Kunz v. New York/Opinion of the Court
|Kunz v. New York by
Opinion of the Court
United States Supreme Court
KUNZ v. NEW YORK
Argued: Oct. 17, 1950. --- Decided: Jan 15, 1951
New York City has adopted an ordinance which makes it unlawful to hold public worship meetings on the streets without first obtaining a permit from the city police commissioner.  Appellant, Carl Jacob Kunz, was convicted and fined $10 for violating this ordinance by holding a religious meeting without a permit. The conviction was affirmed by the Appellate Part of the Court of Special Sessions, and by the New York Court of Appeals, three judges dissenting, 1950, 300 N.Y. 273, 90 N.E.2d 455. 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.  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 In November, 1946, his permit was revoked after a hearing by the police commissioner.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 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' . 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., 1939, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423. Although this Court has recognized that a statute may be enacted which prevents serious interference with normal usage of streets and parks, Cox v. State of New Hampshire, 1941, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 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. State of Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 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 page 307, 60 S.Ct. at page 904. To the same effect are Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Hague v. C.I.O., 1939, 307 U.S. 496, 58 S.Ct. 954, 83 L.Ed. 1423; Largent v. State of Texas, 1943, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873. In Saia v. People of State of New York, 1948, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, we reaffirmed the invalidity of such prior restraints upon the right to speak: 'We hold that § 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 pages 559-560, 68 S.Ct. at page 1149, 92 L.Ed. 1574.
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 v. State of Minnesota, 1931, 283 U.S. 697, 715, 51 S.Ct. 625, 631, 75 L.Ed. 1357. 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.
^1 Section 435-7.0 of chapter 18 of the Administrative Code of the City of New York reads as follows:
'a. Public worship.-It shall be unlawful for any person to be concerned or instrumental in collecting or promoting any assemblage of persons for public worship or exhortation, or to ridicule or denounce any form of religious belief, service or reverence, or to preach or expound atheism or agnosticism, or under any pretense therefor, in any street. A clergyman or minister of any denomination, however, or any person responsible to or regularly associated with any church or incorporated missionary society, or any lay-preacher, or lay-reader may conduct religious services, or any authorized representative of a duly incorporated organization devoted to the advancement of the principles of atheism or agnosticism may preach or expound such cause, in any public place or places specified in a permit therefor which may be granted and issued by the police commissioner. This section shall not be construed to prevent any congregation of the Baptist denomination from assembling in a proper place for the purpose of performing the rites of baptism, according to the ceremonies of that church.
'b. Interference with street, services.-It shall be unlawful for any person to disturb, molest or interrupt any cleargyman, minister, missionary, lay-preacher or lay-reader, who shall be conducting religious services by authority of a permit, issued hereunder, or any minister or people who shall be performing the rite of baptism as permitted herein, nor shall any person commit any riot or disorder in any such assembly.
'c. Violations.-Any person who shall violate any provision of this section, upon conviction thereof, shall be punished by a fine of not more than twenty-five dollars, or imprisonment for thirty days, or both.'
This ordinance was previously challenged in People v. Smith, 263 N.Y. 255, 188 N.E. 745, appeal dismissed for want of a substantial federal question, Smith v. People of State of New York, 1934, 292 U.S. 606, 54 S.Ct. 775, 78 L.Ed. 1468. Smith, who had not applied for a permit under the ordinance, argued that the regulation of religious speakers alone constituted an unreasonable classification. None of the questions involved in the instant appeal were presented in the previous case.
^2 The New York Court of Appeals has construed the ordinance to require that all initial requests for permits by eligible applicants must be granted. 300 N.Y. at page 276, 90 N.E.2d at page 456.
^3 The New York Court of Appeals said: 'The commissioner had no reason to assume, and no promise was made, that defendant wanted a new permit for any uses different from the disorderly ones he had been guilty of before.' 300 N.Y. at page 278, 90 N.E.2d at page 457.
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