Free Exercise cases and Kunz v. New York and street preaching and Columbus Circle and administrative discretion and revocation of permit

At issue in this case was whether petitioner's Free Exercise rights were violated when his application to preach in the streets around Columbus Square was revoked by the New York City Police Commissioner for violating a city ordinance prohibiting such street preachers from ridiculing or denouncing any form of religious belief. The Court held (8-1) that the discretionary power afforded the Commissioner to deny or revoke permits conflicted with earlier precedent, especially Cantwell, because it allowed the Commissioner to revoke permission with any standards prescribed for the exericse of his discretion. Justice Jackson, in a dissent four times as long as the majority opinion, carefully dissected the factual situation of the case and the reasonability of the Commissioner's process in revoking the license.

Relevant Facts

New York City had a municipal ordinance forbidding street assemblage of religious groups or street preaching without obtaining a permit from the police commissioner to do so. Nothwithstanding this rule, Baptist churches could hold baptisms "in a proper place" (presumably in public parks) without this permission. It was also unlawful to interfere with such services once a permit was granted for them. Finally, a violation of the ordinance could result in a fine of up to $25 and/or imprisonment for thirty days.

In 1946 Kunz, an ordained Baptist minister, obtained an annual permit to preach in the streets and used the occasion, among other things, to denounce Roman Catholicism and Judaism in provocative ways. For example, he attacked the latter as "Christ-killers" and said of them, "All that garbage that didn't believe in Christ should have been burnt in the incinerators. It is a shame they all weren't." Complaints flooded into the Commissioner's office and the permit was revoked. When he reapplied for a preaching permit in 1948, his application was denied. Nevertheless he continued to preach and was arrested, which led to the case being filed. He was convicted at trial and fined $10, and the conviction was upheld on appeal.

Majority Analysis

The majority opinion (authored by Chief Justice Vinson) stated that the central issue was "the propriety of the action of the police commissioner in refusing to issue that [the 1948] permit." The 1946 permit had been revoked "for good reasons," but it was noteworthy that the ordinance mentioned no reasons for which a permit application could be refused. The Chief Justice opined: "This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications on the basis of his interpreation, at the time, of what is deemed to be conduct condemned by the ordinance." Because the ordiance gives an administrative official control in advance of the right of citizens to speak on religious matters in the streets of New York, "the ordinace is clearly invalid as a prior restraint on the exercise of First Amendment rights." He cited serveral cases from the Court's Free Speech and Free Exercise jurisprudence which held that unlimited discretion of a public offical in forbidding speech or religious exercise violated the First Amendemnt.

Jackson in Dissent

Justice Jackson's typically eloqent dissent focused on the nature of what was actually said and the fairness of the procedure used by the Commissioner in revoking and refusing to reissue a preaching permit to Kunz. He pointed out the "flood of complaints" that followed Kunz's intemperate attacks on other religions, the violence that followed in one instance, and the need for police officers to keep order when he was speaking. He stressed the difference between the freedom to say what one wants in one's own pulpit or hall and the freedom to say the same things on public thoroughfares. In the latter place there is a "captive audience," while those in a church are a voluntary audience.

He was also concerned to examine the content of the words in the context of the Court's previous decisions. Quoting Justice Holmes in Schenck (249 US 47) and Murphy in Chaplinsky (315 US 568), he said that the Court held that "fighting words," which included the lewd and obscene, the profane and the libelous, would not receive the special protections afforded by the First Amendment to speech or religon. Kunz's epithets "come down to our generation weighted with hatreds accumulated through centureis of bloodshed. They are recognized words of art in the profession of defamation." It should not be required for Jews, whose families perished at Auschwitz or Dachau, to endure the scurrilous attacks of Kunz. Indeed, Justice Holmes' "clear and present danger" test in Schenck [that the government could prevent speech if "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils" tha tthe City has a right to prevent] was amply met by petitioner's conduct in this case.

In addition, when the Commissioner revoked the license, he did so only after assembling witnesses, taking testimony, allowing for cross-examination and defense and then rendering a decision. It was a process designed to protect the rights of all.