprivation of damages a sum in for each stituted action state an ordi- since equivalent of also the right. It was adopted by authority nance ap- by the claimed finding that the amount legislation4 state has been held an act to be controversy averred pellees meaning state within the faith. good them in Fourteenth Amendment. New Orleans Sugar Re- Water-Works Co. v. Louisiana would opinion the court below In our fining Co., 8 S.Ct. holding otherwise. justified in been not have appellants L.Ed. 607. actions finding is Sinkler, supra. Its Wiley v. category the second must likewise be held ac jury in an that of a precisely similar to Fidelity to be state Deposit actions. & Co. redress brought damages tion for Tafoya, and was civil deprivation Indeed, L.Ed. 664. is no doubt evidence specific based required to be provisions Amend- of the Fourteenth trial upon the but rather the value as to protection guaranteeing equal ment opinion as knowledge and judge’s own if, law are violated as the court below found puni exemplary or as to value bar, municipal the case failed officers reasonably might damages which tive systematically to an ordinance enforce Cir., Venable, 260 8 Wayne v. awarded. equally against members of the class all the F. 64. by affected v. it. Cumberland Coal Co. Capacity of Certain of the the toAs Revision, 23, Board of 284 52 U.S. S.Ct. the Action Appellees to Maintain 48, category of 76 L.Ed. 146. The third at Bar. acts must of ‘also be held to the acts that because appellants contend meaning within of Four- the State the the corporation and appellees parte Virginia, Ex 100 is a teenth Amendment.

one of 676; unincorporated 339, Telephone associations 25 L.Ed. Home others are enjoy Telegraph some Angeles, & Co. v. Los 227 U.S. are not entitled subject of 312, 315, 33 57 510. As rights which are civil appellees referred to how Chief White said of the Fourteenth All suit. of the Justice cited, pro- membership corporations or Amendment case last- “It asso in the are ever vides, therefore, clearly appears who for a case one ciations and where power possession state brought by them for the benefit uses suit was opinion power doing wrongs these to the In our members. of their forbids, parties Amendment proper and able even appellees although capacities wrong not be representative consummation conduct the suit possessed, respec powers if commis- within the interests of their on behalf of wrong possible itself is rendered News Service sion of International members. tive by authority efficiently Press, S.Ct. or is aided the state 248 U.S. v. Associated say,, (cid:127)lodged wrongdoer. in the That 211, 2 A.L.R. 293. theory Amendment is that where of the Contention As to the That the Actions state, representative of an officer or óther Appellants of the Did Not Con- authority exercise of the with which stitute State Action. clothed, power possessed misuses the ishe appellants that' also contend by wrong Amend- do a forbidden complained appellees their actions ment, concerning inquiry whether the state did not constitute action the State irrelevant, wrong authorized has is. prohibition of the New within competent power is to- judicial the Federal enjoined Fourteenth Amendment'. The acts wrong by dealing- for the afford redress types: by the court below were of three result of his exer- with the officer and the pursuant express (1) mandate acts power.” tion city found ordinances void on their Adequacy Appellees’ As to the face; (2) carried on acts under color of. Remedy at Law. discriminatiyely city and there ordinances ap appellants applied; contend that unconstitutionally (3) fore remedy adequate pellees full and authority ordi have a- not under acts therefore the causes law and that but committed under color nance or statute 78, R.S.N.J.1937, p. P.L.1901, N.J., P.L.1882, N.J., p. 47, 40:167-2. as amended See De- governing board of complaint are is up the bill of action set Hague, mayor, gen- has .opinion fendant Frank In our equity. cognizable supervisory powers over all de- The eral sustained. cannot be this contention in fact partments con his admission and shocking and clearly shows a record departments, including policies of these basic civil disregard of the stant the policies department These acts appellants. appellees policies. safety, continuance are threatened his were torts and relief equitable ground for is sufficient Purposes B. of the Parties. Thompson, v. Terrace granted. sought and Plaintiffs, Indus- the Committee 255; 15, L.Ed. 44 S.Ct. 263 U.S. Organiz- Organization, trial Workers Steel Co., Water Walla v. Walla Walla Walla Committee, Radio ing United Electrical 77, 43 L.Ed. 19 S.Ct. America, and United Machine Workers R. Missouri Pacific 341; & Co. Osborne America, were estab- Rubber Workers L. Co., 147 U.S. purpose lished and maintained for the Ed. 155. organization bringing about as labor modi- below is court The decree of unorganized in various unions of workers opinion in this indicated heretofore fied as by purpose of industries and with the further (d) paragraph striking causing said unions to labor exercise hereto- limitation words injunction the legal organ- normal and functions labor respects inis all specified and fore bargaining izations such collective affirmed. wages, to the betterment of hours work and other terms conditions em- APPENDIX. ployment. 2. Plaintiff American Liberties Un- Civil of Law Findings Conclusions Fact and ion was established and is maintained Court. Trial taking such measures as it deems lawful and for essential the enforce- by of secured ment the First Findings of Fact. Amendment and the Fourteenth Amend- ment Parties. A. of of Constitution the United Industrial for 1. Plaintiff Committee States, U.S.C.A. The First Amendment unincorporated voluntary is Organization “Congress reads as no follows: shall make principal officein having its committee respecting religion, law or establishment of Plaintiffs Steel of Columbia. District thereof; prohibiting the free exercise or Committee, United Organizing speech, Workers abridging the freedom of or of the of Machine- Workers Radio and press; people peaceably Electrical or the of the of America, Rubber Workers assemble, United petition and and Govern- voluntary unincorporated la- America, grievances.” for a of are ment redress plaintiff' with affiliated organizations bor Hague, 3. Frank Defendants Daniel J. Organization. Industrial for Committee Casey Harry and Walsh or were elected Carney for is director William Plaintiff in appointed J. and office are plaintiff Jersey of Com- New of the State taking in the administration of of government and Organization, Industrial mittee City Jersey of the of Traynor, William P. plaintiffs William J. purposes plaintiffs 4. of the above Sweeney Macri, McGinn, P. Samuel James spirit in and forth the letter of our set Foley representa- are field Daniel and J. and of theory and laws of Constitution for Industrial Or- of the Committee tives democratic institutions. our supervision plain- under the of ganization competent proof no that the 5. There is Carney. tiff William J. any pur- had plaintiffs or of them other Liberties American Civil Plaintiff 2. particularly and more there is no poses membership corporation having Union proof plaintiffs competent or City officein of New York. principal its incited or advocated the of them overthrow Hague government of the United or Mayor Frank of of the States 3. Defendant City, Jersey New force of vio- Daniel of City Jersey defendant the State Safety or incited or advocated the commis- Casey is Director Public lence J. in violation of the City, Harry other acts defendant Walsh is sion of Jersey or the State of City, and the United States Jersey Police of defend- laws of Chief City Jersey. Jersey Board Commissioners New ant highways, thoroughfares Liberty Person. of the or C. places City City, and in so acting 1. in their official The defendants rely doing they purported have on an or- capacities adopted enforced and City City passed dinance of the policy (a)' excluding deliberate and re- January 22, 1934. Jersey City moving from the limits of va- agents plaintiffs prevention rious Committee This carried out Organization American Civ- members of force of Industrial il ing persons Union and various act- force violence Liberties and without con- sympathy contrary plain- ’or in with said concert sent of and will plaintiffs, personal (b) exercising re- acting sympathy tiffs and those or in con- plaintiffs agents straint various cert over with them.. Organization Committee for Industrial circular, 3. The leaflets and handbills Union and American Civil Liberties vari- prevented whose distribution was thus sympathy persons acting ous con- respect obscene, offensive to (c) plaintiffs with said inter- cert advocacy morals or an unlawful conduct fering with of locomotion on Griffin, (Lovell page 303 U.S. at streets, highways, free access 949) other re- parks thoroughfares, places of the spects objectionable. agents of various circulars, 4. The distribution of the leaf- plaintiffs Organ- for Industrial Committee lets, prevented and handbills thus carried American Union ization and Liberties Civil in a manner consistent the main- .out persons in sympathy and in acting various involving tenance of order plaintiffs. with said concert disorderly conduct, the molestation of the removal, exclusion, personal 2. This re- inhabitants, littering the misuse has been straint and interference out carried Griffin, the streets. Lovell v. force and violence without the page 82 L.Ed. 949. and contrary consent of will cer- competent proof 5. There is that the de- plaintiffs, tain of the individual various pursue policy fendants threatened to plaintiffs agents of the Committee for In- circulars, preventing the distribution Organization dustrial and American Civil and handbills leaflets persons acting Union and Liberties in various with, sympathy acting those or in concert sympathy them, or in al- concert with public streets, highways, them on the thor- though persons all those were at the places oughfares exclusion, removal, personal time of such City. and acting restraint derly interference in an or- Placards. peaceable manner. and defendants, in acting 1. The their offi- exclusion, removal, personal 3. This re- capacities, adopted have cial and enforced persons by straint arid interference of force policy preventing the deliberate of by and violence is carried members out of plaintiffs sympathy acting and those in or police City force Jersey own their distributing plac- them in ards in with from concert authority administrative fiat without óf law- streets, highways, or about thor- persons, excluded, and without bringing the public oughfares places City or removed, personally restrained and inter- City, Jersey doing they in so and have- speedily pos- fered with as reasonably as is rely purported to on an ordinance o'f the- any judicial sible before in officer order City adopted City February persons may that such be afforded judi- 1935. day cial or -in hearing court. prevention 2. is carried out This Liberty D. of Mind. Jersey City force of members Circulars, violence force and without the con- Handbills. Leaflets contrary sent of will of the- defendants, 1. acting in their offi- those plaintiffs acting sympathy in or- capacities, adopted have cial and enforced with them. ín concert policy the deliberate of preventing the plaintiffs placards and those in acting sympathy whose or 3. The distribution was. prevented respect obscene, in concert with them from were in distributing any thus circulars, leaflets public advocacy or morals or an handbills more offensive particularly Griffin, Plaintiffs’ (hand- (Lovell Exhibit No. 1 conduct 303 of unlawful (leaflet), bill), 4 7'(circular), page No. No. 82 L. U.S. Ed. at respects objectionable.. (ciicular) streets, 949) No. 32 or in other about or plaintiffs placards thus referred 2 of 4. The distribution Subdivision any con- spoken public out in a manner E hereof prevented is had ever at carried public or- meetings open with maintenance or assemblies air sistent conduct, disorderly involving public places previous applications der and not at to the inhabitants, permits or the the molestation above referred to at public Lovell v. littering of streets. or meetings misuse said assemblies or 451, 58 Griffin, page peace at S.Ct. breach of had occur- whatsoever 666, 82 L.Ed. 949. red. competent proof de- competent that the proof There is A is no 5. 6. fortiori there policy pursue proposed speakers fendants threatened them placards applied plain- distribution of preventing meetings at sympathy plaintiffs acting and those of E here- tiffs referred to Subdivision meetings spoken any public with them on the in concert of had ever at streets, thoroughfares places highways, open or assemblies in the air and at City applications places previous to the which said permits referred to at above Meetings. E. Public speakers either in their them had capac- their official 1. The defendants in or in manner of ut- choice of words adopted delib- and enforced the ities violated the rea- tering the words chosen forbidding plaintiffs and policy erate giv- sonable canons decent discussion or sympathy in concert persons acting in apprehension en to believe that reasonable them, communicating their views peace would result from breaches of the through citizens of to the said words. the utterance or assemblies holding through competent proof There 7. public places. open air and at Plaintiffs’ Exhibits Nos. plain- December On about City granted permits to has duly Union tiff American Civil Liberties pro- persons plaintiffs various other than the pursuant applied under and in the posing speak meetings April 16, City adopted city. streets of the said permit 1930, for hold an outdoor as- place sembly Allegations. in a F. Jer- Jurisdictional sey by Congressman City, to addressed plaintiffs rights of and each 1. The O’Connell, Maverick, Congressman Con- them, frustrated interfered with and Ernst; and gressman Allen and Morris L. defendants, forth, have val- above set 23, 1937, plaintiff on or about December plaintiff excess ue to each Organization Industrial sim- Committee for $3000, sum exclusive of interest ilarly applied to hold out- costs. by Congress- assembly door to be addressed 2. The enforcement of the defendants’ O’Connell, Baldwin, Roger man N. William forth, policies above set Carney, Barkin, Macri and Al Sam John J. herein, irreparable results in dam- applications severally Kiesler. Said en- age to them and the threat continued of Casey upon Daniel denied defendant J. policies against in- forcement of said them approval consultation with and of the other repeated of manifold and volves threat defendants herein. prosecutions alleged and mani- offenses competent proof There is that the 3. no repeated rights. fold and invasions of parks City are of or of them competent proof no 3. There purposes the gen- other than dedicated for plaintiffs Organ- for Industrial Committee public. recreation eral of and American Liberties Un- Civil ization competent proof 4. There no organizations or that in- ion are such speakers proposed or them at the of plaintiffs so dividual conducted them- plaintiffs meetings applied said re- protection of forfeit a court selves 2 of E hereof had ferred to in Subdivision equity. any public meetings spoken ever or as- at of Law. Conclusions open air and at semblies applications for places previous jurisdiction over this 1. The has Court permits to. above referred 24(1) of the under suit Section Judicial Code, 41(1), under and Sec- competent U.S.C.A. § 5. A fortiori Code, 24(14) speakers any of tion proof proposed Judicial 24(12) 41(14), and under Section applied C.A. at § them Code, 47(3), and 8 U.S.C.A. (14) of the U.S.C.A. reinforced Section § Judicial Code, and of Title 18 of 41(12) (14).- the United States § 18 U.S.C.A. 51. § policy acts 2. The defendants’ official and exclusion, personal separate removal and 8. The respecting and distinct defense in point are in of law restraint violation Section and set forth in the defendants’ an- process equal protection herein, clauses swer the due and to the effect that certain 'improperly joined Amendment to the Con- defendants in- of the Fourteenth U.S.C.A., dividuals, States, and held law stitution the United to be insufficient in 1, upon of Article the interstate commerce clause the face thereof. the United Section 8 of the Constitution allegations 9. The sec- contained (cid:127) States, U.S.C.A. paragraph ond added the defendants’ an- and policy defendants’ official 3. The swer their amendment held to answer are to, interference, respecting free access acts constitute a valid defense and thoughts and communication locomotion insufficient law as a defense thorough- streets, highways, on the face thereof. City fares, parks places of and Jer- plaintiffs adequate 10. The rem- have no process sey City due are violation edy law, and cause of have established a of the Four- equal protection and clauses entitling action them to court relief this Constitution teenth Amendment to equity, and are not debarred from such the United States. by any performed by relief acts heretofore 4. The policy defendants’ official and them, and do court of not come into this respecting acts distribution of literature on equity with unclean hands. public streets, highways, thoroughfares, per- 11. The entitled to are parks places and are in violation of the due injunction against manent defendants process protection equal clauses subjoined judg- terms and form inas Fourteenth Constitution Amendment ment decree. States, of the United the ordinance of Judgment Final and Decree of the Jersey City, passed January Trial Court. 1924,under pur- which the defendants have November, 1938,, day onis 7th ported act, is, with dis- to such Ordered,, Adjudged Decreed and as fol- literature, void, tribution of held to be un- lows : constitutional and of no force or effect. Hague Frank defendants individu- 5. The policy defendants’ official ally Mayor Jersey City, and as Daniel J. placards respecting acts are in violation Casey, individually and as of Pub- Director process equal protection the due clauses Walsh, Safety Jersey City, Harry in- lic of the Fourteenth Amendment to the Con- dividually and as Chief of Police States, stitution of the United órdi- City, the Board Commissioners adopted nance of the City, agents, servants, employees, February under which the defend- deputies, officers of the defendants purported act, ants have is held to be them, persons each of and all associated void, unconstitutional and of no. force or direction, supervision effect. of them control of the defendants policy 6. The' defendants’ official hereby perpetually enjoined and re- acts respecting assemblies vio- are in : strained process equal protec- lation due Liberty A. of the Person. tion clauses the Fourteenth Amendment States, Constitution of the United . directly indirectly excluding From City and City, adopted April the of them, the of plaintiffs removing any or the or of under which employees of, agents, servants or or or the act, purported in the defendants have is sympathy persons acting in or in concert application void, its unconstitutional and of plaintiffs any the or of them from with no force or effect. City of plaintiffs directly indirectly exercising or 7. The herein have established 2. From proved any personal plaintiffs over the and a cause of under the Con- restraint action or States, them, any agents, of United and under of or the servants em- stitution or of, ployees persons acting sympathy in of 8 of the United or Title States Section Code, plaintiffs any and under 8 U.S.C.A. Section or in concert with or of § personal far Code, except in so as such of them re- of Title 8 the United States 47(3) any right of circulars, in accordance distribution straint is with of the said leaflets any right of arrest and and search and seizure manner handbills carried out in a reasonably speedily as is consistent public and removal as with the maintenance of ex- conduct, officer under and possible judicial involving disorderly order before inhabitants, the molestation of isting law. or littering misuse or of Lovell the streets. indirectly directly or interfer- From 3. Griffin, page at 58 S.Ct. or any them, plaintiffs of or ing with the 666, 82 L.Ed. 949. of, or employees or agents, servants sympathy or in concert persons acting in 3. Placards. in their plaintiffs any of them with the or directly indirectly interfering From or on locomotion right free access of them, plaintiffs with of or the any or thoroughfares, streets, highways, public of, agents, employees per- or or servants City of parks places acting sympathy sons in or in concert with inis except far such interference in so them, carry- plaintiffs any or any right search with accordance of, persons on ing display or them to and remov- any right of arrest seizure and public streets, thoroughfares, highways, reasonably possible be- speedily as is al places City, parks City of Jersey existing law. under judicial officer fore printed any placards, or signs or written Mind. Liberty walking whatsoever, B. matter whether printed fro or mat- with such written Speaking 1. public other than at meet- persons, affixed held the the ter to their or in ings. otherwise; hands, provided (1) or directly From indirectly interfering or print- placards, signs any said or written or plaintiffs them, with any or or the' respect ed scene, are in no ob- matter whatsoever agents, of, employees persons servants or or public or an ad- offensive to morals sympathy in or acting in concert with (Lovell vocacy of unlawful v. Grif- conduct plaintiffs any right in or them their fin, page at thoughts per- communicate their to other provided (2) dis- 949) public in streets, high- sons about any placards, signs or tribution parks ways, thoroughfares, places printed matter whatsoever or written except Jersey City in so far as consistent with the out in a manner carried any such inter ference with accordance and not involv- public order maintenance right any right of search and seizure and conduct, molestation disorderly ing speedily arrest and as is removal as reason- littering of inhabitants, or or misuse possible ably judicial officer before a Griffin, 303 U.S. Lovell v. the streets. existing except law and para- further this 666, 82 L.Ed. page at graph bearing upon has no plaintiffs any them, Meetings. or agents, or the 4. Public of, employees persons or acting servants in or any previous (a) placing From restraint sympathy or in plaintiffs concert with the any or manner whatsoever any speak or meetings them to directly indirectly interfering or with the is hereinafter dealt with. any plaintiffs or them meetings or holding of assemblies in fhe Circulars, leaflets and handbills. open parks pur- dedicated for the air and directly interfering From indirectly or poses general recreation plaintiffs them, any or with the or the application provided that an for a servants, agents, of, employees per- or or meetings hold or on such behalf of said sympathy sons or acting in concert with any plaintiffs has or of them been made them, plaintiffs or of by in the circu- days three in advance persons lation distribution them permit may provided further that such streets, highways, thoroughfares, only of them refused these parks places particular time for the reason that handbills, pamphlets, circulars, emblems designated application place printed written matter whatso- recrea- reasonable conflict circulars, ever; provided (1) the said parks. purposes of said tional respect handbills are in no ob- leaflets and scene, public withholding refusing to morals or ad or offensive From (b) ap- (Lovell any plaintiffs or of them vocacy of conduct v. Grif the said unlawful permits as hereinabove fin, plications page at for said meetings 949), protection said provided (2) provided such necessary or to secure Ordinances. assemblies as is oppor- plaintiffs any said or of them the regulate An Ordinance to the distribu- in- tunity meetings without to hold such newspapers, papers, tion periodicals, of interruption such terference from or persons may books, circulars, magazines, cards and present meet- as be at said pamphlets. protection is ings provided only that such The Board of Commissioners of ability of reasonably consistent with the Mayor and Aldermen do obliga- carry their the defendants to out ordain: resi- regard safety to the of the tions person 1. No shall distribute or cause provided further Jersey City and dents of to be or strewn any distributed about street duty of the defendants to afford that the such place public any newspapers, or paper, peri- protection holding such meet- odical, book, magazine, circular, card or may necessary for be ings or assemblies pamphlet. peaceful ter- continuance be their 2. person No shall distribute or cause plain- by words conduct of the minated or occupants any to be distributed to the house, place any exist- or of them in violation of tiffs placed any. or cause to into ing law. areaway, of, along front or the side house, (c) continuing any From heretofore ex- upon or doorstep thereof pressed grant permission any to Con- newspaper, paper, book, refusal to periodical, Maverick, gressman Congressman magazine, circular, O’Con- pamphlet, card or un- nell, Congressman Allen Morris L. previously less the same has been ordered Ernst, O’Connell, Roger Congressman person occupation in actual of the Baldwin, Carney, Barkin, house, N. William Al areaway which, in front J. upon applica- which, Macri and Kiésler Sam or along doorstep the side or John 23, 1937, re- dated December 17 and newspaper, paper, tions spectively, said periodical, book, and from continuation their magazine, circular, pamphlet card or expressed grant heretofore those refusal shall placed. be distributed or speakers rights named all the set forth said in Any person 3. violating causing or to be preceding paragraphs of this' two violated, to, or consenting permitting or injunction. decree for any provisions the violation of of the shall, this ordinance plaintiffs (d) refusing From or conviction there- of, subject be liable or any to a fine not them the set forth Dollars, exceeding ($10.00) Ten paragraphs three this or im- preceding decree prisonment period injunction not rights may exceeding, in so far days prison ten sought public (10) or the any county jail, in public streets, on accordance highways, of the with the stat- utes in such both, thoroughfares sey City places City provided, cases made and or of the or Jer- offense, for the first (other than and a parks) and un- fine of Twenty-five less imprison- and until the in their ($25.00) defendants acted Dollars or capacities adopt official thirty de- ment not exceeding (30) days, enforce the or policy both, forbidding meetings liberate any every subsequent for each and of- any streets, kind high- on of the fense. ways, thoroughfares places, City or complaint Any 4. regarding viola- Jersey City provided provisions tion of of this ordi- any'of them hold meet- cognizable nance shall be Police before the streets, ings highways, City. Courts this thoroughfares places of Jer- 5. This shall take effect im- sey terpretation by subject be held to a reasonable in- mediately. defendants of the ac- Fagen, Michael I. knowledged public passage easement of Quinn, Wm. B. streets, high- over Saul, John A. ways, thoroughfares places Harry Moore, Hague, Frank Commissioners. 5. Formal. January Passed: From ordering, commanding, directing, Holland, Edward J. assisting, aiding any manner abetting City Clerk. any person whatsoever to commit or at- tempt things enjoined preserve public peace to commit An Ordinance to decree,, order, prevent riots, this anything good do re- and and to dis- quired by disorderly assemblage. decree be done. turbances It assumes Jersey tion”. that what the defend- The Board of Commissioners ants, speaking parties they City as stood Do Ordain: Court, Jersey City in the District in did passage of this From and after the 1. abridgment constituted an these “funda- ordinance, public parades public as- or only liberties” question mental civil streets, public high- upon the sembly in or they then whether would be should or not buildings ways, public parks or abridged Jersey in stand and not else- place conduct- City shall take or be ques- where. The mere statement of that permit ed shall he obtained from until a tion I question, answers itself. The as see Safety. Public Director of it, whether or not is what the defendants is Safety Director of Public 2. The City deprived plaintiffs in did grant empowered to hereby and authorized any rights to which were entitled assembly, permits parades and under Constitution of the United States. three upon application him least made question depends upon to this answer days pub- prior proposed parade or questions. two further assembly. lic is The first one is Safety whether or not the ordi- 3. The Director of Public nance, pursuant permits to which refuse to issue said hereby authorized to denied, is, when, is permit of all of constitutional and if it investigation after question pertinent second is Di- whether or not the Safety and circumstances facts proper denying rector Public in application, said he believes it to permits thereof; authority provided, abused the discretion and to refuse the issuance however, be re- which the in him. only shall vests riots, preventing fused for the parts: The decree is into divided two disorderly assemblage. disturbances or A., Person”, B., “Liberty “Liber- person persons any Any violating 4. or ty Mind”. The substance of the re- provisions of shall this ordinance straints contained in the decree follows: upon magistrate before a conviction A., enjoined Under the de- Court punished by a fendants : exceeding fine not imprisonment two hundred dollars excluding 1. From removing Comity jail in the Hudson plaintiffs, decree, which includes in this days period ninety not exceeding servants, agents, employees their per- both. acting sympathy sons them, in and concert with 5. This ordinance shall take effect City; passage. its final exercising any personal From 1st, 2. re- April Introduced plaintiffs 15th, except over the straint such right so far Adopted April as restraint accordance with Beggans John right of search and seizure Fagen Michael I. removal as speedily as rea- arrest Arthur Potterton sonably possible judicial before a officer Quinn William B. law, existing Hague Frank Commissioners plaintiffs interfering 3. From with Dated, City Clerk’s Office free access to locomotion their 21st, Jersey City, April streets, highways, thorough- on the Holland, City Edward Clerk. places fares, Jersey City ex- parks J. cept in far as such interference is in so DAVIS, Circuit Judge (dissenting search of “2” accordance part). seizure, as stated No. above. etc. objection, I is no serious There un- regret It with that I feel constrained it, part if to this of the decree derstand it to dissent in from the conclusions of not to interfere with what construed is generally my colleagues. accepted everywhere legiti- The first conclusion from which I dis- police officers detectives. work mate question presented sent is that of the B., enjoined the court the de- Under this appeal. say They that it is “whether : fendants certain fundamental civil liberties interfering safeguarded by From with the the Constitution of thoughts right to communicate their pro- United States shall be tected observed and persons and about stand to shall there parks thoroughfares, abridged”. streets, highways, “begs ques- statement This places except “(b) refusing withholding in as Jersey City so far From to or plaintiffs any in with from the them such interference is accordance .said or seizure, applications permits as herein- any right of search and etc. for said above, except paragraph provided protection above meetings such at said stated plain- upon necessary of the bearing has no or assemblies as- is to public meetings; speak plaintiffs any secure them tiffs to to said or opportunity meetings to hold such plaintiffs with interfering 2. From interruption interference from or without by them circulation or distribution in the in persons may present such at said be streets, City Jersey public etc. of meetings provided protec- only that such handbills, circulars, any writ- or pamphlets, ten or reasonably tion is with abili- consistent whatsoever; provided printed matter ty carry of the defendants out etc., circulars, in pamphlets, that no obligations regard safety in “obscene, pubic morals respect offense to provided residents of fur- conduct” and advocacy of unlawful or an duty ther defendants of the in out is carried distribution “that their protection afford holding such to the the maintenance with manner a of ly consistent may meetings such or assemblies as involving disorder- and not public order necessary may peaceful for their continuance the inhabi- conduct, the molestation be terminated or conduct words littering of misuse or the or tants plaintiffs any of the or of them viola- * * * ”; streets of existing tion law. plaintiffs' interfering with the 3. From' “(c) continuing From their hereto- public displaying on the or carrying expressed permits fore grant refusal City placards, signs streets, etc., Jersey Congressman Maverick, Congressman matter whatso- printed any written or or O’Connell, Congressman Allen Morris not obscene ever; provided matter such Ernst, Congressman O’Connell, L. carry- public morals or Roger Baldwin, Carney, N. William A1 orderly J. and without placards is ing of Barkin, up- Sam Macri and Kiesler John inhabitants to the molestation City applications on dated December 17 and streets, littering etc. and without 23, 1937, respectively, and from continua- respects, three is in these The decree tion of expressed their heretofore refusal “B.”, there is no real proper and grant speakers those said named all The léarned trial objection to it. so far rights the paragraphs set forth in preceding two only his judge devoted .small injunction. of this for decree point. up decree to this opinion to the is concerned in this case “(d) contest From refusing plaintiffs real (b), (d) in which (a), (c) and with B. 4. any rights or of them the forth in the set enjoined defendants as fol- the court paragraphs three preceding of this decree : lows injunction for in so far as such sought meet- Meetings: Public “4. any ings public streets, on of the highways, any previous placing re- “(a) From thoroughfares places City or of the of Jer- any manner what- or straint sey City (other public parks) than indirectly directly interfering or soever unless and until the acting defendants any plaintiffs or of them in re- with the capacities adopt their official and enforce holding- meetings or as- spect to the policy the deliberate ings of forbidding meet- open parks dedi- semblies in the air any kind any purposes general cated recreation of streets, highways, thoroughfares places or public provided that an City provided application hold such meet- plaintiffs of them plaintiffs by or on behalf of'said ings meetings public Streets, on the to hold days has been made three any of them highways, thoroughfares places provided of such advance .City subject be held to a permit may be refused further that interpretation by the defend- reasonable only of them these acknowledged place ants easement particular time or reason that passage pub- over said application reason- designated in streets, highways, thoroughfares lic with the recreational able conflict purposes City.” places of parks. the .so-called 116 A. Chief Gum ordinance5 and The Justice Jersey, R.S. mere law as follows: declared the statute of New “Home Rule” pursuant to seq., N.J.1937, 40:42—1 et city “The of a common streets are passed, are was ordinance which the highways, primarily designed for use .the assumption that the upon the grounded public passing repassing and in belong parks of streets temporary is inci- occupancy in such city, or state and it exclusively to the rights. of No dental the exercise those to by the has been authorized in far as it so public justified obstructing a one in so, or not may say whether state to do large by collecting therein as- street a may be held meetings parades public or semblage people purpose for of of the, parks or in streets com- delivering address The to them. City has That what conditions. highways not de- mon the state in the settled authority has been such public signed holding for purpose Massachusetts, Jersey, New courts of therein, who at- one oí other Pennsylvania, of Illinois this, tempts having to first ob- without do courts. states, federal permission public authori- tained from highways commits charge ties in of such Burlington v. Inhabitants In public The constitutional a nuisance. 259, 261, Co., N.J.Eq. R. 56 Pennsylvania speech no more au- guaranty liberty said: the court 38 A. appropriate his thorizes a citizen to to public course, is, that true “It property of communi- public use a own concerned, is sub as it is rights, so far exercising guar- ty purpose for the streets. over legislative ject control to in in- permits occupy him to anty than it au legislature can public, the As to the property a fellow private vitum in of a street abandonment thorize purpose. In order same citizen private to a toto, it in over or turn enjoyment protect public in full to legalize the may enterprise. therefore It city streets, municipal authori- transversely railroad operation of a steam seeing power of with the ties are clothed highway. along a longitudinally or over or unnecessarily enjoyment is not that such however, authority, must legislative and, with, in the exercise interfered terms, or must express appear, in either steps power, to all. reasonable to take pow necessary implication a flow as prevent such interferences.” v. Warren expressly granted. ers State Casey, In of Thomas case 121 v. Co., Dutch. 29 353 Railroad [5 N.J.L. 1 A.2d Mr. N.J.L. Justice Delaware, ; Newark v. Lackawanna 353] and Bodine, in opin- an able and well-reasoned Co., 42 N.J.Eq. Railroad Western 196 said: ion 123; 196], 7 A. Hoboken Stew. Land [15 “He has no more to [Thomas] Hoboken, Co. Improvement & N.J. places in speak city, in that grant 205], pow L. 205 Vroom [6 parks, highways permit without may directly er made the legisla be he has invade than a home citizen’s ture, may delegated govern be or it invitation.” without municipality. ment of a be con city, in the tained the charter of a in char Davis, In Commonwealth v. 162 Mass. railroad, or' general ter of a a statute.” 510, N.E. Am. L.R.A. Trembly, 173, St.Rep. spoke Davis on the In Harwood v. 97 N.J.L. permit investigation passage when, alter all of “1. From and after pub- pertinent ordinance, parades or the facts and circumstances assembly application, prop- upon public streets, said he believes it be lic or thereof; public parks pro- highways, er to or refuse issuance build- place vided, permit ings however, said shall take or shall only pre- permit until shall be refused be conducted ob- venting disorderly riots, from the Public disturbances tained Director of Safe- assemblage. ty. persons Safety Any violating person “4. Director Public “2. provisions grant hereby empowered of this shall authorized upon magis- parades permits assembly, conviction before and imblic Jersey Oily pun- upon application him trate of made least exceeding prior parade days proposed ished a fine not two hundred three assembly. imprisonment dollars the Hudson period exceeding Safety County Director for a “3. of Public Jail ninety days hereby to issue both.” authorized to refuse possessed by plain- vio- ticular Boston Common without ordinance, common, tiff in error use city Mr. lation of Justice reason, therefore, said: conclusive of Holmes controversy presents, en- which the record “There is before us no evidence tirely power aside from the fact legislature power of the show that conferred chief executive officer power over the common is less than its Boston the ordinance park to the use over dedicated question may fairly claimed to a be be streets, public, public or over mere administrative function vested in 'the city or legal title to is in a town. which mayor in to effectuate order 578, 580, Boston, 148 20 Lincoln v. Mass. for maintained which the common was- 257, Am.St.Rep. 12 N.E. 329 L.R.A. [3 regulated.” and its use which was public, it representative As 601]. may many This case has been in followed and does exercise over control inferior courts. Mutual Film Co. federal public may of such use which make D.C., Ohio, v. Industrial Commission of places, delegate may does more and and 138; Orleans, 215 F. Lutz v. of New town less of such control to the 978; D.C., Community 235 F. Chautau- immediately legisla- For concerned. 893; quas D.C., Caverly, Lane v. 244 F. conditionally to absolutely forbid ture Whitaker, D.C., 476; v. v. 275 Buck public F. highway in speaking 197; D.C., Kuykendall, Capital 295 F. park infringement is no an more Cermak, 608; D.C., Taxicab Co. v. 60 F.2d rights of a than member Shaw, D.C., F.Supp. 112. v. 6 to it Sullivan private house forbid the.owner in his house.” specific point presented here absolutely settled in the Davis case In reviewing (Davis that v. Mas- case law, if the law there declared is still the sachusetts, 43, 733, 731, 167 U.S. 17 S.Ct. here involved it is conclusive of the issues 42 71) L.Ed. hereinafter called the Davis this have District Court court case, appeal Supreme Court of Supreme overruled Court. This States, the United Mr. af- White Justice ways: in both seek avoid two firmed the court as follows: Massachusetts state of thority to determine finding of the stances defiance U.S. 677]), creating 721 lations (B U.S. Giozza v. proper 5 power ment 6 legislature, mode and in ed States S.Ct. St. error to use the “The the citizen to use that there was no “It is greater power state. [37 arbier ^[*] 26, to use [180], Louis [U.S.C.A.] 357 Massachusetts, being L.Ed. of the constitution and laws of 29, prescribe. the constitution of the subj therefore Tiernan, in ^[*] particular does [28 Railway 9 necessarily use v. its ect to states court 599]; S.Ct. Connolly, L.Ed. subjects wisdom, may ^[*] not contains the may common absolutely 148 does such conclusively to enact 207 under what circum- Co. v. right have the effect of Jones 923]; Minneapolis be availed ^[*] U.S. last fourteenth amend regulations includes the au- and so it within not [32 282 personal in the except Beckwith, resort v. 657, police regu ^[*] property L.Ed. destroy exclude all lesser. Brim, [41 their control determin 13 S.Ct. plaintiff in such deemed of the meant United of, L.Ed. 585]; right par- 165 129 as cisions that case jority avoid the he did. that no but validity, tinction without case no announced. the Davis case void On dinance in the out merits its face preme later distinguished that case fact, They trying They say 58 S.Ct. in but that cases has opinion this Court changed, and declared application application application Davis case was delivered more seek Lovell v. attempted has discussed the difficulty which says case there was. This is a it did not even event thought that get been shows that from Davis case was Supreme that by the fact “modified” distinguish overruled. The and Davis with a difference”. The Su- around the Davis was made for was entitled to test was made “modified” in later de- Griffin, distinction does so L.Ed. case Supreme questions Court. The ma- little law. Davis case and law declared this court had this case from the law there at bar can be mention that “modified” that void, If the Davis U.S. a permit, Court ,the on their opinion in that the or- it was with- “dis- case fact its in nature, very danger court involve no other ago forty years than peace security “modi- and to been the State. has the law has found every They peace changed, threaten breaches of way but fied” or con- federal, has ultimate revolution. And immediate court, state danger judice the less real sub none and substan- question the identical sidered tial, given the law because the of a effect utterance case relied has accurately cannot be foreseen. The State announced. cannot reasonably required to measure case the Davis says that This court danger every such utterance in Git cases of “modified” has been jeweler’s nice balance of a scale. A 652, 45 S.Ct. York, 268 U.S. New low v. single revolutionary spark may kindle a Kansas, 274 1138; v. Fiske that, time, fire smouldering 1108; L.Ed. sweeping burst into a con- destructive 353, 57 S.Ct. Oregon, 299 U.S. Jonge v. De flagration. cannot the State Minnesota, 278; Near is acting arbitrarily or unreasonably when 1357; 625, 75 L.Ed. 697, 51 S.Ct. judgment exercise of its 444, 58 S.Ct. Griffin, 303 U.S. Lovell v. necessary protect measures “modified”, 666, A case 82 L.Ed. 949. peace safety, it extinguish seeks to by nec expressly or changed overruled or spark waiting without until it has en- essary implication. kindled the flame or blazed into the con- line, even or word not There is flagration. It reasonably cannot be re- modifying, expressly hint, those cases quired adoption to defer the of measures case overruling Davis changing or peace safety own its until so done they think I do not revolutionary utterances lead to dis- actual implication. necessary turbances of peace or imminent overrule de- repeal or a statute To danger and immediate of its own destruc- unpopular doc- implication an cision ; may, tion it but in the exercise of its The re- usually done. it not trine and judgment, suppress danger the threatened by the the Davis case cent references incipiency. in its People Lloyd, In su law as Supreme Court indicate pra, 23], p. Ill. (136 [505], N.E. [304 not and has stands down still there laid 512), aptly was it said: ‘Manifestly, Banton, 264 Packard v. “modified”. been legislature has authority to forbid the ad- 596; 257, 145, 44 S.Ct. U.S. vocacy of a designed doctrine and intend- Wilcox Trust Co. v. Title & Chicago ed to government overthrow the without Corporation, U.S. Building waiting until there is a present and immi- true that 125, 82 L.Ed. 147. danger of nent plan success of the ad- abridg- was in these cases the issue If vocated. compelled the State were speech, but freedom ment of the apprehended danger wait until the became authority for the cited as case Davis was certain, then its protect itself without a hint declaring law being would come simultaneously into doctrine implication that the or an government, overthrow of the when “modified”. case had been prosecuting would be‘neither officers case, indict- In the Gitlow Gitlow was nor courts for enforcement of ed, for criminal an- tried and convicted law.’ archy which advocates doctrine that present hold “We cannot stat- government organized should over- arbitrary is an or ute unreasonable exer- violence, force or or as- thrown police power cise State un- ex- executive head or sassination warrantably infringing "the freedom of thereof. The officials defendant ecutive speech press; must and we sus- do against crimi- contended that the statute constitutionality.” tain its U.S. [268 anarchy nal in contravention of the was 45 S.Ct. 631]. process due clause of Fourteenth Supreme judgment Court affirm- conviction af- Amendment. was opinion judgment ed the and' in its said: instead modifying firmed and law case, this Davis case rather affirms inciting to “That utterances the over- it. organized government by throw of un- means, danger Kansas, present lawful sufficient Fiske v. punish- to bring of substantive evil a case was indicted, tried, range legislative ment within Fiske was con- dis- in which cretion, utterances, violating is clear. Such stat- their victed and sentenced Syndica- Party nothing ute of Kansas Criminal at which unlawful was done advocated, process the doctrine that lism which is defined as violated the due violence, arson, crime, physical clause of the Fourteenth Amendment. advocates property, sabotage, or other motion was destruction of denied and he was convicted. means of unlawful methods as a acts or Dejonge offense for which was ends, political' effecting industrial or imprisonment convicted and sentenced to political effecting a means of revolution. years for seven assisting was the con- duct proved against meeting orderly Fiske was of a which All that was in which members in act that he solicited and secured unlawful was advocated cqmmitted. apparent, organization charged vio- His sole offense which was Act, Syndicalism was that he meeting lated the Laws took in a held Crimiúal auspices 1920, Sp.Sess., said: under the Kan. c. 37. The court of the Communist Par- ty. Syndicalism Act result is that the “The appeal, applied Supreme sustain On has been case to Court said: defendant, without conviction “It follows from these considerations any charge organiza- or evidence that the that, consistently with the Federal Con- advo- tion he secured members stitution, peaceable assembly for lawful any crime, violence or un- cated discussion cannot be made a crime. The lawful acts methods as a means of ef- holding peaceable political political changes or fecting industrial or proscribed. action cannot be Those who applied Act is an revolution. Thus assist the conduct such meetings arbitrary exercise the and unreasonable cannot be branded as criminals on that State, unwarrantably power question, score. The if the of free liberty infringing the defendant speech peaceable assembly and are to be process violation of the" due clause of preserved, auspices as to the not the Fourteenth Amendment. [U.S.C.A meeting which the is held but as to its Const.] purpose; as not to the relations the words, speakers, In other Fiske was convicted but whether their utterances any' without evidence whatever estab- transcend the bounds of the freedom of charged he speech lish the crime of which was which protects.” the Constitution vio- convicted. It was held that Griffin, In Lovell v. 303 U.S. process the clause of Four- lated due the 666, 669, S.Ct. 82 L.Ed. Alma Lovell teenth Amendment. was convicted in the Recorder’s Court of Minnesota, Near v. Griffin, Georgia, the and was sen- 625, 626, 75 L.Ed. involved a imprisonment fifty days tenced for suppress newspaper criticis- suit to a for payment default of fifty of a fine of ing alleged certain officials for the for distributing pamphlet dollars a crime, prevalence protection of on the magazine in the religious nature of tracts “malicious, ground that the criticism was securing permit, without a in violation of defamatory”. scandalous and The court provided a ordinance which held that under the circumstances of circulars, handbooks, distribution of ad- previous publications, case restraint of vertising, other kind of literature infringement liberty was an permission without first obtaining written press guaranteed the Fourteenth from Manager was nuisance Amendment, but the libeler remained civil- punishable an offense ly criminally responsible for his libel. City. Superior County The Court Supreme refused a review and the Court Jonge In the case Oregon, of De v. Georgia application an denied for cer- indicted, tiorari. Dejonge tried was and con violating Syndi victed for the Criminal There was no restriction appli- Oregon assisting calism Law of for in the cation ordinance with meeting conduct aof which was called .place. time ways “It not limited to .is auspices “under the Communist might regarded which as inconsistent Party, organization an advocating crimi public order, with the maintenance of syndicalism.” nal disorderly conduct, involving the moles- inhabitants, At Dejonge tation trial moved for the the misuse acquittal direction ground littering on the streets.” The court that, applied’ merely the statute as held to him “Whatever for motive which assisting adoption, meeting at a of the Communist induced its its character is such purpose. but as No been to its case has very foundation at the strikes that it passed cited for holding it that an ordinance subjecting press freedom safety, protection of a welfare censorship”. license city, administered, properly when is un- Minnesota, su- v. of Near The cases which constitutional. cases supra, and Lovell Oregon, Jonge v. pra, De majority opinion rests for modification resemble the nearly Griffin, supra, more case, declared do law Davis others. any of the than at bar case not even De mention case. In the direct were made in them contentions case, Jonge the Chief said: “None Justice safeguarded and challenges .to length our go decisions sus- Amendment by the Fourteenth guaranteed taining right of curtailment of by the Su- reached conclusions speech assembly Oregon free as the The Minne- inevitable. preme Court present statute application”. demands in its attempt suppress plain case was a sota a The decision in must the Davis case it criticised newspaper because included in “our decisions” mentioned in corrup- alleged protection officers De Jonge Accordingly case. when nothing was Jonge De case tion. properly ap- ordinance is punish a attempt to citizen than an more plied, it does not curtail of free imprisonment years for seven as- speech assembly free within mean- peaceful, or- sisting the conduct of a ing of the Constitution of the United meeting held under derly and lawful States and the Supreme decisions of the Party. auspices of the Communist Court attempt punish was Lovell case question The next whether or religious person distributing tracts Safety Director Public her forth tenets of faith. set authority abused the him vested in These the statutes ordi- cases and by the ordinance in permits denying nances, brought under which "were plaintiffs. In order to determine this way long case at bar. The are a question is necessary to know and con- here under consideration sider at least some the facts and cir- preser- protection and self passed for self surrounding cumstances course, his refusal. Of Sanford, quoting As Mr. vation. Justice fairly he investigate must all the Kansas, Mugler case of from the facts and pertinent circumstances to an said the in application and honestly must “believe it case, primarily “the is State Gitlow proper to be permit to refuse the issuance” of a in regulations required the interest judge of purpose “for preventing safety passage welfare”. riots, disturbances or disorderly assem- by Jersey of action, was state and its blage” or some of them. The facts and Griffin, supra, Lovell v. circumstances must be sufficient to enable adoption promulgation regula- was a reasonable man come to to that belief Jersey judg- which the of New state tions may before he refuse. required the interest in ed to be plaintiffs informed safety people. its the Director and welfare Roger Baldwin, N. purpose others, adopted express among for was was preventing speak meeting at the riots, they for disturbances disor- sought permit. Their application assemblage this derly the The had given been publicity wide right right great and a to do. deal state had agitation inherent self-preservation an function excitement had arisen this over proposed maintaining guar- “In “invasion” of government. this Jersey City by person fundamental others anty [of authority of the who were associated property] the State them. There- health, promote following letter safe- was laws to written to enact to ty, peo- morals, general welfare of the Director: its necessarily admitted.” Near v. ple is “Committee of Veterans supra. Minnesota, Any interference with Avenue, Bergen “921 press speech freedom City, “Jersey N. December J. Hughes As Chief incidental. Justice Casey, Department “Hon. Daniel of Public case, Jonge if the of free De City, Safety, Jersey N. J. assembly are peaceable speech and “Dear We understand Commissioner: question is not preserved, newspapers pending there is held, from meeting auspices under which you. per- application Legion, before now for ican Wars, Foreign Veterans of open public meeting Veterans, mit to hold an Catholic air War War Vet- Jewish erans, in this Veterans, Irish War Polish Amer- Veterans, ican War Veterans, Italian War “Among speakers listed for Veterans, Disabled War Reserve Officers Baldwin, meeting Roger one N. whose Association, Corps League, Marine Veter- published record was in this afternoon’s Wars, ans of Three Spanish United Amer- newspapers. In record we find a ican War Veterans. conviction a United States Court prison dodging draft sentence of and a resolution reads in fol- year County one in the Essex Peniten- lows : tiary. any We consider man convicted “Whereas, in his testimony before the thoroughly crime this to be Un-American Fish Congressional (Roger Committee he unworthy principles in his of receiv- N. Baldwin) testify force, did vio- ing any consideration the hands of at lence and murder resorted to Officials, least to the extent of government, overthrow of his testi- permission speak him granting this mony being as follows: public meeting. aat “The your Chairman: Does organi- hereby protest against grant- “We uphold zation of a citizen or Baldwin, ing Roger N. alien —it does not make difference members of the Un-American which —to advocate murder? irrespective group represents, he of what “Mr. Baldwin: Yes. meet- claim to be “The Chairman: Or assassination? ing. you 'that action We demand withhold “Mr. Baldwin: Yes. application. on this your “The Chairman: Does organi- delay requesting “The reason uphold zation of an American body that we wish to assemble at the citizen to advocate force and violence for Jersey City Armory Tuesday, tomor- the overthrow of the Government? evening, may pre- row we order that pare adopted by and have full “Mr. Baldwin: Certainly, mem- in so far bership Organizations advocacy all Veterans’ as mere is concerned. Jersey City, protest resolutions of “The uphold Chairman: Does it against allowing this ‘slacker’ or right of an country alien urge type, appear publicly Jersey City, his overthrow advocate the overthrow are devoted whose citizens to American government by force and violence? upholding principles and the of our Amer- Baldwin: Precisely “Mr. on the same ican Constitution. basis as citizen. prompt give “Please us a answer “The uphold Chairman: You do this letter. right of an alien to advocate the over- “Very truly yours, government throw by force and A. “Charles Peterson violence ? “Past State Commander V. F. W. Sure; “Mr. Baldwin: certainly. It is “William E. Malinka thing kind of country, healthiest for a Legion “American course, speech to have free —unlimited. “George Reilly A. “Whereas, Roger the same N. Baldwin “Adjutant, Jersey City Post A. L. leading is now the advocate of the C. I. “Davis N. Nimmo movement; O. and “Past Commander, Hudson Coun- “Whereas, O., ty, I.C. Legion permitting Amer. spokesman this man to be its “Louis F. stands Borgers ac- J. condoning cused of “Commander, Quinn his Post, Un-Americanism Amer- and leanings, Communistic Legion and the I. ican C. “Hugh O. should be condemned Kelly for its A. Un-Amer- * * * tactics, “Commander, ican Jersey City Post, they present Jersey City More sent to the than three Amer. met the next representatives passed Legion.” Director. thousand veterans of a resolution day, the Amer- Among of December which those to Daniel for such a “Now, Therefore, Be it refuse “Resolved that we ^[*] Casey, ^[*] permit, Director of deny ^[*] and be it Further ^[*] request application Public # th'e said Safety, ^[*] made Defense, “Resolved, our firm we now record International Labor Workers against allowing County protest League this opposition Defense Hudson associates to Rights. and his Communistic Committee for Civil slacker City,-whose citi- appear publicly in Jersey “Many Expected. Arrests principles American zens devoted to are participating “Those in the drive will tradi- upholding our American Jersey City given point. assemble in at a tions, and Further be it They city’s largest will march to then man con- “Resolved, we consider plants leaflets will be handed out. where evading draft of the crime victed Many expected arrests in view of the are prin- his thoroughly Un-American to be city’s prohibiting distribution any con- unworthy receiving ciples and leaflets. officials, public hands sideration at Carney, regional “William CIO direc- J. speak from especially drive, go tor and will leader City, and Jersey platform in streets Washington tomorrow confer with a organiza- consider that we also member of the Senate Civil Liberties Com- associated this man to permits tion Carney mittee. member of unworthy con- also them is with City Monday in Jersey committee will be officials part of sideration as an observer. right to given the they should not Hague.” for the “Showdown with our use streets Un-American spreading Communistic Carney added: * * * doctrines plans “Our for a showdown between Ameri- with affiliated Local unions I-Am-The-Law-Hague CIO been many others of Labor Federation can completed. go Jersey City willWe Director. protests additional sent organize peaceful manner. Whether trying possible had been this will be in the face of denials permits hold of civil secure in that I am sometime to unable to City say Norman meetings Jersey at which this time. Thomas, others Roger N. Baldwin County “Workers in Hudson have even Many speak. newspapers circulat- were to been denied the to strike. Police of Jersey contained statements ed in Jersey City stop picketing have tried to City by “invasion” of an intended injunction, easily without a court so ob- following instance, C. I. For O. County. tained in Hudson News, Evening appeared Newark organizers “When our enter newspaper largest in New stopped police, threatened and country: reliable in most one searched. The contents of cars are Prepared “CIO highway. strewn over At our organi- Invasion For zation even threaten the 3,000 Hague gotten workers wot attend. Drive to Be has Mass away Monday long. too Launched Acts “The of various of- very ficials well come within the scope prosecution and indictment the plans Jersey their invasion “Final Federal Government. Various com- acts completed night last New Jersey mitted officials are crimes organization A mass Jersey CIO leaders. Code, under United the States Criminal 3,000 representatives will be CIO drive punishable by heavy and imprison- a fine Monday afternoon as workers launched up years. to ten ment plants downtown area the leave city. 51 of “Section the code U.S.C.A. [18 prohibits conspiracy injure organizers per- to “Aside from field inter- § 51] unions, 28,000 rights. in sons exercise civil more than volun- Section national Wagner Act in an 7 says employees U.S.C.A. will leaflets area the [29 teers distribute 157] § Streets, join shall have the Jersey by Bay and to 17th bounded organizations 2,000 engage and to or assist labor City. more than Of number that in activities for mutual concerted aid and International will from the Maritime protection. Union. City, “Hague Jersey law in -organizations which will the send “Other country.” law Union, he not the of the Liberties groups include the Civil but say day, 27, 1937, ac- plaintiffs now that these same I December received such were.only headlines and counts communication written on behalf cer- .of papers City as the tain Jersey organizations Jersey numbers invaded Veterans’ ' may be, might be City, protesting against granting it stated. However of a responsible for pertinent permit Roger who was to ask to N. Baldwin or to pa- statements, represents, for such group members the headlines he are not pers Evening News meeting. Newark hold a The letter demanded in- unreliable publishing application. I I your in habit of action withhold did not copy Director attach formation letter the Veterans’ happen going to what was could not know this communication. informed evidently he who was not evening “On of December reported “invasion”. newspapers of the great in Ar- meeting mass was held seriously believing and justified in He was mory Jersey City, attended over newspapers said. considering what persons, whom were thousand all of three meeting At veterans. resolution Jersey in newspapers circulated opposition passed against granting was of Nor- pictures City at this time carried permit. was Violent disorder com- other socialists Thomas and man on the of the veterans threatened May Day Celebration munists at meeting was held. Announce- case communistic City giving York New floor —and ments were made from the the Inter- singing clenched-fist salute and approval had announcements these nationale. meeting I should refuse to if —that only part what things show These protest grant- a the Veterans’ honor permit Jersey about going on meeting, would the Veterans tendency excite had the All of this own hands and take matter into their excite, inflame incite and did doubtless meeting would be broken see to it especially the City and Jersey people of copies pa- you local up. I refer situ- á serious had The Director veterans. City, give an account pers Jersey which re- contend. which to ation copy meeting. I enclose a also He was upon him. sponsibility rested passed by Veterans at the resolution permit every hand to refuse urged on meeting. Finally after violence. threatened Commerce, repre- “The Chamber of circumstances facts investigating the senting business interest wrote the he application, pertinent to the City, gone against have on record letter, on December following granting permit. of this refusing attorney body Central Labor of Hudson “The .permit: County gone against has on record Safety' Public “Department of permit. granting of this (cid:127) City Hall opposed bodies of citizens “Other have City, N. J. it, and individuals of influence in the com- 30, 1937 December munity protested me Street, Frazer, Broad Esq., 744 “Spaulding meeting. holding of Other facts and Newark, New pertinent your meeting, circumstances hereby your letter answer I “Dear sir: your herein called addition to those to me as addressed of December attention, convince me that granting Safety, you which Public Director permit you request lead would application for a to hold make riots, disorderly disturbances and assem- City, meeting open air blage. you, according to be address- meeting’will, “Therefore, hereby I refuse to issue O’Connell, Jerry Roger by Congressman ed open permit for an air meeting request- Carney, Barkin, Baldwin, Al. William N. J. you your 27, letter ed of December Kiesler. Macri and Sam John 1937, my refusal is for the your letter, you receipt of I sent a “On riots, preventing disturbances and dis- communication, 27, 1937, dated December orderly assemblage. you would, I I that in which informed “Very truly yours, ordinance, prompt make required in- Casey, “Daniel Director” the facts and circum- vestigation of all permit your application refusal of the pertinent before The was a minis- stances refuse on the of the deciding grant whether or the terial Director and act permit requested. grossly On the unless abused discretion he issuance in tiou authority vested under similar which the ordinances circum- stances, him, has should not be reversed said the his action Director’s and not the substituted court’s. judgment court 347, j Thompson, 74 U.S. his. Gaines forgotten have plaintiffs not Fisher, 62; Ness v. 19 L.Ed. Wall. 223 charged that the officials of 610; L.Ed. 32 S.Ct. influenced and intimidated the owners of McAdoo, 234 U.S. Louisiana v. private against halls so that 1506; S. ex U. they meetings; would not rent them for Worker. Rives, rel. alKl tip they further that incited and stirred 561; Co. v. & Gamble Proctor organizations protest tlie various Coe, App.D.C. 96 F.2d against granting permits meet- denied, ings. New Supreme All of Court this the defendants supra, case, lie in the Thomas found The learned judge trial who saw all authority, or his discretion had abused not atmosphere the witnesses inwas opinion Bodiue who wrote Mr. 0f trial for weeks refused to find that Justice said, Public “The Director of in that case charge evidence sustained people he temper Safety knows the officials of and in- influenced City and represented Jersey (imidated He serves”. private the owners of He halls. disorderly riot, asscm- or if disturbance a aiso refused them had find or granting had blage resulted or up people incited stirred responsi- permit have been would protest. court, to rilling Yet this in effect over- ^the this New ble. subject Statute of learned judge, trial and in the provides that: face of the of counsel statement for the plaintiffs, arguing case, when this who, by “Any person reason of mob Mayor Hague was one of most honest and stated sections violence as defined stand, witnesses he had ever seen on the title, ma- to 2:152-3 of this suffers 2:152-1 defendants, found that notwithstand- injury property damage to his or terial ing Mayor’s denial, “endeavored to against person shall have action to his tip dangerous situation, build a one in damage is suffered city in such which sympathizers appellees could inflicted, or, city, if not then injury or against safely speak” not though it had seen never damage county which such or single testify, heard a witness injury inflicted for or suffered sustain, to an amount damages as he permits, told, Thousands of we are Re- dollars.” exceeding five thousand not past, Werc issued but the Director Jersey, 2:63-10. of New vised Statutes permit plaintiffs. refused to issue a This alone shows discrimination in the ordinances, or similar statutes Under opinion court, of this but this a non many municipalities states have been sequitilr. The facts and circumstances damages large caused held liable for meeting under which a is to be held de assemblages, disorderly mobs, riots and permit termine whether should issued Apex Hosiery Company is Right now the or refused and whether or not discrimina Philadelphia for more suing the practiced. tion been The Director has than, $3,000,000 damages resulting from may grant permit one and refuse another riots, disorderly disturbances or asscm- day “any denying person” without same honestly administering In blage. dinance, or- this equal protection athe of the laws” as re say any degree who could quired by the Fourteenth Amendment. If certainty that as the result the issu- of anee of tlle Director grounds had reasonable to be permit question, mob, riot meeting heve that the for which he re disorderly assemblage would not have fused would have resulted damage and that considerable occurred i'iots, disorderly disturbances or assem persons property or both would not blage, these, one of and that those judgment been done. Whose granted permits. for which he followed, was to these circumstances not, would refusal did his not discriminate Director’s, District Court’s “any person”, deny him “the says The ordinance the Dircc- court’s? equal protection of the laws.” Supreme Court of New tor’s. Supreme Director’s. We do have in this case the Court naked question speech States in the Davis of the of free United case free every assembly meaning other court within the 'Director’s of the Consti- country ques- which has considered the tution of the United States. issue 808 primarily speech all, timely here is not free but and appropriately challenged, as plaintiffs seeking are to make it such. was bar, plaintiff done case at support We have here a of individuals number must allegations by competent organizations proof. which have combined and ju- burden establishing masquerading flag are free under the of issue. risdictional facts plaintiff on the speech though throughout this were the sole litigation. KVOS, Inc., v. Press, 269, Associated 299 U.S. 57 S.Ct. primary question If the were here 197, 81 L.Ed. 183. This the did the speech, maintenance of free defense not do. There is not showing a word of the United States Constitution pecuniary value rights of which principles upon or the which democracies they complain they deprived founded,' anyone are can doubt where these finding of fact as to this was a mere value protesting organizations American —The guess. Wars, Foreign Hud- Legion, Veterans of However, I think that the court had County Legion, and son American others— jurisdiction 24 (14) section Many men would of these stand? Code as this court found. very service risked their lives in the Judicial democracy country, safe “to make The decree of the District Court should world”, speech, the 2, free 2 1, 3, 1, defend affirmed A. B. as to 3, States and Constitution of the United but reversed as (a), (b), (c) to B. 4 principles upon which democracies (d).

built. Dis- contend that the The defendants - jurisdiction in was without trict Court contrary, plaintiffs, on case. say jurisdiction under sections it has Code, (1) (14) 24 24 Judicial was aver- 41(1, 14). This 28 U.S.C.A. § bill. paragraphs red in 6 and 7 of the DAYTON RUBBER CO. et v. MFG. al. suit alleged paragraph 6 that this STAGNARO et al. nature, equity, arising under civil No. 6934. United and laws of the the Constitution Appeals, Circuit Court of controversy Sixth Circuit. States, in which the amount $3,000 interest Nov. 1938. exclusive of exceeds based allegation was costs. This Rehearing Denied Feb. 1939. (1), (1) Sec. 28 U.S.C.A. Title § Code. Judicial Did the value of the civil plaintiffs alleged they which the were de- prived $3,000, exceed exclusive of interest and costs? allegation There is as to the value except of these the bald statement $3,000. course, exceed Of as the majority opinion says, actions, in tort case, jury proper in a when the damnum laid, sufficiently may exemplary award damages which be added to the actual damages up suffered in order to make Edmunds, jurisdictional Barry amount. v. 729; 116 U.S. S.Ct. 29 L.Ed. Donald, Scott v. plaintiff Where jurisdictional good claims the faith amount Toulmin, Jr., Dayton, H. A. Ohio sufficient, traversed, damages, it is if not Toulmin, (H. Jr., A. Toulmin H. A. jurisdiction. Wiley give v. the court Ohio, Dayton, brief), on the both appellants. Sinkler, 179 U.S. Smith, 84; 27 S. Smithers Allen, Cincinnati, Ohio, E. S. where 51 L.Ed. 656. But Ct. Clarkson, Washington,

sufficiency Edwin D. C. jurisdictional amount is of S..

Case Details

Case Name: Hague v. Committee for Industrial Organization

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 26, 1939

Citation: 101 F.2d 774

Docket Number: 6939

Court Abbreviation: 3rd Cir.