Poulos v. New Hampshire/Opinion of the Court

by Stanley Forman Reed

United States Supreme Court

345 U.S. 395

Poulos  v.  New Hampshire

 Argued: Feb. 3, 1953. --- Decided: April 27, 1953

This appeal presents the validity of a conviction of appellant for conducting religious services in a public park of Portsmouth, New Hampshire, without a required license, when proper application for the license had been arbitrarily and unreasonably refused by the City Council. The conclusion depends upon consideration of the principles of the First Amendment secured against state abridgment by the Fourteenth. ^[1]

Appellant is one of Jehovah's Witnesses. Permission for appellant and another witness, now deceased, was sought to conduct services in Goodwin Park on June 25 and July 2. They offered to pay all proper fees and charges, and complied with the procedural requirements for obtaining permission to use the park. When the license was refused on May 4, appellant nevertheless held the planned services and continued them until arrested. He was charged with violation of § 22 of the city ordinance set out below. ^[2] On conviction in the Municipal Court he was fined $20 and took an appeal which entitled him to a plenary trial before the Superior Court. Before that trial appellant moved to dismiss the complaints on the ground that 'the ordinance as applied was unconstitutional and void.' This motion on the constitutional question, pursuant to New Hampshire practice, was transferred to the Supreme Court. It ruled, as it had on a former prosecution under a different clause of an identical section, so far as pertinent, of a New Hampshire statute, against one Cox. State v. Cox, 91 N.H. 137, 143, 16 A.2d 508, that:

'The discretion thus vested in the authority (city council) is 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. A systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways, is the statutory mandate. The licensing authority has no delegation of power in excess of that which the legislature granting the power has, and the legislature attempted to delegate no power it did not possess.' State v. Derrickson, 97 N.H. 91, 92, 81 A.2d 312, 313.

In Cox v. State of New Hampshire, 312 U.S. 569, at page 572, 61 S.Ct. 762, at page 765, 85 L.Ed. 1049, we affirmed on appeal from the New Hampshire conviction of Cox, acknowledging the usefulness of the state court's carefully phrased interpretive limitation on the licensing authority. The Supreme Court of New Hampshire went on to hold the challenged clause in this present prosecution valid also in these words:

'The issue which this case presents is whether the city of Portsmouth can prohibit religious and church meetings in Goodwin Park on Sundays under a licensing system which treats all religious groups in the same manner. Whether a city could prohibit religious meetings in all of its parks is a doubtful question which we need not decide in this case. What we do decide is that a city may 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.'

Thereupon it discharged the case.

The result of this action was to open the case now here in the Superior Court for trial. At the conclusion of the evidence, appellant raised federal issues by a motion to dismiss the complaint set out below. ^[3] The Superior Court passed upon the issues raised. It held that Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, determined the validity of the section of the ordinance under attack; that the refusal of the licenses by the City Council was arbitrary and unreasonable, but refused to dismiss the prosecution on that ground because:

'The respondents could have raised the question of their right to licenses to speak in Goodwin Park by proper civil proceedings in this Court, but they chose to deliberately violate the ordinance.'

On appeal, the Supreme Court of New Hampshire affirmed. ^[4] It held the ordinance valid on its face under Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. While the Cox case involved the clause of the ordinance, § 22 relating to 'parade or procession upon any public street or way,' the New Hampshire Supreme Court thought the present prosecution was 'under a valid ordinance which requires a license before open air public meetings may be held.' This was the first ruling on the public speech clause. Cf. State v. Cox, 91 N.H. at page 143, 16 A.2d 508; Cox v. State of New Hampshire, 312 U.S. at page 573, 61 S.Ct. at page 764, 85 L.Ed. 1049. As the ordinance was valid on its face the state court determined the remedy was by certiorari to review the unlawful refusal of the Council to grant the license, not by holding public religious services in the park without a license, and then defending because the refusal of the license was arbitrary.

Appellant's challenge on federal grounds to the action and conclusion of the New Hampshire courts is difficult to epitomize. By paragraph 3 of his motion to dismiss, note 3, supra, appellant relied on the principles of the First Amendment for protection against the city ordinance. In his statement of jurisdiction, the question presented, No. I, the illegal denial of his application for a license, was urged as a denial of First Amendment principles. ^[5] In his brief, he phrases the issue differently as indicated below. ^[6] We conclude that appellant's contentions are, first, no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment; second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion. The abridgment would be because of delay through judicial proceedings to obtain the right of speech and to carry out religious exercises. The due process question raised by appellant as a part of the latter constitutional contention disappears by our holding, as indicated later in this opinion, that the challenged clause of the ordinance and New Hampshire's requirement for following a judicial remedy for the arbitrary refusal are valid. This analysis showing an attack on the ordinance as applied as repugnant to the principles of the First Amendment and a determination of its validity by the New Hampshire Supreme Court requires us to take jurisdiction by appeal. ^[7] The state ground for affirmance, i.e., the failure to take certiorari from the action refusing a license, depends upon the constitutionality of the ordinance.

First. We consider the constitutionality of the requirement that a license from the city must be obtained before conducting religious exercises in Goodwin Park. Our conclusion takes into consideration the interpretive limitation repeated from Cox v. New Hampshire, quoted at p. 2 of this opinion (73 S.Ct. 763). This state interpretation is as though written into the ordinance itself. Winters v. People of State of New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840. It requires uniform, nondiscriminatory and consistent administration of the granting of licenses for public meetings on public streets or ways or such a park as Goodwin Park, abutting thereon. ^[8] The two opinions of the Supreme Court of New Hampshire do not state in precise words that reasonable opportunities for public religious or other meetings on public property must be granted under this ordinance to such religious organizations as Jehovah's Witnesses. In the former appeal of this controversy in the Derrickson case, supra, New Hampshire decided that the city could exclude, without discrimination, all religious meetings from Goodwin Park, if it so desired, leaving that one park, among several, there being no showing of its unique advantages for religious meetings, as a retreat for quietness, contemplation or other nonreligious activities. The Supreme Court refused to determine whether religious meetings could be excluded from all parks at all times. That has not been decided in this appeal. Informed witnesses at this trial without contradiction testified that no public religious services were ever licensed in any Portsmouth park. There was no allocation of parks between religious and nonreligious meetings. The Superior Court held the refusal of this license arbitrary and unreasonable. Obviously the license required is not the kind of prepublication license deemed a denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved. ^[9] While there was no assertion of the invalidity of the ordinance on its face, the Supreme Court determined the validity of the ordinance as applied. See Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 287, 42 S.Ct. 106, 107, 66 L.Ed. 239; Charleston Federal Sav. & Loan Ass'n v. Alderson, 324 U.S. 182, 185-186, 65 S.Ct. 624, 627, 89 L.Ed. 857. ^[10] We can only conclude from these decisions that the Supreme Court of New Hampshire has held that the ordinance is valid and, as now written, made it obligatory upon Ports-mouth to grant a license for these religious services in Goodwin Park. The appellant's contention that the Council's application of the ordinance so as to bar all religious meetings in Goodwin Park without a license, made the ordinance unconstitutional, was not sustained by the Supreme Court of New Hampshire. Appellant's brief, p. 3, continues the claim in this Court as follows:

'This exception presented to the Supreme Court of New Hampshire the question. It is whether the ordinance as enforced by the City Council, under its policy to refuse religious meetings in the park, was a violation of the federal Constitution.'

By its construction of the ordinance the state left to the licensing officials no discretion as to granting permits, no power to discriminate, no control over speech. There is therefore no place for narrowly drawn regulatory requirements or authority. The ordinance merely calls for the adjustment of the unrestrained exercise of religions with the reasonable comfort and convenience of the whole city. Had the refusal of the license not been in violation of the ordinance, the Supreme Court would not, we are sure, have required the appellant in its next application to go through the futile gesture of certiorari only to be told the Portsmouth Council's refusal of a license was a valid exercise of municipal discretion under the ordinance and the Fourteenth Amendment. Such state conclusions are not invalid, although they leave opportunity for arbitrary refusals that delay the exercise of rights.

The principles of First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction. It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquillity without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion. ^[11] When considering specifically the regulation of the use of public parks, this Court has taken the same position. See the quotation from the Hague case below and Kunz v. People of State of New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 314-315, 95 L.Ed. 280; Saia v. People of State of New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574. In these cases, the ordinances were held invalid, not because they regulated the use of the parks for meeting and instruction but because they left complete discretion to refuse the use in the hands of officials. 'The right to be heard is placed in the uncontrolled discretion of the Chief of Police.' 334 U.S. at page 560, 68 S.Ct. at page 1150, 92 L.Ed. 1574. '(W)e 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.' 340 U.S. at page 294, 71 S.Ct. at page 315, 95 L.Ed. 280.

There is no basis for saying that freedom and order are not compatible. That would be a decision of desperation. Regulation and suppression are not the same, ^[12] either in purpose or result, and courts of justice can tell the difference. We must and do assume that with the determination of the Supreme Court of New Hampshire that the present ordinance entitles Jehovah's Witnesses to hold religious services in Goodwin Park at reasonable hours and times, the Portsmouth Council will promptly and fairly administer their responsibility in issuing permits on request.

Second. New Hampshire's determination that the ordinance is valid and that the Council could be compelled to issue the requested license on demand brings us face to face with another constitutional problem. May this man be convicted for holding a religious meeting without a license when the permit required by a valid enactment-the ordinance in this case-has been wrongfully refused by the municipality?

Appellant's contention is that since the Constitution guarantees the free exercise of religion, the Council's unlawful refusal to issue the license is a complete defense to this prosecution. His argument asserts that if he can be punished for violation of the valid ordinance because he exercised his right of free speech, after the wrongful refusal of the license, the protection of the Constitution is illusory. He objects that by the Council's refusal of a license, his right to preach may be postponed until a case, possibly after years, reaches this Court for final adjudication of constitutional rights. Poulos takes the position that he may risk speaking without a license and defeat prosecution by showing the license was arbitrarily withheld.

It must be admitted that judicial correction of arbitrary refusal by administrators to perform official duties under valid laws is exulcerating and costly. But to allow applicants to proceed without the required permits to run businesses, erect structures, purchase firearms, transport or store explosives or inflammatory products, hold public meetings without prior safety arrangements or take other unauthorized action is apt to cause breaches of the peace or create public dangers. The valid requirements of license are for the good of the applicants and the public. It would be unreal to say that such official failures to act in accordance with state law, redressable by state judicial procedures, are state acts violative of the Federal Constitution. Delay is unfortunate but the expense and annoyance of litigation is a price citizens must pay for life in an orderly society where the rights of the First Amendment have a real and abiding meaning. Nor can we say that a state's requirement that redress must be sought through appropriate judicial procedure violates due process. ^[13]

It is said that Royall v. State of Virginia, 116 U.S. 572, 6 S.Ct. 510, 29 L.Ed. 735; Cantwell v. State of Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213, and Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, stand as decisions contrary to the New Hampshire judgment. In the Royall case two statutes were involved. One laid down the requirement that before attorneys could practice law in Virginia they had to obtain a special 'revenue license.' At the time this statute was enacted, Virginia law permitted license fees to be paid in either 'tax due coupons' or money. Subsequently Virginia passed another statute with which the Royall case was concerned. It provided that license fees could only be paid in 'lawful money of the United States'. Royall tendered 'tax due coupons' for the amount of the license fee, had them refused, and Royall then proceeded to practice law without the license. The statute requiring payment in money was held unconstitutional:

'Admitting this, it is still contended, on behalf of the commonwealth, that it was unlawful for the plaintiff in error to practice his profession without a license, and that his remedy was against the officers to compel them to issue it. It is doubtless true, as a general rule, that where the officer whose duty it is to issue a license refuses to do so, and that duty is merely ministerial, and the applicant has complied with all the conditions that entitle him to it, the remedy by mandamus would be appropriate to compel the officer to issue it. That rule would apply to cases where the refusal of the officer was willful and contrary to the statute under which he was commissioned to act. But here the case is different. The action of the officer is based on the authority of an act of the general assembly of the state, which, although it may be null and void, because unconstitutional, as against the applicant, gives the color of official character to the conduct of the officer in his refusal; and although, at the election of the aggrieved party, the officer might be subjected to the compulsory process of mandamus to compel the performance of an official duty, nevertheless the applicant, who has done everything on his part required by the law, cannot be regarded as violating the law if, without the formality of a license wrongfully withheld from him, he pursues the business of his calling, which is not unlawful in itself, and which, under the circumstances, he has a constitutional right to prosecute. As to the plaintiff in error, the act of the general assembly of the state of Virginia forbidding payment of his license tax in its coupons, receivable for that tax by a contract protected by the constitution of the United States, is unconstitutional, and its unconstitutionality infects and nullifies the antecedent legislation of the state, of which it becomes a part, when applied, as in this case, to enforce an unconstitutional enactment against a party, not only without fault, but seeking merely to exercise a right secured to him by the constitution. * * *

'In the present case the plaintiff in error has been prevented from obtaining a license to practice his profession, in violation of his rights under the constitution of the United States. To punish him for practicing it without a license thus withheld is equally a denial of his rights under the constitution of the United States, and the law under the authority of which this is attempted must on that account and in his case be regarded as null and void.' 116 U.S. at pages 582-583, 6 S.Ct. at page 515, 29 L.Ed. 735.

In Cantwell v. State of Connecticut, the statute in question forbade solicitation for religious causes without a license with this discretionary power in the secretary of the public welfare council:

'Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect.' 310 U.S. at page 302, 60 S.Ct. at page 902, 84 L.Ed. 1213.

'If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.' Id., 310 U.S. at page 305, 60 S.Ct. at page 904.

In the Thomas case, a statute of Texas was involved that required labor union organizers to obtain an organizer's card before soliciting membership. Vernon's Ann.Civ.St. art. 5154a, § 5, 323 U.S. at page 519, 65 S.Ct. at page 317, 89 L.Ed. 430, note 1. He was enjoined from soliciting membership without the card and violated the injunction. 323 U.S. at page 518, 65 S.Ct. at page 317. This Court concluded that Thomas was forbidden by the statute from making labor union speeches anywhere in Texas without a permit for solicitation of membership. 323 U.S. at page 532 et seq., 65 S.Ct. at page 315. The Court treated the statute as a prohibition of labor union discussion without an organizer's card anywhere within the bounds of Texas legislative power. It said:

'We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.' Id., 323 U.S. at page 540, 65 S.Ct. at page 327.

The Court allowed the unconstitutionality of the statute to be used as a complete defense to contempt of the injunction.

It is clear to us that neither of these decisions is contrary to the determination of the Supreme Court of New Hampshire. In both of the above cases the challenged statutes were held unconstitutional. In the Royall case, the statute requiring payment of the license fee in money was unconstitutional. In the Cantwell case the statute had not been construed by the state court 'to impose a mere ministerial duty on the secretary of the welfare council.' The right to solicit depended on his decision as to a 'religious cause.' 310 U.S. at page 306, 60 S.Ct. at page 904, 84 L.Ed. 1213. Therefore we held that a statute authorizing this previous restraint was unconstitutional even though an error might be corrected after trial. In the Thomas case the section of the Texas Act was held prohibitory of labor speeches anywhere on private or public property without registration. This made § 5 unconstitutional. The statutes were as though they did not exist. Therefore there were no offenses in violation of a valid law. In the present prosecution there was a valid ordinance, an unlawful refusal of a license, with remedial state procedure for the correction of the error. The state had authority to determine, in the public interest, the reasonable method for correction of the error, that is, by certiorari. Our Constitution does not require that we approve the violation of a reasonable requirement for a license to speak in public parks because an official error occurred in refusing a proper application.

Affirmed.

Notes

1. Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155.
2. 'Section 22. License Required. 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.
3. '1. The undisputed evidence shows that the members of the city council and the city council itself acted arbitrarily, capriciously and without support of law and of fact when they denied the application made by Jehovah's witnesses in behalf of the defendants to deliver the public talks upon the occasions in question.
4. Poulos v. State of New Hampshire, 97 N.H. 352, 88 A.2d 860, 863.
5. 'Is the construction of the laws of New Hampshire and the ordinance in question-so as to completely deny the appellant the right to challenge the federal constitutionality of the ordinance, as enforced, construed and applied in criminal proceedings brought to punish appellant for holding a meeting and giving a speech in the city park of Portsmouth without a permit, which was applied for and illegally denied according to the holdings of the courts below-an abridgment of the rights of appellant to freedom of speech and assembly contrary to the First and Fourteenth Amendments to the Constitution of the United States?'
6. 'Is the administration and enforcement of the ordinance by the City Council, requiring a permit for holding meetings in the parks of Portsmouth so as to deny all applications made by religious organizations to hold religious meetings and deliver religious talks in the parks of Portsmouth, an abridgment of freedom of speech, assembly and worship in violation of the First and Fourteenth Amendments to the United States Constitution?
7. King Mfg. Co. v. City Council of Augusta, 277 U.S. 100, 101, 48 S.Ct. 489, Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869. When the appeal was docketed we postponed determination of jurisdiction of the appeal to the hearing on the merits. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), Rules of the Supreme Court No. 12(5), 28 U.S.C.A.
8. State v. Derrickson, 97 N.H. 91, 94, 81 A.2d 312.
9. Niemotko v. Maryland, 340 U.S. 268, concurrence at page 282, 71 S.Ct. 325, 333, 95 L.Ed. 267: 'A licensing standard which gives an official authority to censor the content of a speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like.'
10. 'It has been conceded by the defense on this transfer, as well as on the first one, that the ordinance is valid on its face. It is identical in language with the statute that was construed as valid in State v. Cox, 91 N.H. 137, 16 A.2d 508, which was affirmed in Cox v. (State of) New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. It is not disputed that the ordinance applies to the park that was the scene of the open air meetings in question. No objection has been made to the application of the ordinance to the areas where the meetings took place, and no exception taken to any finding or ruling with respect thereto.' 88 A.2d 860, 861.
11. Constitutionally protected right to circulate publications does not include door-to-door canvassing for subscriptions contrary to the reasonable limitations of a municipal ordinance. See Breard v. City of Alexandria, 341 U.S. 622, 641, 71 S.Ct. 920, 932, 95 L.Ed. 1233.
12. Near v. State of Minnesota, 283 U.S. 697, 712, 51 S.Ct. 625, 629, 75 L.Ed. 1357; Breard v. City of Alexandria, 341 U.S. 622, 641, 71 S.Ct. 920, 932, 95 L.Ed. 1233; First Amendment.
13. It may be that in some states, the proof of proper application and unlawful refusal is a sufficient defense. It is also true that others punish activities without a license, following an unlawful

refusal. Commonwealth v. McCarthy, 225 Mass. 192, 114 N.E. 287; State v. Stevens, 78 N.H. 268, 99 A. 723, L.R.A.1917C, 528; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627; City of Montpelier v. Mills, 171 Ind. 175, 85 N.E. 6; Commonwealth v. Gardner, 241 Mass. 86, 134 N.E. 638; State v. Orr, 68 Conn. 101, 35 A. 770, 34 L.R.A. 279; City of Malden v. Flynn, 318 Mass. 276, 61 N.E.2d 107. A close parallel exists between unlawful refusals and failure to apply for license on the ground that such application would be unavailing. Such a defense is not allowed. 'It is well settled that where a licensing ordinance, valid on its face, prohibits certain conduct unless the person has a license, one who without a license engages in that conduct can be criminally prosecuted without being allowed to show that the application for a license would have been unavailing. * * * In short, the individual is given the choice of securing a license, or staying out of the occupation, or, before he acts, seeking a review in the civil courts of the licensing authority's refusal to issue him a license. Likewise in the case at bar the defendants are given the choice of complying with the regulation, or not engaging in the regulated activity, or, before they act, petitioning the appropriate civil tribunals for a modification of or exception from the regulation.' United States v. Slobodkin, D.C., 48 F.Supp. 913, 917. See cases cited, particularly Hall v. Geiger Jones Co., 242 U.S. 539, 554, 37 S.Ct. 217, 222, 61 L.Ed. 480.