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KUNZ v. NEW YORK

decided: January 15, 1951.

KUNZ
v.
NEW YORK



APPEAL FROM THE COURT OF APPEALS OF NEW YORK.

Vinson, Black, Reed, Frankfurter, Douglas, Jackson, Burton, Clark, Minton

Author: VINSON

[ 340 U.S. Page 290]

 MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

New York City has adopted an ordinance which makes it unlawful to hold public worship meetings on the streets

[ 340 U.S. Page 291]

     without first obtaining a permit from the city police commissioner.*fn1 Appellant, Carl Jacob Kunz, was convicted and fined $10 for violating this ordinance by holding a religious meeting without a permit. The conviction was

[ 340 U.S. Page 292]

     affirmed by the Appellate Part of the Court of Special Sessions, and by the New York Court of Appeals, three judges dissenting, 300 N. Y. 273, 90 N. E. 2d 455 (1950). The case is here on appeal, it having been urged that the ordinance is invalid under the Fourteenth Amendment.

Appellant is an ordained Baptist minister who speaks under the auspices of the "Outdoor Gospel Work," of which he is the director. He has been preaching for about six years, and states that it is his conviction and duty to "go out on the highways and byways and preach the word of God." In 1946, he applied for and received a permit under the ordinance in question, there being no question that appellant comes within the classes of persons entitled to receive permits under the ordinance.*fn2 This permit, like all others, was good only for the calendar year in which issued. In November, 1946, his permit was revoked after a hearing by the police commissioner. The revocation was based on evidence that he had ridiculed and denounced other religious beliefs in his meetings.

Although the penalties of the ordinance apply to anyone who "ridicules and denounces other religious beliefs," the ordinance does not specify this as a ground for permit revocation. Indeed, there is no mention in the ordinance of any power of revocation. However, appellant did not seek judicial or administrative review of the revocation proceedings, and any question as to the propriety of the revocation is not before us in this case. In any event, the revocation affected appellant's rights to speak in 1946 only. Appellant applied for another permit in 1947, and again in 1948, but was notified each time that his application was "disapproved," with no reason for the disapproval being given. On September 11, 1948, appellant

[ 340 U.S. Page 293]

     was arrested for speaking at Columbus Circle in New York City without a permit. It is from the conviction which resulted that this appeal has been taken.

Appellant's conviction was thus based upon his failure to possess a permit for 1948. We are here concerned only with the propriety of the action of the police commissioner in refusing to issue that permit. Disapproval of the 1948 permit application by the police commissioner was justified by the New York courts on the ground that a permit had previously been revoked "for good reasons."*fn3 It is noteworthy that there is no mention in the ordinance of reasons for which such a permit application can be refused. This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications on the basis of his interpretation, at that time, of what is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.

In considering the right of a municipality to control the use of public streets for the expression of religious views, we start with the words of Mr. Justice Roberts that "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. C. I. O., 307 U.S. 496, 515 (1939). Although this Court has recognized that a statute may be enacted which prevents

[ 340 U.S. Page 294]

     serious interference with normal usage of streets and parks, Cox v. New Hampshire, 312 U.S. 569 (1941), we have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places. In Cantwell v. Connecticut, 310 U.S. 296 (1940), this Court held invalid an ordinance which required a license for soliciting money for religious causes. Speaking for a unanimous Court, Mr. Justice Roberts said: "But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution." 310 U.S. at 307. To the same effect are Lovell v. Griffin, 303 U.S. 444 (1938); Hague v. C. I. O., 307 U.S. 496 (1939); Largent v. Texas, 318 U.S. 418 (1943). In Saia v. New York, 334 U.S. 558 (1948), we reaffirmed the invalidity of such prior restraints upon the right to speak: "We hold that ยง 3 of this ordinance is unconstitutional on its face, for it establishes a previous restraint on the right of free speech in violation of the First Amendment which is protected by the Fourteenth Amendment against State action. To use a loudspeaker or amplifier one has to get a permit from the Chief of Police. There are no standards prescribed for the exercise of his discretion." 334 U.S. at 559-560.

The court below has mistakenly derived support for its conclusion from the evidence produced at the trial that appellant's religious meetings had, in the past, caused some disorder. There are appropriate public remedies to protect the peace and order of the community if appellant's speeches should result in disorder or violence. "In the present case, we have no occasion to inquire as to the permissible scope of subsequent punishment." Near

[ 340 U.S. Page 295]

     v. Minnesota, 283 U.S. 697, 715 (1931). We do not express any opinion on the propriety of punitive remedies which the New York authorities may utilize. We are here concerned with suppression -- not punishment. It is sufficient to say that New York cannot vest restraining control over the right to speak on religious subjects in an administrative official where there are no appropriate standards to guide his action.

Reversed.

MR. JUSTICE BLACK concurs in the result.

[For opinion of MR. JUSTICE FRANKFURTER, concurring in the result, see ante, p. 273.]

Disposition

300 N. Y. 273, 90 N. E. 2d 455, reversed.

MR. JUSTICE JACKSON, dissenting.

Essential freedoms are today threatened from without and within. It may become difficult to preserve here what a large part of the world has lost -- the right to speak, even temperately, on matters vital to spirit and body. In such a setting, to blanket hateful and hate-stirring attacks on races and faiths under the protections for freedom of speech may be a noble innovation. On the other hand, it may be a quixotic tilt at windmills which belittles great principles of liberty. Only time can tell. But I incline to the latter view and cannot assent to the decision.

I.

To know what we are doing, we must first locate the point at which rights asserted by Kunz conflict with powers asserted by the organized community. New York City has placed no limitation upon any speech Kunz may choose to make on private property, but it does require a permit to hold religious meetings in its streets. The ordinance, neither by its terms nor as it has been

[ 340 U.S. Page 296]

     applied, prohibited Kunz,*fn1 even in street meetings, from preaching his own religion or making any temperate criticism or refutation of other religions; indeed, for the year 1946, he was given a general permit to do so. His meetings, however, brought "a flood of complaints" to city authorities that he was engaging in scurrilous attacks on Catholics and Jews. On notice, he was given a hearing at which eighteen complainants appeared. The Commissioner revoked his permit and applications for 1947 and 1948 were refused. For a time he went on holding meetings without a permit in Columbus Circle, where in September, 1948, he was arrested for violation of the ordinance. He was convicted and fined ten dollars.

At these meetings, Kunz preached, among many other things of like tenor, that "The Catholic Church makes merchandise out of souls," that Catholicism is "a religion of the devil," and that the Pope is "the anti-Christ." The Jews he denounced as "Christ-killers," and he said of them, "All the garbage that didn't believe in Christ should have been burnt in the incinerators. It's a shame they all weren't."

These utterances, as one might expect, stirred strife and threatened violence. Testifying in his own behalf, Kunz stated that he "became acquainted with" one of the complaining witnesses, whom he thought to be a Jew, "when he happened to sock one of my Christian boys in the puss." Kunz himself ...


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