340 US 268 (Decided January 15, 1951)
Bill Long 10/04/04
The Court held in this 9-0 decision that the City of Havre de Grace, MD violated the Free Exercise of Niemotko's religion by not issuing a permit for him and his religious group (the Jehovah's Witnesses) to meet in a public park when other religious and civic groups had been given permits for holding their meetings there.
No town ordinance prohibited or regulated the use of a public park in Havre de Grace, though it had been the town's custom over the years to issue permits to civic groups that wanted to use it for various purposes. The Jehovah's Witnesses requested permission from the Park Commissioner to use it, but were told that another group had signed up for that particular Sunday. Undeterred, they requested other Sundays but were turned down after a hearing by the City Council. At the hearing, the Council members asked them questions about their views of Roman Catholics, their refusal to salute the American flag and other subjects not related to the use of a permit. After the hearing, their request was turned down. Nevertheless, the Witnesses went ahead and held their public meetings, with Niemetko, their preacher, being arrested. He was arrested under a disorderly conduct statute, though there was no evidence, at the time of arrest, that disorder, threats of riot or other violence impended.
Speaking for a unanimous Court, Chief Justice Vinson put this issue in the context of their previous cases examining the licensing system by which local bodies regulated the use of parks and public places. He stated the law:
"In those cases this Court condemned statutes and ordinances which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint on freedom of speech, press and religion, and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must be invalid."
Unlike some of the other decisions, this case was a "slam dunk" for the Court. "Indeed, rarely has any case been before this Court which shows so clearly an unwarranted discrimination in a refusal to issue such a license."
Justice Frankfurter's Concurrence
Of even more interest, from the perspective of First Amendment law, is Justice Frankfurter's concurrence. He recognized not only the importance and difficulty of the issue of "adjustment of the inevitable conflict between free speech and other interests," but he realized that the Court had only a limited ability to "set limits and point the way." He proceeded to develop a sort of template for the various First Amendment issues faced by the Court.
Most significant in the "speech in public park" cases was the principle that if the licensing power had been made an "instrument of arbitrary suppression of free expression of views" it would violate the First Amendment. While the Court recognizes the centrality of free speech, free speech itself is not a touchstone. Public order must be balanced with the freedom of speech. But, in the case at hand, "neither danger to the public peace, nor consideration of time and convenience to the public, appears to have entered into the denial of the permit." He concluded, "To allow expression of religious views by some and deny the same privilege to others merely because they or their views are unpopular, even deeply so, is a denial of equal protection of the law forbidden by the Fourteenth Amendment."
Since his concurrence was related to all three of the free speech/religion cases decided that day (Kunz and Feiner too), his concurrence expresses perhaps his clearest and most mature reflections on the difficulties of the issues in the Free Exercise/Free Speech area.
Copyright © 2004-2007 William R. Long