*1 HAMPSHIRE. v. NEW POULOS April 27, 1953. February 3, Argued 1953 . Decided No. 341. *2 and filed a Covington argued the cause Hayden C. for appellant. brief Tiffany argued appellee. M. the cause for With
Gordon Wyman, Attorney Louis General him on the brief were C. Dowst, Jr., Henry Assistant At- Hampshire, of and New Tiffany, Attorney Mr. then General of torney General. Opposing was also on a Statement Hampshire, New Affirm. and a Motion to Dismiss or Jurisdiction opinion Mr. Justice Reed delivered the of the Court. appeal presents validity This conviction appellant conducting religious for services required without a park Portsmouth, Hampshire, New when for the license had been license, proper application arbitrarily City and refused Council. unreasonably depends prin- upon The conclusion consideration of state against secured First Amendment ciples Fourteenth.1 by abridgment Permission Jehovah’s Witnesses. one of Appellant deceased, now Witness, another appellant for on June Park Goodwin services to conduct sought all fees and proper They pay offered to July requirements procedural with the complied charges, When the park. to use the obtaining permission held nevertheless May 4, appellant was refused license until arrested. them and continued services planned ordinance city § with violation charged He was Municipal Court On conviction set out below.2 him to an which entitled appeal and took $20 he was fined Court. Before Superior before the trial plenary *3 on the complaints moved to dismiss appellant trial 1 State, 147, 160. v. Schneider Constitution, First Amendment: of re-
“Congress respecting no an establishment shall make law abridging thereof; ligion, prohibiting free or or exercise people peace- speech, press; or the freedom of or of the of ably assemble, petition for a redress and to the Government grievances.”
Id., Fourteenth Amendment: abridge any shall
“. . . No State shall make or enforce law which States; privileges or of nor immunities of citizens the United deprive any life, liberty, property, or person shall State of process law; deny any person juris- its without due nor within equal protection diction of the laws.” 2 Required. rep “Section 22. License No or dramatic theatrical performed parade proces shall or resentation or exhibited and no upon any public way, open public meeting sion street or and no air upon any ground abutting permitted thereon shall be unless a license City therefor shall first be obtained from the Council. Every 23. License
“Section Form. such license shall be in writ- ing specify day permit perform and shall and hour of the exhibit, parade, procession open public meeting. or of such or air 24.
“Section Fee. The fee for such license shall be not more day perform than Three Hundred shall Dollars each such licensee was unconstitu- applied “the ordinance as ground on the constitutional This motion and void.” tional trans- practice, Hampshire to New pursuant question, it had on a ruled, Supreme Court. ferred to the of an identical under a different clause prosecution former statute, Hampshire a New far as section, pertinent, so Cox, A. 137, 143, H. 2d Cox, 91 N. against one State that: 508, 513, authority [city in
“The discretion thus vested the bounds of is limited its exercise council] upon of method of treatment reason, uniformity application, improper free from the facts each and from unfair dis inappropriate considerations just A consistent systematic, crimination. treatment, order of with reference to the convenience man highways, statutory use of the is the authority delegation has no licensing date. The power legislature granting of that which the excess legislature attempted has and the to dele power possess.” no it did not State v. Derrick gate power son, 91, 93, 312, 97 N. 81 A. 2d H. v. New Hampshire, Cox U. S. we affirmed on
appeal Hampshire from the New conviction of Cox, acknowledging usefulness, p. 576, of the state court’s carefully phrased interpretive limitation on the licensing authority. Supreme Hampshire Court of New went on to hold the challenged present prosecu- clause *4 tion in valid also these words:
“The issue which this presents case is whether the city of prohibit Portsmouth can religious and church or parade, procession, open public meeting exhibit or such air place, any shall take but the fee for a license in to exhibit hall shall Fifty not exceed Dollars. Penalty. Any
“Section person, 25. who violates section of Twenty Article shall be fined Dollars.” li-a Sundays under Park on in Goodwin meetings groups religious all treats which censing system prohibit could city manner. Whether the same doubtful parks is a in all of its meetings religious in this case. not decide we need which question of its one city may take is decide we do What nonreligious and public it to and devote parks small fairly is administered system under purposes H., at 97 N. bias or discrimination.” and without A. 2d, at 95, 81 discharged the case. it
Thereupon now here open the case this action was The result of of the At the conclusion for trial. Court Superior in the a motion to issues raised federal evidence, appellant Superior out below.3 The set complaint dismiss It held that Cox raised. the issues passed upon Court validity determined Hampshire, New attack; under ordinance the section city undisputed shows that the members evidence 3“1. The capriciously arbitrarily, and city council itself acted council and the they of fact denied support of law and when deliver of the defendants to in behalf witnesses made Jehovah’s question. public upon the occasions talks question is park undisputed evidence shows “2. in the deed limitations public park, as such without dedicated City of Portsmouth and ordinances of the of dedication park legal right talks in the to deliver the had the the defendants city duty to issue to the defendants and it was the council meetings park public permits question to use the public talks. applied justify so as con- If the ordinance is construed
“3. ease, then the under facts in this victions of the defendants applied because it as construed and ordinance unconstitutional assembly, abridges rights freedom of freedom of the defendants to contrary worship, Rights freedom of to the Bill Hampshire Fourteenth the New Constitution and First and Amendments to the Constitution of the United States.” *5 City
refusal licenses the Council was arbitrary unreasonable, but prosecution refused to dismiss the on that ground because: respondents have question
“The
could
raised the
right
their
speak
licenses to
Park by
Goodwin
proper civil
they
but
proceedings
Court,
chose
to deliberately
violate
ordinance.”
On appeal,
Supreme
Court of
Hampshire
New
affirmed.4 It held the ordinance valid on its face under
Cox New Hampshire,
Appellant’s challenge on
grounds
federal
to the action
and conclusion of the New Hampshire courts is difficult to
epitomize. By paragraph
of3
his motion to dismiss, note
3, supra, appellant
relied on the principles of the First
Amendment for protection against
city
ordinance.
his statement of jurisdiction, the question presented, No.
I, the illegal denial of
his
for a license, was
urged as a denial of First Amendment principles.5 In his
Poulos,
State v.
97 N. H.
“Does the construction and of the ordinance and the Hampshire require appellant apply law of New so as to for a writ only of mandamus certiorari as the remedies to correct the uncon- ordinance, deny administration of stitutional and also so as to prosecution the defense the criminal the construction and by City of the ordinance Council was in violation of rights guaranteed by Constitution, his the federal amount to an abridgment speech, assembly worship contrary of freedom of to the First and Fourteenth Amendments to the United States Constitution?” con- constitutional the latter part as
by appellant later indicated as holding, our disappears tention of the ordinance clause challenged opinion, following judi- for requirement Hampshire’s and New This arbitrary are valid. refusal remedy for cial applied as on the ordinance showing an attack analysis Amendment First principles repugnant Hamp- New validity by the of its and a determination jurisdiction us to take requires Supreme Court shire e., i. the failure affirmance, ground The state appeal.7 de- refusing license, from the action to take certiorari constitutionality of the ordinance. pends upon *7 constitutionality require- of the the First. We consider before city from must be that a license the obtained ment Park. Our con- religious exercises Goodwin conducting limita- interpretive into consideration the takes clusion Cox, p. at 398 of quoted from v. repeated tion State interpretation though is as opinion. this This state York, v. New into the itself. Winters written ordinance uniform, nondiscrimina- requires 514. 507, 333 U. S. of granting administration of the tory and consistent meetings public ways on streets or public licenses for thereon.8 The park Park, abutting such a as Goodwin Supreme Hampshire of the Court of New do opinions two precise opportunities not state in words that reasonable property public religious meetings public for or other on granted religious must be under this ordinance to such ap- the former organizations as Jehovah’s Witnesses. peal controversy case, supra, of this the Derrickson New decided that Hampshire city exclude, could discrimination, religious meetings Park, all from Goodwin
7 Mfg. King Augusta, Texas, v. Co. Jamison v. 100; 318 appeal postponed U. S. 413. When the was docketed we determina jurisdiction appeal hearing tion of to the on the merits. 28 (5). (2); Supreme Court, U. S. C. Rules of the No. 12 § Derrickson, State v. 91, 94, 312, 97 N. H. 81 A. 2d there several, among park, that one leaving desired, if it so religious for advantages unique its showing of no being contemplation quietness, for retreat as a meetings, refused Court Supreme The activities. nonreligious other excluded be meetings could religious whether determine decided not been has That all times. at parks all from with trial witnesses Informed appeal. in this serv religious no that testified out contradiction park. Portsmouth licensed ever were ices religious between parks of no allocation was There re held Court Superior meetings. nonreligious Ob unreasonable. arbitrary and this license of fusal prepublica of kind not the required license viously of time liberty since of denial deemed license tion adjust routine police ministerial, but Milton John for effec opportunity so citizens rights ing there While preserved.9 may freedom tive its ordinance invalidity no assertion validity determined Court Supreme face, Bon v.Co. Dahnke-Walker See applied. ordinance Alderson, Assn. 287; Charleston 282, durant, S. 257 U. conclude only canWe 185-186.10 S. 324 U. Hamp New Court Supreme decisions these now and, as is valid the ordinance held has shire *8 “A 9 at 282: 268, concurrence S. Maryland, 340 U. v. Niemotko the authority censor to gives official an licensing standard terms, by its limited one toto cáelo differs of a content safety public to considerations nondiscriminatory practice, by like.” and the 10 as well transfer, this by on the defense been conceded “It has It is face. on its is valid ordinance one, the first as on the valid in construed that was with the statute language identical Hamp v. New in Cox was affirmed 137, which H. Cox, 91 N. State applies ordinance the disputed that is not S. 569. shire, 312 U. meetings question. open air the scene of was park that ordinance to made to objection has been No exception taken no meetings place, and took where areas written, it made obligatory upon grant Portsmouth to religious license these services in Goodwin Park. The appellant’s contention that the Council’s application of the ordinance as to so bar all religious meetings in Good- win Park without a license, made the ordinance uncon- stitutional, was sustained the Supreme Court of New Hampshire. Appellant’s brief, p. 3, continues the claim in this Court as follows: exception
“This
presented to the Supreme Court
of New Hampshire the question.
It is whether the
ordinance as
enforced
City
Council, under its
policy to
religious
refuse
meetings in the park, was
a violation of the federal Constitution.”
By its construction of the ordinance the state left to the
licensing
no
officials
discretion as to granting permits, no
power to discriminate, no control over speech. There is
no place
therefore
for narrowly drawn regulatory require-
any finding
ruling
respect
thereto.”
352, 354,
97 N. H.
860,
88 A. 2d
861.
“Again we call attention
fact
jurisdiction
if a
licensing statute is constitutional
applies
seeking
those
license,
remedy
provided
here
consists
proceedings
against
licensing
authority that
wrongfully
has
denied
license.” 97
H.,
N.
at
356,
2d,
88 A.
at 862-863.
Distinguishing Hague v.
O.,
I.C.
496,
U. S.
where a defense of
unconstitutionality was
prosecution
allowed in a
for holding
public
meeting without
license,
the State Court said: “Permits had been
refused for
meetings, but, unlike the
bar,
case at
prosecu
tions
contemplated
were
under ordinances that were invalid.”
H.,N.
356-357,
at
2d,
88 A.
at 863.
remedy
“The
of the defendant
Poulos for
arbitrary and unrea-
sonable
city
conduct of the
council
accordingly
in certiorari or
other appropriate civil proceedings.”
H.,
97 N.
357,
at
2d,
88 A.
This conclusion follows the rule in State v. Stevens, 78 N.
H.
269-270,
Lovell respect method to the comprehensive with ordinance is “The by hand or every ‘either It sort circulation covers distribution. respect application with in its There thus no restriction otherwise.’ regarded ways might be place; is not to time limited involving public order or as the maintenance inconsistent with inhabitants, or the misuse disorderly conduct, the molestation *10 the use of public parks, this has taken Court the same position. See the quotation Hague from the (be- case low) York, and Kunz v. New 290, U. S. 293-294; York, Saia v. New 558, 334 U. S. In cases, these the ordinances were held not invalid, they regu- because littering or of the streets. prohibits The ordinance the distribution any of any literature of time, any kind at place, and in manner permit City without a from Manager.” the considering required permit Hague O., v. I.C. 307 U. S. 496, Mr. Roberts, Justice considering gave an ordinance that the Safety Director of Public discretion park to issue permits, p. as of 502, wrote: “Wherever title parks may the of streets rest, they and im- have memorially held been in trust for public the use of and, the time out mind, of have been purposes used for assembly, of communicating thoughts citizens, discussing public between and questions. Such use streets places has, times, part ancient been a of privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use parks the streets and for communication of questions may views national regulated be all; interest of it absolute, is not relative, but and must be exercised in general subordination to the comfort and convenience, and in peace good consonance order; not, but it must guise regulation, of abridged be Pp. or denied.” 515-516. State, Schneider v. 160-161: “Municipal authorities, as trustees public, for the duty have the keep to their communities’ open streets and available for movement people of and property, primary purpose to which the streets are long dedicated. legislation So to this end abridge does not liberty constitutional of rightfully one upon impart the street to through speech information or the distribution literature, of may it lawfully regulate the using conduct of those the streets. For exam- ple, person could not exercise liberty by taking his stand the middle of a street, contrary crowded to regulations, traffic position maintain his stoppage to the traffic; all group of dis- tributors could not upon insist right a constitutional to form a cordon across the street and to pedestrian allow no pass to who did not accept a leaflet; tendered nor does guarantee of freedom of or press deprive a municipality power regulations to enact against throwing literature broadcast in the streets. Prohibition of instruction meeting and parks use lated refuse discretion complete left they because but heard “The officials. hands use in Chief discretion in the uncontrolled placed consistently have “[W]e at 560. S., 334 U. of Police.” such liberty since constitutional abridge the would such conduct speak, freedom relationship necessary activity no bears opinion.” information distribute write, print 296, 306-307: Connecticut, S. 310 U. Cantwell *11 slight inconvenience may at some be religion of exercise the “Even injury. With- from citizens its may protect the State in order solicitation fraudulent citizens its may protect doubt State out him permitting community, before stranger the in requiring a by identity and his establish to any purpose, solicit funds to publicly represent. to purports he which cause for the authority to act his solici- of manner time and regulate the to free is likewise The State or comfort safety, peace, public of the interest generally, in tation perpetua- the of aid for solicitation the condition But to convenience. grant which license, of the upon systems or religious views of tion authority as to what by state of a determination in the exercise rests exercise upon the burden lay cause, a forbidden is to religious ais by Constitution.” liberty protected of under religious parade, conviction, unlicensed for an considering ordinance, said: we to similar provisions with a statute imply Constitution, guaranteed liberties, as “Civil order maintaining public society organized of an existence unrestrained of the excesses in be lost liberty itself would which regulations in impose municipality to authority of a abuses. use people in safety convenience and to assure order civil with regarded as inconsistent been has highways never public of good safeguarding the of of the means as one rather but liberties travel The control ultimately depend. they upon which order of this rec- familiar illustration most is the of cities streets highways of the use restriction need. Where ognition social public convenience promote designed to relation in that attempted exercise disregarded all, be it cannot interest be entitled would other circumstances civil of some ignoring the familiar justified in not be would protection. One disobey duty to religious thought his it light he because traffic red direct means to by that sought municipal command or condemned licensing systems which vest in an adminis- grant trative official discretion to permit withhold upon broad unrelated proper regulation criteria public places.” S., 340 U. at 294.
There is no basis for saying that freedom order are compatible. That would be a desperation. decision of Regulation and are not the suppression same,12either in purpose result, justice courts of can the dif- tell ference. must We and do assume with the determi- nation of Supreme Court of New Hampshire that present ordinance entitles Jehovah’s Witnesses to religious hold services Goodwin Park at reasonable times, hours and the Portsmouth Council will promptly fairly their administer responsibility issuing per- mits on request.
Second. New Hampshire’s determination that the ordi- nance is valid and that the Council could compelled the requested issue license on demand brings us face face another constitutional problem. May this man be convicted for holding a religious meeting without a license when the permit required by a valid enactment —the ordinance this case—has been wrong- *12 fully by refused the municipality?
Appellant’s contention is that since the Constitution guarantees the free exercise of religion, the Council’s un- to an attention opinions.” announcement of his Hamp Cox v. New shire, 569, 312 U. S. municipality “If a authority has to public control the use of its parades streets processions, for or undoubtedly as it has, it cannot be authority give denied to consideration, without unfair discrimina- tion, time, place to and manner in relation to the proper other uses of the streets. We impossible say find it authority that the limited by licensing conferred provisions of the question statute in thus by construed the state court contravened constitutional right.” Id., at 576. v. Minnesota, 12 Near 697, 712; Breard v. Alexandria, 341 U. 641; S. First Amendment. defense complete ais the license to issue lawful refusal if he can that argument asserts His prosecution. because ordinance valid of the for violation punished be wrongful after speech, of free right his he exercised Constitu- of the protection license, of refusal refusal the Council’s by that objects He illusory. is tion until a postponed may be preach license, his of a final ad- this Court reaches years, after case, possibly Poulos takes rights. constitutional judication a license without speaking may he risk that position arbitrarily showing license by prosecution defeat withheld. arbitrary correction judicial that admitted
It must be under duties official to perform administrators refusal ap- But to allow costly. exulcerating and is laws valid to run permits required proceed plicants transport firearms, structures, purchase businesses, erect public hold inflammatory products, or explosives store take other safety arrangements prior meetings without peace breaches apt is to cause action unauthorized li- requirements dangers. The valid or create public. and the applicants good cense are for failures to act such official say unreal to that would be It judicial state redressable law, in accordance state the Federal Con- violative of are state acts procedures, expense unfortunate, but Delay is stitution. for life pay must citizens litigation price annoyance First Amend- rights where the society orderly in an saywe Nor can abiding meaning. real and have a ment sought must be redress requirement state’s due violates procedure judicial through appropriate process.13 proper states, proof of may some *13 is also It true is a defense.
and unlawful refusal sufficient following unlawful license, an punish activities without others 410 Virginia, 572; 116 S. Cant v. U. Royall is said Connecticut, 306, and Thomas 296, S.
well v. U. contrary Collins, stand as decisions 516, v. U. S. Royall In case judgment. Hampshire to the New the require two were involved. One laid down statutes law in attorneys practice ment that before could Vir license.” At ginia they special had to obtain a “revenue law enacted, Virginia per the time statute was paid coupons” mitted fees to be either “tax due license passed another statute money. Subsequently Virginia or Royall It provided which the case was concerned. only paid money license fees could in “lawful Royall coupons” the United States.” tendered “tax due for the amount of the had fee, refused, license them then Royall proceeded practice law without the license. McCarthy, 192, 287; refusal. v. Commonwealth 225 Mass. 114 N. E. Stevens, 268, 723; Carpet State v. H. 78 N. 99 A. Phoenix v. Co. State, City 143, 627; Montpelier Mills, 118 Ala. 22 So. v. 171 Ind. 175, 6; Gardner, N. 86, E. Commonwealth v. 241 Mass. 134 N. E. 638; Orr, City 101, 770; Flynn, State 68 Conn. 35 A. Malden v. 276, 61 parallel 318 Mass. N. E. 2d 107. A close exists between unlaw apply ground ful refusals and failure to for license on the that such application unavailing. would be Such a defense is not allowed. “It licensing ordinance, is well settled face, pro that where a valid on its person license, hibits certain conduct unless the has a one who without engages criminally prosecuted a license in that conduct can be being allowed to show that for a license would have unavailing. short, given been ... individual the choice securing license, staying occupation, or, out of the before he acts, seeking a review in licensing authority’s the civil courts of the refusal to issue him a license. Likewise in the case at bar the de given fendants are complying the choice of regulation, with the engaging regulated activity, or, they act, petitioning before appropriate civil tribunals for a exception modification of or regulation.” Slobodkin, United Supp. States v. 913, 48 F. 917. cited, particularly See cases Geiger-Jones Co., Hall v. *14 held money in payment requiring statute unconstitutional: on behalf contended, is this, it still
“Admitting for the unlawful it was that Commonwealth, the without profession his to practice in error plaintiff officers against the remedy was his license, and true, as doubtless It is to issue it. compel them it duty whose officer, the where rule, that a general duty so, to do license, refuses issue a is to complied applicant has ministerial, and the merely is the it, him to entitle the conditions with all to com- appropriate be by mandamus would remedy apply That rule would it. to issue pel officer wilful and officer was of the the refusal cases where he was com- which statute under contrary to different. the case is But here act. missioned to authority of on the is based the officer The action which, State, thé Assembly of of the General an act uncon- because void, may be null although it the color gives applicant, against as stitutional, of the officer to the conduct official character the election although and, refusal; his subjected might be the officer party aggrieved per- of mandamus to compel process compulsory appli- duty, nevertheless of an official formance part required on his everything done cant, who has law violating the as regarded cannot by law, wrongfully license formality of a if, without of his the business pursues he him, withheld which, itself, not which is unlawful calling, a constitutional circumstances, he has under error, plaintiff As to the right prosecute. Virginia of the State Assembly act of the General coupons, tax in its of his license forbidding payment by protected that tax a contract receivable for States, unconstitutional, Constitution of the United unconstitutionality and its infects and nullifies the legislation State, antecedent it be- part, applied, case, comes a when to enforce against party, an unconstitutional enactment only fault, seeking merely but to exercise secured to him the Constitution. . . .
“In present case the in plaintiff error has been prevented from obtaining a license practice his in profession rights violation of his under the Con- stitution of the States. him punish United To practicing it without a license thus withheld is equally a denial rights of his under the Constitution States, law, United and the authority under the of which this is attempted, must on that account and regarded S., his case be as null and void.” 116 U. at 582-583. Connecticut, Cantwell the statute in question for-
bade solicitation for religious causes without a license with this discretionary power in secretary public welfare council:
“Upon application of any person behalf of such cause, the secretary shall determine whether such cause is a religious one or is a object bona fide charity or philanthropy and conforms to reasonable standards of efficiency integrity, if and, he shall find, so shall approve the same and issue to the au- thority charge a certificate to that effect.” 310 S., at U. 302. said,
We speaking of the secretary:
“If he finds that the cause is not that of religion, solicit for it becomes a crime. He is not to issue a certificate a matter of course. His decision to issue or refuse it appraisal involves of facts, the exer- opinion. of an the formation judgment, cise if he de- approval withhold his He is authorized one. Such religious not a cause is that the termines determining as the means of religion censorship liberty protected is a denial to survive its liberty included by the First Amendment Fourteenth.” protection which is within Id., at 305. Texas was involved a statute of case,
In the Thomas organ- to obtain an organizers labor union required S., membership. 5, 323 U. soliciting § card before izer’s soliciting member- enjoined note He Id., injunction. and violated the without the card ship for- that Thomas was at 518. This Court concluded making speeches labor union by the statute from bidden without a for solicitation of permit Texas anywhere Id., seq. et treated the membership. at 532 The Court prohibition as a of labor union discussion statute of Texas anywhere within the bounds organizer’s an card *16 It said: legislative power. be- register think a that one must requirement
“We to enlist public fore he undertakes to make incompatible quite for lawful movement is support of the First Amendment.” requirements with the Id., at 540. unconstitutionality
The Court allowed the the statute complete contempt to be used as a defense to injunction. is
It is clear to us neither these decisions con- trary Supreme to the determination of the Court New challenged In Hampshire. both of the above cases the Royall case, In statutes were held unconstitutional. money the statute fee in requiring payment of the license In the statute case, was unconstitutional. the Cantwell “to impose the state court had not been construed secretary the welfare duty ministerial mere depended on his decision to solicit council.” atS., 306. Therefore “religious as to a cause.” U. authorizing previous that a statute restraint we held an though might even error be cor- unconstitutional In after trial. the Thomas the section of the case, rected speeches any- Texas Act was held labor prohibitory of private public property registration. where on This made 5 unconstitutional. § The statutes were as they though did not exist. Therefore there were no of- fenses in In present prosecu- violation a valid law. tion there was a an ordinance, valid unlawful refusal of a license, with remedial procedure state for the correction of the error. The state had authority determine, interest, the reasonable for method correction of the error, is, by certiorari. Our Constitution does require approve we the violation of a reasonable requirement speak license to in public parks because an official error occurred in refusing a proper application.
Affirmed. Frankfurter, Justice concurring the result. Mr. I am protest constrained to against the Court’s discus- sion under First because it deals with an issue that is not here. adjudication no area of adage is the “silence
golden” more pertinent, when there is no duty speak, than in the series of problems judicial to which a recon- ciliation between liberty and order gives rise. It is more than a counsel of wisdom. When duty there is no *17 speak such issues there is a duty not to speak. This is not merely so because constitutional pronouncements, when a case before the Court does not call for them, vio- history and by sanctioned practice late a constitutional depar- of occasional experience costly reinforced in compelling especially practice from it. tures judicial protec- and limits scope involving cases These speech. and freedom freedom religious tion By for courts. difficult issues the most perhaps present law translated into the themes to be vastness, very their deceptions of to the innocent readily too themselves lend legal con- to translate the attempt new Every rhetoric. prior brings question into impliedly of these liberties tent efforts at encourages it further the least attempts; exegesis. say I and, may if carefully has opinion
The Court's it addresses to which question defined the so, correctly two presents that Poulos in First. The Court finds itself contentions: ceremonies conducting religious for
“first, no license such Park because may required Goodwin be speech the freedom of requirement abridge would Amendment; Fourteenth religion guaranteed by the be though may required, a license second, even Council, arbitrary refusal of such license Hamp- must, if as New resulting delay, appellant was uncon- decided, pursue judicial remedies, shire and a abridgment speech as an of free stitutional, religion.” of the free exercise of prohibition says, English unambiguously If lucid means what it license quotation the “first” contention the above —“no Park conducting religious may ceremonies Goodwin abridge would required requirement because such religion guaranteed by the freedom of Fourteenth Amendment” —means that the Due Process Hamp- Clause of the Fourteenth Amendment bars New for “an requiring open shire from license air *18 416 Portsmouth.1 the ordinance of required by is
meeting,” that the appellant in is a claim the legal terms And statute) is void jurisdictional purposes, (for ordinance in explicit was the claim made precisely Such on its face. Cox 569. In the case Hampshire, v. New U. S. Cox licensing as such was out was that the scheme the claim It to that issue that our bounds. of constitutional beginning was directed. From the unanimous decision rejected pres- in the explicitly that claim was litigation litigation has subsequent stage and at no ent case licensing as such was void. claimed that the scheme Poulos jurisdiction, as to claim is made his statement No such his brief reply opposition, in his to the statement gar, merits. Kai expres- as the reply brief on the naturally Experienced so. coun- phrase sive Greek ran-— to take himself from under the Cox sel for Poulos tried distinguished it from this case that here decision and died codefendant, Derrickson, “the respondents [the Hampshire Superior trial in the New after the Court] and offered attempted comply have with the ordinance It not that pay necessary expenses.” fee and is Supreme Hampshire first before the case was the New When essentially stipulation find Court on a of facts different from the ings present rest, on which the decision in the case must there was city may religious in issue the claim that not refuse a license for meetings park adequate places of in one even “if there are still as sembly public open meetings.” for those who wish to hold air church question upon This was taken out of the case remand for the trial which resulted in the conviction now before us. It was then found grant “arbitrary that refusal a license in this case was only case, unreasonable.” In its second review of the decision here, Hampshire Supreme is now the New Court assumed that the Accordingly subject Council’s action was unlawful. all is question procedural Hamp review now is the whether the law of New shire, illegally license, constitutionally may in relation to an withheld operate in the circumstances of this case. license, for a by applying himself, estopped
Poulos as void. assailing the statute thereafter on its “valid to be the ordinance he conceded throughout 860, A. 2d 354, 88 Poulos, 97 N. H. face.” State *19 in Poulos makes attack that The real constitutional in the all review, under are here which proceedings the is argument, in oral the filed, are here briefs that oppor- denied the was on the fact that he founded the Ports- under § in tunity up prosecution, to set the license, without speaking for ordinance, mouth the applied he for which denying in the license claim that unrea- arbitrarily and City Council acted Portsmouth proceedings from the that arises sonably. only The issue fined which Court, Municipal had in the Portsmouth the which sustained Superior Court, in $20, Poulos which Hampshire, of New Supreme and in the Court fine, for remedy whether the Superior Court, was affirmed Poulos a license grant refusal to concededly wrongful all Council. These courts City to the was mandamus prose- up as a defense agreed that he could set arbitrary a license the con- speaking cution for him in one. City denying of the Council duct in accuracy ruling put matter was with entire The found Court, Supreme which the Court Superior unexceptionable: that theory have tried these cases on the
“Counsel grant licenses City the refusal of the Council in found as a fact was issue. It is respondents in City refusing Council that the action arbitrary grant respondents licenses to the a matter of law but the Court rules as unreasonable, init these properly this issue is not before Poulos, supra, H., v. 97 N. See State proceedings.” 2d, 88 A. at 861. 353, of New requirement validity procedural of this an unlawful denial remedy Hampshire —that only issue or certiorari —is mandamus is license had before it: Court Hampshire Supreme the New which defendants Court, the [Superior] to the “According remedy. It has been conceded their misconceived from the the case the defense on this transfer [of one, that Court], as well as on the first Superior identical on its face. ordinance is valid as valid with the that was construed language statute was affirmed Cox, 91 H. N. State dis- It is not S. Hampshire, v. New U. Cox applies park to the the ordinance puted meetings question. open air was the scene has been made to objection No place, took meetings where the ordinance to the areas finding ruling no taken to exception *20 Poulos, supra, 97 State v. thereto.” See respect A. at H., 2d, N. four submitted to in one of the documents
Nowhere that any showing of Poulos is there on behalf this Court griev- is before us. The procedural than this issue more required not that a license was that is here is ance that, having is in Park. The claim speaking Goodwin for a requirement by applying with this duly complied Poulos was free wrongfully refused, that was then license required and that he speak license, without against for a mandamus go Superior to the Court City Council. short, what is discussed under First the Court’s precisely appropriate had
opinion would have been Cox, that namely, made the claim made Poulos required were not congregation Jehovah’s Witnesses wholly pertinence for a but is apply license, present record. sure, having To Poulos makes the conceded claim — the statute is valid on its face—that the ordinance applied” is unconstitutional “as “under the in this facts case.” But what “facts”? having The facts are these: complied requiring with the statute a license, he was not up allowed to set as a defense for its violation the fact the want of a license was due to the illegal conduct licensing agency. That precisely is what is correctly by defined the Court as the “second” contention:
“second, though even a license bemay required, the arbitrary refusal of such a license the Council, if resulting delay, appellant must, as New Hamp- shire decided, pursue judicial remedies, was uncon- stitutional, as an abridgment of free speech and a prohibition of the free religion.” exercise of But that is not the “second” contention. It only is the contention. is only contention that was before the New Hampshire Supreme Court in the proceeding we are reviewing, and it is the only contention, however vari- ously phrased, on which Poulos can obtain review here.2 And this is the contention —the statute “as applied” in this sense —that the Court treats its discussion under Second. this,
On only issue I here, agree that New Hampshire was not barred the Due Process Clause from requiring Poulos to mandamus City Council after it had unlawfully refused him permit. New Hampshire may in these I circumstances, agree, refuse *21 him permission to set up the Council’s arbitrary denial application his as a prosecution defense to under the ordinance, which fixes the penalty at $20. There is noth- ing in the record to suggest that the remedy to which
2 1, supra. See note Poulos confined Hampshire of New Court Supreme alone let utterance, right his
effectively frustrated aby pro- constitutional his it circumvented permit for a Poulos’ pretense. cedural he which meetings for and May 4, denied 25 and on June be held were to permit sought Poulos showing that did any In the absence July remedy3 secure judicial prompt a have available not acknowledged judicially right, his the Council at the bar the State on behalf confirmed emphatically Hampshire that by New requirement Court, the of this or certiorari mandamus way of relief invoke Poulos infringe not here hands did his own law into not take of the Four- Clause Process the Due limitations Hampshire. upon New places Amendment teenth Hampshire from to bar New that Clause trivialize would license, a denial of raised legal issues determining be adju- should system, constitutionally valid under or, police courts first instance dicated designed appropriately in an be determined event, should action. penal to a a defense not as procedure Hampshire Su New conclusion reaching not, it did ordinance; not construe did preme Court the statute. apply phrase, meaning of in the technical overruling the “for Court, said that reason,” no see “We wrongful refusal that a jurisdiction in this law as stated acting prosecution to a not bar to license 2d,A. 354, 88 H., at Poulos, 97 N. supra, v. State license.” Hampshire en of New Court Supreme What at 861. but the ordinance licensing part not a forced was It stretches Hampshire. law New procedural general Bondurant, v. Milling Co. of Dahnke-Walker the doctrine find that re- limits reasonable 282, beyond 61, 62. 177, 178, 16 2dA. Morse, H.N. g., See, e. Nelson *22 quirement Hampshire New procedure is an application licensing statute, than an rather common law of New Hampshire. I Therefore, think, case properly here on certiorari and not appeal.
Mr. Black, Justice dissenting. holding Court’s in this case is one more in a series of recent decisions which fail to protect right Douglas’ Americans to speak freely. join I Mr. Justice forceful dissent and wish to add only a few words.
I
agree
the Court that
the validity of
licensing phase of this
Hampshire
New
law was not up-
held in Cox Hampshire,
New
has Hamp- that New argument Court’s the challenge not do the follow to refused who man prosecute could shire businesses,” “run to a license procure to law the letter explo- firearms,” “store “purchase structures,” “erect First the But pawnshop. to run add, may Ior, sives,” protec- special freedom affords Amendment man convicting a a state prohibits it I believe ; tion orderly an he makes is that only offense whose of crime “arbitrarily illegally, been he has after appeal religious This to talk. a “license” unreasonably” denied and loose in censorship creeping aof use is a subtle me land. Black Justice Douglas, whom Mr.
Mr. Justice dissenting. concurs, de under our must it concedes, as indeed
The Court v. Thomas 572; Virginia, v. Roy all (see cisions speak right if denial 516), Collins, 323 S. U. have would appellant statute, in a been contained had constitu his exercise law, to to flout entitled been July 2, on address make speech, to free right tional stat violating the and tried arrested and when 1950, law was uncon ground on the ute, to defend neces statute An unconstitutional stitutional. consequences intermediate may it have nullity; sarily Bank, v. Dist. County See Chicot upon binding people. city 2 position took Poulos Superior Court In the “arbitrary un and speak was him to “license” refusal council’s speak assemble, freely to right in violation reasonable” Amendments. Fourteenth First and guaranteed worship holding that Superior Court’s Supreme Court affirmed The State arbitrary unreasonable. refusal was the council’s legislature S. 371. But when a U. undertakes to proscribe the exercise of a citizen’s constitutional speech, lawlessly; to free it acts and the citizen can take matters his hands and proceed own the basis that Jonge Oregon, such a law is no law at all. See De 353, S. 365. U.
The reason is the preferred position granted freedom of speech, freedom of press, freedom of assembly, and religion freedom of by the First Amendment. See Collins, Thomas v. supra, p. 530; Pennsyl Murdock v. vania, 319 U. S. command the First (made Amendment applicable to the Four States teenth) is that there shall be no law which abridges those rights. civil is beyond The matter power *24 legislature to regulate, control, or condition. The case is therefore quite legislative different from a in program the field of business, labor, housing, and the like where regulation permissible is and the claim of unconstitu tionality usually can be determined only by the manner degree or of the statute to an aggrieved person.
A legislature that undertakes to license or censor the right of free is imposing prior restraint (see Minnesota, Near v. in 697), odious our history. The Constitution commands that government keep its hands off the exercise of First rights. Amendment No matter legislature what the may say, a man has the right to speech, make his print his handbill, compose his newspaper, and deliver his sermon without asking any- one’s permission. The contrary suggestion is abhorrent to our traditions.
If the citizen can flout legislature when it under- takes tamper to with his First Amendment I rights, fail to see why may he not flout the official or agency who administers a licensing law designed regulate the exer- cise right of free speech. Defiance of a statute than defiance society orderly to an harmful hardly less
is which statute, aof The vice order. of an administrative that it speech, make a right to a license exacts same when is the The burden right. to the a burden adds withhold system licensing administering the the officials months spend applicant require the license to win a in order in the courts years deny. shall government no says Constitution Virginia, Roy all v. of dictum way by It was said en officer, if an rule,” general that “as a supra, p. only “ministerial” has licensing power, with a trusted would be mandamus remedy by “the perform, duties the license. to issue the officer” compel appropriate statute, construed present agree I do not merely a ministerial imposes Hampshire court, the New construction, by which city council. duty on to the discretion gives range wide bound, we are city council: is lim- authority
“The discretion thus vested reason, uni- the bounds ited its exercise upon the facts method treatment formity of improper inappro- application, each free and from unfair discrimination. priate considerations treatment, just A order of systematic, consistent use to the convenience of reference man- parks], statutory is the highways [here *25 no licensing authority delegation has date. The legislature grant- of that which the power excess legislature attempted has and the ing power Cox, it power possess.” no did not State delegate 137, 143, H. 16 A. 2d 513. N. authority that within requirement licensing stay The im- “the bounds of reason” and that it be “free from proper inappropriate or considerations and from unfair a that it reasonably, discrimination” is command act or But capriciously arbitrarily. even a regu- reasonable right lation of the to free is not compatible the First Amendment.1 Of course, a state could deny park religious use of a group one if a prior appli- cation granted had been group another and the meet- ings would conflict. suggestion But there is no New Hampshire that its system regulation vests the licens- ing authority with limited only power. gloss which the Hampshire New court has on placed the statute grants power a reasonably regulate free speech. That unfortunately is a doctrine that has slowly been creeping into our constitutional law.2 It no place has there. is a doctrine dangerous to liberty and destructive of the great rights guaranteed by the First Amendment.
So, one answer to the Court’s holding that appellant should gone have into court to compel the issuance of a license is that the licensing power was discretionary not
1 This
marks
distinction between the present case and Cox v.
Hampshire,
New
312 U.
S.
There
charge against
the sole
appellants
they
“taking
was that
part
were
parade
procession”
ain
or
public
on
streets
only
without a license. We
held
Hamp
that New
shire’s
controlling
method
travel on per
streets
cities was
missible
police power
under the
of the states.
distinguished
We
problem from
arising
like cases
under the First Amendment, p. 573,
“The
charge against
sole
appellants
they
was that
‘taking
were
part
parade
in a
procession’
or
public
permit
streets without a
as the
required.
statute
They
prosecuted
were not
distributing
for
leaflets, or for conveying
by placards
information
or otherwise, or for
issuing
public
invitations to a
meeting,
holding
meet-
ing, or for maintaining or expressing religious
beliefs. Their
any
to do
one
these things apart from engaging in
‘parade
procession’ upon public
street is not here involved
question
and the
of the validity of a statute
addressed to
other sort of conduct
than
complained
of is not before us.”
2Beauharnais v. Illinois,
250;
343 U. S.
Dennis v.
States,
United
494;
Feiner
York,
v. New
S.U.
315. Cf. Breard v.
Alexandria, 341
622;
U. S.
American
Douds,
Communications Assn. v.
ministerial is unconstitutional. speech in Cantwell found is answer another
There is argued it In case that Connecticut, S.U. so be construed statute a state power licensing a that minis- authority licensing of power to limit as grounds. on two offer rejected acts. We terial narrowly con- been so had not the statute place, first avail- place, the In the second court. by the state strued any event save not relief would judicial ability of unan- for a Roberts, writing Mr. Justice statute. What 306): atS., (310 U. was this Court, said imous abuses remedy for judicial availability . the of “. . system leaves licensing still system in the free field of which, in restraint previous one of A inadmissible. held we have press, speech and the exer- upon restraint authorizing previous statute judicial decision freedom guaranteed cise one to the obnoxious Constitution after trial is as administrative action.” like restraint providing for repeated to be said needs Roberts Mr. Justice What speech sense There is no free again. over and from be obtained must permission when the Constitution pre- That be made. can an before official with the at war by history and restraint vious condemned official particular nature of the The Amendment. First does authority deny power grant has the who con- First Amendment who wrote the not matter. Those wholly independent speech as to free ceived of judiciary was anyone. prior restraint other withheld privilege restraint granted were judges too history proved For officials. tyrants. sometimes