345 US 395 (Decided April 27, 1953)
Bill Long 10/07/04
In this case the Court held (7-2, Justices Black and Douglas dissenting), that a New Hampshire town ordinance regarding permission to hold a meeting in a public park, construed by the NH Supreme Court not to vest more than ministerial discretion in a municipal official who granted permission, did not violate the appellant's Free Exercise rights even if he and his group were arbitrarily and unlawfully denied a license to hold a religious meeting in that public park.
More specifically, the Court held that by going ahead and holding a meeting in violation of the official's admittedly improper denial, the appellant pursued the wrong remedy. The proper remedy would have been through mandamus of the public official (or certiorari). Holding an unapproved public religious meeting in a park was no defense to an arbitrary withholding of a license to hold such a meeting.
A Portsmouth (NH) town ordinance provided that "No theatrical or dramatic representation shall be performed or exhibited and no parade or procession upon any public street or way, and no open air public meeting upon any ground abutting thereon shall be permitted unless a license therefor shall first be obtained from the City Council." The NH Supreme Court had construed the discretion vested in the city council as "limited in its exercise by the bounds of reason, in uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination."
Thus, the discretion of the official was ministerial. The City could "take one of its small parks and devote it to public and nonreligious purposes under a system which is administered fairly and without bias or discrimination." In fact, the City of Portsmouth denied all religious groups the privilege of using the park for religious services.
The Jehovah's Witnesses, who applied for a permit and were arbitrarily denied (this was a finding of fact of the state court, and the Supreme Court neither questioned it nor stated what was arbitrary about the council's refusal), nevertheless chose to hold a religious meeting in the public park. The preacher was arrested. They argued, as they had done on dozens of cases previously, that the arbitrary action of the city council was a defense to their "illegal" holding of the religious meeting.
Important for the Court was the fact that the NH Supreme Court had construed the ordinance as leaving to the licensing officials "no discretion as to granting permits, no power to discriminate, no control over speech." It is not altogether clear, however, as pointed out by Justice Douglas in dissent, that the NH Supreme Court's decision actually eliminated this arbitrary discretion. Nevertheless, the majority concluded that the ordinance would not face the same problems of earlier ordinances overturned by the Court, where the municipal official could "arbitrarily" deny one religious group a permit and grant it to the next religious group. Thus, in issue one, as Justice Frankfurter called it in his concurrence, the Court upheld the validity of the ordinance.
More tricky, however, was the issue of whether the Witnesses had pursued the correct remedy for denial. Their application was arbitrarily denied (even if the ordinance as construed did not permit arbitrariness), and so they went ahead and held the rally/service in the public park. They relied on three cases from earlier decades (Royall, 116 US 572; Cantwell, 310 US 296; and Thomas, 323 US 516) to support the proposition that when state authorities illegally denied a person a right (such as the right to practice law), the person was justified in going ahead and practicing as if a license had been issued. For example: "To punish him (Royall) for practicing it (i.e., law) without a license thus [improperly] withheld is equally a denial of his rights under the Constitution of the United States, and the law....must on that account...be regarded as null and void."
Yet, the Court held that none of these three decisions was contrary to the determination of the NH Supreme Court because the US Supreme Court, in those cases, invalidated the statutes because they permitted arbitrary action by state officials. Only in the instance where a statute is found unconstitutional, then, would the Court allow the unconstitutionality of the statute to be used as a complete defense to contempt of an injunction. Here there was a violation of a valid law. The proper avenue for redress was to pursue a mandamus or certiorari action action the official(s) who denied the permit.
Douglas in Dissent
Justice Douglas' approachto to Free Exercise/Speech in this case was first articulated nearly a decade earlier in Murdock. He speaks of the "preferred position" granted freedom of speech, religion, press and assembly by the First Amendment. "The case is therefore quite different from a legislative program in the field of business, labor, housing and the like where regulation is permissible." He quoted with approval Justice Roberts' opinion in Cantwell to the effect that even if there was an available remedy (such as mandamus) for abuses in the sytem of licensing, it still leaves in its place a system of prior restraint that was arbitrarily exercised.
Douglas is quite adamant about it: "There is no free speech in the sense of the Constitution when permission must be obtained from an official before a speech can be made." Thus, for him, the case was an example of prior restraint of a privileged freedom, a freedom that could be exercised with impunity if it was improperly curtailed by civic officials.
Copyright © 2004-2007 William R. Long