Feiner v. New York/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice MINTON concurs, dissenting.

Feiner, a university student, made a speech on a street corner in Syracuse, New York, on March 8, 1949. The purpose of the speech was to publicize a meeting of the Young Progressives of America to be held that evening. A permit authorizing the meeting to be held in a public school auditorium had been revoked and the meeting shifted to a local hotel.

Feiner delivered his speech in a small shopping area in a predominantly colored residential section of Syracuse. He stood on a large box and spoke over loudspeakers mounted on a car. His audience was composed of about 75 people, colored and white. A few minutes after he started two police officers arrived.

The speech was mainly devoted to publicizing the evening's meeting and protecting the revocation of the permit. It also touched on various public issues. The following are the only excerpts revealed by the record:

'Mayor Costello (of Syracuse) is a champagne-sipping bum; he does not speak for the negro people.'

'The 15th Ward is run by corrupt politicians, and there are horse rooms operating there.'

'President Truman is a bum.'

'Mayor O'Dwyer is a bum.'

'The American Legion is a Nazi Gestapo.'

'The negroes don't have equal rights; they should rise up in arms and fight for their rights.'

There was some pushing and shoving in the crowd and some angry muttering. That is the testimony of the police. But there were no fights and no 'disorder' even by the standards of the police. There was not even any heckling of the speaker.

But after Feiner has been speaking about 20 minutes a man said to the police officers, 'If you don't get that son of a bitch off, I will go over and get him off there myself.' It was then that the police ordered Feiner to stop speaking; when he refused, they arrested him.

Public assemblies and public speech occupy an important role in American life. One high function of the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. When a speaker mounts a platform it is not unusual to find him resorting to exaggeration, to vilification of ideas and men, to the making of false charges. But those extravagances, as we emphasized in Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct.

A speaker may not, of course, incite a riot any more than he may incite a breach of the peace by the use of 'fighting words'. See Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. But this record shows no such extremes. It shows an unsympathetic audience and the threat of one man to haul the speaker from the stage. It is against that kind of threat that speakers need police protection. If they do not receive it and instead the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censorship has all the vices of the censorship from city halls which we have repeatedy struck down. See Lovell v. City of Griffin, 303 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. State of Connecticut, supra; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 891, 87 L.Ed. 1292; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574.