Kovacs v. Cooper/Opinion of the Court
This appeal involves the validity of a provision of Ordinance No. 430 of the City of Trenton, New Jersey. It reads as follows:
'4. That it shall be unlawful for any person, firm or corporation, either as principal, agent or employee, to play, use or operate for advertising purposes, or for any other purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any device known as a sound truck, loud speaker or sound amplifier, or radio or phonograph with a loud speaker or sound amplifier, or any other instrument known as a calliope or any instrument of any kind or character which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon said streets or public places aforementioned.'
The appellant was found guilty of violating this ordinance by the appellee, a police judge of the City of Trenton. His conviction was upheld by the New Jersey Supreme Court, Kovacs v. Cooper, 135 N.J.L. 64, 50 A.2d 451, and the judgment was affirmed without a majority opinion by the New Jersey Court of Errors and Appeals in an equally divided court. The dissents are printed. 135 N.J.L. 584, 52 A.2d 806.
We took jurisdiction  to consider the challenge made to the constitutionality of the section on its face and as applied on the ground that § 1 of the Fourteenth Amendment of the United States Constitution was violated because the section and the conviction are in contravention of rights of freedom of speech, freedom of assemblage and freedom to communicate information and opinions to others. The ordinance is also challenged as violative of the Due Process Clause of the Fourteenth Amendment on the ground that it is so obscure, vague, and indefinite as to be impossible of reasonably accurate interpretation. No question was raised as to the sufficiency of the complaint.
At the trial in the Trenton police court, a city patrolman testified that while on his post he heard a sound truck broadcasting music. Upon going in the direction of said sound, he located the truck on a public street near the municipal building. As he approached the truck, the music stopped and he heard a man's voice broadcasting from the truck. The appellant admitted that he operated the mechanism for the music and spoke into the amplifier. The record from the police court does not show the purpose of the broadcasting but the opinion in the Supreme Court suggests that the appellant was using the sound apparatus to comment on a labor dispute then in progress in Trenton.
The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words 'loud and raucous.' While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden. Last term, after thorough consideration of the problem of vagueness in legislation affecting liberty of speech, this Court invalidated a conviction under a New York statute, Penal Law, McK.Consol.Laws, c. 40, § 1141, construed and applied to punish the distribution of magazines 'principally made up of criminal news or stories of deeds of bloodshed, or lust, so massed as to become vehicles for inciting violent and depraved crimes against the person.' Winters v. New York, 333 U.S. 507, 518, 68 S.Ct. 665, 671. As thus construed we said that the statute was so vague that an honest distributor of tales of war horrors could not know whether he was violating the statute. 333 U.S. at page 520, 68 S.Ct. at page 672. But in the Winters case we pointed out that prosecutions might be brought under statutes punishing the distribution of 'obscene, lewd, lascivious, filthy, indecent or disgusting' magazines. 333 U.S. at page 511, 68 S.Ct. at page 668. We said, 333 U.S. at page 518, 68 S.Ct. at page 671:
'The impossibility of defining the precise line between permissible uncertainty in statutes caused by describing crimes by words well understood through long use in the criminal law obscene, lewd, lascivious, filthy, indecent or disgusting-and the unconstitutional vagueness that leaves a person uncertain as to the kind of prohibited conduct-massing stories to incide crim-has resulted in three argument of this case in this Court.'
We used the words quoted above from 333 U.S. at page 511, 68 S.Ct. at page 668, as examples of permissible standards of statutes for criminal prosecution. 333 U.S. at page 520, 68 S.Ct. at page 672. There we said:
'To say that a state may not punish by such a vague statute carries no implication that it may not punish circulation of objecti nable printed matter, assuming that it is not protected by the principles of the First Amendment, by the use of apt words to describe the prohibited publications. * * * Neither the states nor Congress are prevented by the requirement of specificity from carrying out their duty of eliminating evils to which, in their judgment, such publications give rise.'
We think the words of § 4 of this Trenton ordinance comply with the requirements of definiteness and clarity, set out above.
The scope of the protection afforded by the Fourteenth Amendment, for the right of a citizen to play music and express his views on matters which he considers to be of interest to himself and others on a public street through sound amplification devices mounted on vehicles, must be considered. Freedom of speech, freedom of assembly and freedom to communicate information and opinion to others are all comprehended on this appeal in the claimed right of free speech. They will be so treated in this opinion.
The use of sound trucks and other peripatetic or stationary broadcasting devices for advertising, for religious exercises and for discussion of issues or controversies has brought forth numerous municipal ordinances. The avowed and obvious purpose of these ordinances is to prohibit or minimize such sounds on or near the streets since some citizens find the noise objectionable and to some degree an interference with the business or social activities in which they are engaged or the quiet that they would like to enjoy.  A satisfactory adjustment of the conflicting interests is difficult as those who desire to broadcast can hardly acquiesce in a requirement to modulate their sounds to a pitch that would not rise above other street noises nor would they deem a restriction to sparsely used localities or to hours after work and before sleep-say 6 to 9 p.m.-sufficient for the exercise of their claimed privilege. Municipalities are seeking actively a solution. National Institute of Municipal Law Officers, Report No. 123, 1948. Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable. Absolute prohibition within municipal limits of all sound amplification, even though reasonably regulated in place, time and volume, is undesirable and probably unconstitutional as an unreasonable interference with normal activities.
We have had recently before us an ordinance of the City of Lockport, New York, prohibiting sound amplification whereby the sound was cast on public places so as to attract the attention of the passing public to the annoyance of those within the radius of the sounds. The ordinance contained this exception:
'Section 3. Exception.-Public dissemination, through radio loudspeakers, of items of news and matters of public concern and athletic activities shall not be deemed a violation of this section provided that the same be done under permission obtained from the Chief of Police.'
This Court held the ordinance 'unconstitutional on its face,' Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 1149 because the quoted section established a 'previous restraint' on free speech with 'no standards prescribed for the exercise' of discretion by the Chief of Police. When ordinances undertake censorship of speech or religious practices before permitting their exercise, the Constitution forbids their enforcement.  The Court said in the Saia case, 334 U.S. at pages 560, 561, 68 S.Ct. at pages 1149, 1150:
'The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint is difficult to imagine.'
This ordinance is not of that character. It contains nothing comparable to the above quoted § 3 of the ordinance in the Saia case. It is an exercise of the authority granted to the city by New Jersey 'to prevent disturbing noises,' N.J.Stat.Ann., tit. 40:48-1(8), nuisances well within the municipality's power to control. The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community.  A state or city may prohibit acts or things reasonably thought to bring evil or harm to its people.
'The relevant provisions of the ordinance apply only to (1) vehicles (2) containing an instrument in the nature of a sound amplifier or any other instrument emitting loud and raucous noises and (3) such vehicle operated or standing upon the public streets, alleys or thoroughfares of the city.' If that means that only amplifiers that emit, in the language of the ordinance, 'loud and raucous noises' are barred from the streets, we have a problem of regulation. The dissents accept that view.  So did the appellant in his Statement as to Jurisdiction and his brief.  Although this Court must decide for itself whether federal questions are presented and decided,  we must accept the state court's conclusion as to the scope of the ordinance.  We accept the determination of New Jersey that § 4 applies only to vehicles with sound amplifiers emitting loud and raucous noises. Courts are inclined to adopt that reasonable interpretation of a statute which removes it farthest from possible constitutional infirmity. Cox v. New Hampshire, 312 U.S. 569, 575, 576, 61 S.Ct. 762, 765, 85 L.Ed. 1049, 133 A.L.R. 1396; cf. United States v. C.I.O., 335 U.S. 106, 120, 68 S.Ct. 1349, 1356. We need not determine whether this ordinance so construed is regulatory or prohibitory. All regulatory enactments are prohibitory so far as their restrictions are concerned, and the prohibition of this ordinance as to a use of streets is merely regulatory. Sound trucks may be utilized in places such as parks or other open spaces off the streets. The constitutionality of the challenged ordinance as violative of appellant's right of free speech does not depend upon so narrow an issue as to whether its provisions are cast in the words of prohibition or regulation.  The question is whether or not there is a real abridgment of the rights of free speech.
Of course, even the fundamental rights of the Bill of Rights are not absolute. The Saia case recognized that in this field by stating 'The hours and place of public discussion can be controlled.'  It was said decades ago in an opinion of this Court delivered by Mr. Justice Holmes, Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, that:
'The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.'
Hecklers may be expelled from assemblies and religious worship may not be disturbed by those anxious to preach a doctrine of atheism. The right to speak one's mind would often be an empty privilege in a place and at a time beyond the protecting hand of the guardians of public order.
While this Court, in enforcing the broad protection the Constitution gives to the dissemination of ideas, has invalidated an ordinance forbidding a distributor of pamphlets or handbills from summoning householders to their doors to receive the distributor's writings, this was on the ground that the home owner could protect himself from such intrusion by an appropriate sign 'that he is unwilling to be disturbed.' The Court never intimated that the visitor could insert a foot in the door and insist on a hearing. Martin v. City of Struthers, 319 U.S. 141, 143, 148, 63 S.Ct. 862, 863, 865, 87 L.Ed. 1313. We do not think that the Struthers case requires us to expand this interdiction of legislation to include ordinance against obtaining an audience for the broadcaster's ideas by way of sound trucks with loud and raucous noises on city streets. The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it.  In his home or on the street he is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality.
City streets are recognized as a normal place for the exchange of ideas by speech or paper. But this does not mean the freedom is beyond all control. We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities. On the business streets of cities like Trenton, with its more than 125,000 people, such distractions would be dangerous to traffic at all hours useful for the dissemination of information, and in the residential thoroughfares the quiet and tranquility so desirable for city dwellers would likewise be at the mercy of advocates of particular religious, social or political persuasions. We cannot believe that rights of free speech compel a municipality to allow such mechanical voice amplification on any of its streets.
The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention. This is the phase of freedom of speech that is involved here. We do not think the Trenton ordinance abridges that freedom. It is an extravagant extension of due process to say that because of it a city cannot forbid talking on the streets through a loud speaker in a loud and raucous tone. Surely such an ordinance does not violate our people's 'concept of ordered liberty' so as to require federal intervention to protect a citizen from the action of his own local government. Cf. Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. Opportunity to gain the public's ears by objectionab y amplified sound on the streets is no more assured by the right of free speech than is the unlimited opportunity to address gatherings on the streets.  The preferred position  of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself. That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter, is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open. Section 4 of the ordinance bars sound trucks from broadcasting in a loud and raucous manner on the streets. There is no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers. We think that the need for reasonable protection in the homes or business houses from the distracting noises of vehicles equipped with such sound amplifying devices justifies the ordinance.
Mr. Justice MURPHY dissents.
^1 See Judicial Code § 237(a), 28 U.S.C. § 344(a), now 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; New Orleans Water Works Co. v. New Orleans, 164 U.S. 471, 17 S.Ct. 161, 41 L.Ed. 518.
^2 Ordinances regulating or prohibiting sound devices were upheld in People v. Phillips, 147 Misc. 11, 263 N.Y.S. 158; Maupin v. City of Louisville, 284 Ky. 195, 144 S.W.2d 237; Hamilton v. City of Montrose, 109 Colo. 228, 124 P.2d 757.
Injunctions have also dealt with nuisances from the playing of mechanical music for advertising purposes. Weber v. Mann, Tex.Civ.App., 42 S.W.2d 492; Stodder v. Rosen Talking Machine Co., 241 Mass. 245, 135 N.E. 251, 22 A.L.R. 1197; Id., 247 Mass. 60, 141 N.E. 569.
^3 Lovell v. City of Griffin, 3 3 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352.
^4 Chicago, B. & Q.R. Co. v. State of Illinois ex rel. Drainage Com'rs, 200 U.S. 561, 592, 26 S.Ct. 341, 349, 50 L.Ed. 596, 4 Ann.Cas. 1175; Nebbia v. New York, 291 U.S. 502, 525, 54 S.Ct. 505, 510, 78 L.Ed. 940, 89 A.L.R. 1469; Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 82, 66 S.Ct. 850, 851, 90 L.Ed. 1096.
'Colie, Justice (For reversal.) I am of the opinion that the judgment under review should be reversed but I do not agree that Section 4 of the ordinance is an unconstitutional exercise of the police power. The privilege of a citizen to use the streets for the communication of ideas is not absolute but must be exercised in subordination to the general comfort and convenience. Most assuredly the prohibition against making 'loud and raucous' noises is a reasonable regulation.'
Id., 135 N.J.L. at page 585, 52 A.2d at page 809: 'There is not a scintilla of evidence that the music or voice was loud or raucous, and under the wording of Section 4 such proof is an essential prerequisite to a finding of guilt of a violation.'
The New Jersey courts may have concluded that the necessity of search by the patrolman to locate the sound truck on a street was sufficient evidence of loudness and raucousness.
135 N.J.L. 584, at pages 588, 589, 52 A.2d 806, at page 808, Eastwood, J., for reversal, speaking for himself and three other members said: 'It appears to us, and we so hold, that the primary aim of Section 4 of the Ordinance, under review, is to prohibit 'loud and raucous noises', at all times and in all places in the City of Trenton, emanating from sound trucks, loud speakers, sound amplifiers, radios or phonographs, equipped with loud speakers or sound amplifiers, or other similar instruments. It is thus clear that Section 4 of the Ordinance is not regulatory within a proper exercise of the police power of the municipality.'
Id., 135 N.J.L. at page 590, 52 A.2d at page 809: 'We conclude that Section 4 of the Ordinance under attack represents an attempt by the municipality under the guise of regulation, to prohibit and outlaw, under all circumstances and conditions, the use of sound amplifying systems.'
Perhaps the last-quoted paragraph assumes that all sound trucks emit loud and raucous noises.
^7 He wrote: 'Section 4 of the Ordinance, under which appellant was charged, prohibits any person from using for any purpose whatsoever, a loud speaker or sound amplifier which emits therefrom 'loud and raucous noises' and is attached to any vehicle operated or standing upon the streets of the City of Trenton.'
In the brief this appears:
'This ordinance does not purport to prohibit loud and raucous noises. It attempts to prohibit sound devices which emit therefrom loud and raucous noises. This does not validate the ordinance or save it. In order to be a valid regulation the law must deal with the abuse and not with the use of the thing.'
^9 Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148; Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049, 133 A.L.R. 1396; Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669.
^10 In the exercise of the police power acts or things which could not be barred completely from use may be prohibited under some conditions and circumstances when they interfere with the rights of others. Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049, 133 A.L.R. 1396; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Sage Stores Co. v. Kansas, 323 U.S. 32, 36, 65 S.Ct. 9, 10, 89 L.Ed. 25; Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153, 159, compare 160, 37 S.Ct. 28-30, 61 L.Ed. 217, Ann.Cas. 1917B, 643; Powell v. Pennsylvania, 127 U.S. 678, 682, 683, 8 S.Ct. 992, 994, 1257, 32 L.Ed. 253; Mugler v. Kansas, 123 U.S. 623, 657-663, 8 S.Ct. 273, 294-298, 31 L.Ed. 205. For examples of federal prohibitions, see Carolene Products Co. v. United States, 323 U.S. 18, 27, Third, 65 S.Ct. 1, 6, 89 L.Ed. 15, 155 A.L.R. 1371; United States v. Darby, 312 U.S. 100, 113, 116, 61 S.Ct. 451, 456, 458, 85 L.Ed. 609, 132 A.L.R. 1430; Kentucky Whip & Collar Co. v. Illinois Cent. R. Co., 299 U.S. 334, 348, 57 S.Ct. 277, 281, 81 L.Ed. 270; Butifield v. Stranahan, 192 U.S. 470, 492, 493, 24 S.Ct. 349, 353, 354, 48 L.Ed. 525.
^11 Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645; Murdock v. Pennsylvania, 319 U.S. 105, 109, 63 S.Ct. 870, 873, 87 L.Ed. 1292, 146 A.L.R. 81; Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352; Whitney v. California, 274 U.S. 357, 371, 373, 47 S.Ct. 641, 646, 647, 71 L.Ed. 1095; Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244.
'Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.'
Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213, 128 A.L.R. 1352:
'When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. Equally obvious is it that a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.'