Poulos v. New Hampshire/Dissent Douglas

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

The Court concedes, as indeed it must under our decisions, see Royall v. State of Virginia, 116 U.S. 572, 6 S.Ct. 510, 29 L.Ed. 735; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, that if denial of the right to speak had been contained in a statute, appellant would have been entitled to flout the law, to exercise his constitutional right to free speech, to make the address on July 2, 1950, and when arrested and tried for violating the statute, to defend on the ground that the law was unconstitutional. An unconstitutional statute is not necessarily a nullity; it may have intermediate consequences binding upon people. See Chicot County Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329. But when a legislature undertakes to proscribe the exercise of a citizen's constitutional right to free speech, it acts lawlessly; and the citizen can take matters in his own hands and proceed on the basis that such a law is no law at all. See De Jonge v. State of Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278.

The reason is the preferred position granted freedom of speech, freedom of press, freedom of assembly, and freedom of religion by the First Amendment. See Thomas v. Collins, supra, 323 U.S. at page 530, 65 S.Ct. at page 322, 89 L.Ed. 430; Murdock v. Com. of Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292. The command of the First Amendment (made applicable to the States by the Fourteenth) is that there shall be no law which abridges those civil rights. The matter is beyond the power of the legislature to regulate, control, or condition. The case is therefore quite different from a legislative program in the field of business, labor, housing, and the like where regulation is permissible and the claim of unconstitutionality usually can be determined only by the manner or degree of application of the statute to an aggrieved person.

A legislature that undertakes to license or censor the right of free speech is imposing a prior restraint, see Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, odious in our history. The Constitution commands that government keep its hands off the exercise of First Amendment rights. No matter what the legislature may say, a man has the right to make his speech, print his handbill, compose his newspaper, and deliver his sermon without asking anyone's permission. The contrary suggestion is abhorrent to our traditions.

If the citizen can flout the legislature when it undertakes to tamper with his First Amendment rights, I fail to see why he may not flout the official or agency who administers a licensing law designed to regulate the exercise of the right of free speech. defiance of a statute is hardly less harmful to an orderly society than defiance of an administrative order. The vice of a statute, which exacts a license for the right to make a speech, is that it adds a burden to the right. The burden is the same when the officials administering the licensing system withhold the license and require the applicant to spend months or years in the courts in order to win a right which he Constitution says no government shall deny.

It was said by way of dictum in Royall v. State of Virginia, supra, 116 U.S. at page 582, 6 S.Ct. at page 515, 29 L.Ed. 735, that 'as a general rule,' if an officer, entrusted with a licensing power, has only 'ministerial' duties to perform, 'the remedy by mandamus would be appropriate to compel the officer' to issue the license. I do not agree that the present statute, as construed by the New Hampshire court, imposes merely a ministerial duty on the city council. The construction, by which we are bound, gives wide range to the discretion of the city council:

'The discretion thus vested in the authority 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 (here the parks), 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. Cox, 91 N.H. 137, 143, 16 A.2d 508, 513.

The requirement that the licensing authority stay within 'the bounds of reason' and that it be 'free from improper or inappropriate considerations and from unfair discrimination' is a command that it act reasonably, not capriciously or arbitrarily. But even a reasonable regulation of the right to free speech is not compatible with the First Amendment. Of course, a state court deny the use of a park to one religious group if a prior application had been granted to another group and the meetings would conflict. But there is no suggestion by New Hampshire that its system of regulation vests the licensing authority with only that limited power. The gloss which the New Hampshire court has placed on the statute grants a power reasonably to regulate free speech. That unfortunately is a doctrine that has been slowly creeping into our constitutional law. It has no place there. It is a doctrine dangerous to liberty and destructive of the great rights guaranteed by the First Amendment.

So, one answer to the Court's holding that appellant should have gone into court to compel the issuance of a license is that the licensing power was discretionary not ministerial and that a discretionary power to license free speech is unconstitutional.

There is another answer which is found in Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. In that case it was argued that a licensing power in a state statute be construed so as to limit the power of the licensing authority to ministerial acts. We rejected that offer on two grounds. In the first place, the statute had not been so narrowly construed by the state court. In the second place, the availability of judicial relief would not in any event save the statute. What Mr. Justice Roberts, writing for a unanimous Court, said was this. 310 U.S. at page 306, 60 S.Ct. at page 904:

' * *  * the availability of a judicial remedy for abuses in      the system of licensing still leaves that system one of      previous restraint which, in the field of free speech and      press, we have held inadmissible. A statute authorizing     previous restraint upon the exercise of the guaranteed      freedom by judicial decision after trial is as obnoxious to      the Constitution as one providing for like restraint by      administrative action.'

What Mr. Justice Roberts said needs to be repeated over and again. 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. That is a previous restraint condemned by history and at war with the First Amendment. The nature of the particular official who has the power to grant or deny the authority does not matter. Those who wrote the First Amendment conceived of the right to free speech as wholly independent of the prior restraint of anyone. The judiciary was not granted a privilege of restraint withheld from other officials. For history proved that judges too were sometimes tyrants.