U.S. Supreme Court
SCHNEIDER v. NEW JERSEY, 308 U.S. 147 (1939)
308 U.S. 147
STATE OF NEW JERSEY (TOWN OF IRVINGTON).
PEOPLE OF STATE OF CALIFORNIA.
CITY OF MILWAUKEE.
NICHOLS et al.
COMMONWEALTH OF MASSACHUSETTS.
Nos. 11, 13, 18, and 29.
Argued and Submitted Oct. 13-16, 1939.
Decided Nov. 22, 1939.
[308 U.S. 147, 149] Messrs. Joseph F. Rutherford and Olin R. Moyle both of Brooklyn, N.Y., for petitioner.
Mr. Robert I. Morris, of Newark, N.J., for respondent.
Messrs. Osmond K. Fraenkel, of New York City, and A. L. Wirin, of Los Angeles, Cal., for appellant.
Messrs. Frederick von Schrader, Ray L. Chesebro, Leon T. David, and Bourke Jones, all of Los Angeles, Cal., for appellee.
[308 U.S. 147, 152] Mr. A. W. Richter, of Milwaukee, Wis., for petitioner.
Mr. Carl F. Zeidler, of Milwaukee, Wis., for respondent.
[308 U.S. 147, 153] Messrs. Sidney S. Grant, of Boston, Mass., and Osmond K. Fraenkel, of New York City, for appellants.
Messrs. Edward O. Proctor and Paul A. Dever, both of Boston, Mass., for appellee.
Mr. Justice ROBERTS delivered the opinion of the Court.
cases are here, each of which presents the question whether regulations
embodied in a municipal ordinance [308 U.S. 147, 154] abridge the
freedom of speech and of the press secured against state invasion by the
Fourteenth Amendment of the Constitution, U.S.C.A. 1
The Municipal Code of the City of Los Angeles, 1936, provides:
28.00. 'Hand-Bill' shall mean any hand-bill, dodger, commercial
advertising circular, folder, booklet, letter, card, pamphlet, sheet,
poster, sticker, banner, notice or other written, printed or painted
matter calculated to attract attention of the public.'
No person shall distribute any hand-bill to or among pedestrians along
or upon any street, sidewalk or park, or to passengers on any street
car, or throw, place or attach any hand-bill in, to or upon any
automobile or other vehicle.'
The appellant was charged in the
Municipal Court with a violation of Sec. 28.01. Upon his trial it ws
proved that he distributed handbills to pedestrians on a public sidewalk
and had more than three hundred in his possession for that purpose.
Judgment of conviction was entered and sentence imposed. The Superior
Court of Los Angeles County affirmed the judgment. 2 That court being
the highest court in the State authorized to pass upon such a case, an
appeal to this court was allowed.
The handbill which the
appellant was distributing bore a notice of a meeting to be held under
the auspices of 'Friends Lincoln Brigade' at which speakers would
discuss the war in Spain.
The court below sustained the validity
of the ordinance on the ground that experience shows littering of the
[308 U.S. 147, 155] streets results from the indiscriminate distribution
of handbills. 3 It held that the right of free expression is not
absolute but subject to reasonable regulation and that the ordinance
does not transgress the bounds of reasonableness. Lovell v. City of
Griffin, 303 U.S. 444 , 58 S.Ct. 666, was distinguished on the ground
that the ordinance there in question prohibited distribution anywhere
within the city while the one involved forbids distribution in a very
limited number of places.
An ordinance of the
City of Milwaukee, Wisconsin, provides: 'It is hereby made unlawful for
any person ... to ... throw ... paper ... or to circulate or distribute
any circular, hand-bills, cards, posters, dodgers, or other printed or
advertising matter ... in or upon any sidewalk, street, alley, wharf,
boat landing, dock or ther public place, park or ground within the City
The petitioner, who was acting as a picket, stood
in the street in front of a meat market and distributed to passing
pedestrians hand-bills which pertained to a labor dispute with the meat
market, set forth the position of organized labor with respect to the
market, and asked citizens to refrain from patronizing it. Some of the
bills were thrown in the street by the persons to whom they were given
and it resulted that many of the papers lay in the gutter and in the
street. The police officers who arrested the petitioner and charged him
with a violation [308 U.S. 147, 156] of the ordinance did not arrest any
of those who received the bills and threw them away. The testimony was
that the action of the officers accorded with a policy of the police
department in enforcement of the ordinance to the effect that, when such
distribution resulted in littering of the streets, the one who was the
cause of the littering, that is, he who passed out the bills, was
arrested rather than those who received them and afterwards threw them
away. The Milwaukee County court found the petitioner guilty and fined
him. On appeal the judgment was affirmed by the Supreme Court. 4
court held that the purpose of the ordinance was to prevent an
unsightly, untidy, and offensive condition of the sidewalks. It
distinguished Lovell v. City of Griffin, supra, on the ground that the
ordinance there considered manifestly was not aimed at prevention of
littering of the streets. The court approved the administrative
construction of the ordinance by the police officials and felt that this
construction sustained its validity. The court said: 'Unless and until
delivery of the handbills was shown to result in a littering of the
streets their distribution was not interfered with.'
ordinance of the City of Worcester, Massachusetts, provides: 'No person
shall distribute in, or place upon any street or way, any placard,
handbill, flyer, poster, advertisement or paper of any description.'
appellants distributed in a street leaflets announcing a protest
meeting in connection with the administration of State unemployment
insurance. They did not throw any of the leaflets on the sidewalk or
scatter them. [308 U.S. 147, 157] Some of those to whom the leaflets
were handed threw them on the sidewalk and the street, with the result
that some thirty were lying about.
The appellants were arrested
and charged with a violation of the ordinance. The Superior Court of
Worcester County rendered a judgment of conviction and imposed sentence.
The Supreme Judicial Court overruled exceptions. 5 That court held the
ordinance a valid regulation of the use of the streets and sought thus
to distinguish it from the one involved in Lovell v. City of Griffin,
supra, which the court said was not such a regulation. Referring to the
ordinance the court said: 'It interferes in no way with the publication
of anything in the city of Worcester, except only that it excludes the
public streets and ways from the places available for free distribution.
It leaves open for such distribution all other places in the city,
public and private.'
An ordinance of the Town of
Irvington, New Jersey, provides: 'No person except as in this ordinance
provided shall canvass, solicit, distribute circulars, or other matter,
or call from house to house in the Town of Irvington without first
having reported to and received a written permit from the Chief of
Police or the officer in charge of Police Headquarters.' It further
enacts that a permit to canvass shall specify the number of hours or
days it will be in effect; that the canvasser must make an application
giving his name, address, age, height, weight, place of birth, whether
or not previously arrested or convicted of crime, by whom employed,
address of employer, clothing worn, and description of project for which
he is can- [308 U.S. 147, 158] vassing; that each applicant shall be
fingerprinted and photographed; that the Chief of Police shall refuse a
permit in all cases where the application, or further investigation made
at the officer's discretion, shows that the canvasser is not of good
character or is canvassing for a project not free from fraud; that
canvassing may only be done between 9 A. M. and 5 P.M.; that the
canvasser must furnish a photograph of himself which is to be attached
to the permit; that the permittee must exhibit the permit to any police
officer or other person upon request, must be courteous to all persons
in canvassing, must not importune or annoy the town's inhabitants or
conduct himself in an unlawful manner and must, at the expiration of the
permit, surrender it at police headquarters. Persons delivering goods,
merchandise, or other articles in the regular course of business to the
premises of persons ordering, or entitled to receive the same, are
exempted from the operation of the ordinance. Violation is punishable by
fine or imprisonment.
The petitioner was arrested and charged
with canvassing without a permit. The proofs show that she is a member
of the Watch Tower Bible and Tract Society and, as such, certified by
the society to be one of 'Jehovah's Witnesses'. In this capacity she
called from house to house in the town at all hours of the day and night
and showed to the occupants a so called testimony and identification
card signed by the society. The card stated that she would leave some
booklets discussing problems affecting the person interviewed; and that,
by contributing a small sum, that person would make possible the
printing of more booklets which could be placed in the hands of others.
The card certified that the petitioner was an ordained minister sent
forth by the society, which is organized to preach the gospel of God's
kingdom, and cited passages from the Bible with respect to the
obligation so to preach. The petitioner left, or [308 U.S. 147, 159]
offered to leave, the books or booklets with the occupants of the houses
visited. She did not apply for, or obtain, a permit pursuant to the
ordinance because she conscientiously believed that so to do would be an
act of disobedience to the command of Almighty God.
petitioner was convicted in the Recorder's Court. The Court of Common
Pleas affirmed the judgment. On a further appeal the Supreme Court
affirmed. 6 The Court of Errors and Appeals affirmed the judgment of the
Supreme Court. 7
The Supreme Court held that the
petitioner's conduct amounted to the solicitation and acceptance of
money contributions without a permit, and held the ordinance prohibiting
such action a valid regulation, aimed at protecting occupants and
others from disturbance and annoyance and preventing unknown strangers
from visiting houses by day and night. It overruled the petitioner's
contention that the measure denies or unreasonably restricts freedom of
speech or freedom of the press. The Court of Errors and Appeals thought
Lovell v. City of Griffin, supra, not controlling, since the ordinance
in that case prohibited all distribution of printed matter and was not
limited to ways which might be regarded as consistent with the
maintenance of public order or as involving disorderly conduct,
molestation of inhabitants, or misuse or littering of the streets,
whereas the ordinance here involved is aimed at canvassing or
soliciting, subjects not embraced in that condemned in the Lovell case.
The Court said: 'A municipality may protect its citizens against
fraudulent solicitation, and when it enacts an ordinance to do so, all
persons are required to abide thereby. The ordinance in question was
evidently designed for that purpose ....' [308 U.S. 147, 160] The
freedom of speech and of the press secured by the First Amendment,
U.S.C.A.Const., against abridgment by the United States is similarly
secured to all persons by the Fourteenth against abridgment by a state. 8
Although a municipality may enact regulations in the
interest of the public safety, health, welfare or convenience, these may
not abridge the individual liberties secured by the Constitution to
those who wish to speak, write, print or circulate information or
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 [308 U.S. 147, 161] 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.
This court has characterized the freedom
of speech and that of the press as fundamental personal rights and
liberties. 9 The phrase is not an empty one and was not lightly used. It
reflects the belief of the framers of the Constitution that exercise of
the rights lies at the foundation of free government by free men. It
stresses, as do many opinions of this court, the importance of
preventing the restriction of enjoyment of these liberties.
every case, therefore, where legislative abridgment of the rights is
asserted, the courts should be astute to examine the effect of the
challenged legislation. Mere legislative preferences or beliefs
respecting matters of public convenience may well support regulation
directed at other personal activities, but be insufficient to justify
such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions. And so, as cases arise, the delicate and
difficult task falls upon the courts to weigh the circumstances and to
appraise the substantiality of the reasons advanced in support of the
regulation of the free enjoyment of the rights.
In Lovell v.
City of Griffin, supra, this court held void an ordinance which forbade
the distribution by hand or otherwise of literature of any kind without
written permission from the city manager. The opinion pointed out that
the ordinance was not limited to obscene and immoral literature or that
which advocated unlawful conduct, placed no limit on the privilege of
distribution in the interest of public order, was not aimed to prevent
molestation of inhabitants or misuse or littering of [308 U.S. 147, 162]
streets, and was without limitation as to time or place of
distribution. The court said that, whatever the motive, the ordinance
was bad because it imposed penalties for the distribution of pamphlets,
which had become historical weapons in the defense of liberty, by
subjecting such distribution to license and censorship; and that the
ordinance was void on its face, because it abridged the freedom of the
press. Similarly in Hague v. C.I.O., 307 U.S. 496 , 59 S.Ct. 954, an
ordinance was held void on its face because it provided for previous
administrative censorship of the exercise of the right of speech and
assembly in appropriate public places.
The Los Angeles, the
Milwaukee, and the Worcester ordinances under review do not purport to
license distribution but all of them absolutely prohibit it in the
streets and, one of them, in other public places as well.
motive of the legislation under attack in Numbers 13, 18 and 29 is held
by the courts below to be the prevention of littering of the streets
and, although the alleged offenders were not charged with themselves
scattering paper in the streets, their convictions were sustained upon
the theory that distribution by them encouraged or resulted in such
littering. We are of opinion that the purpose to keep the streets clean
and of good appearance is insufficient to justify an ordinance which
prohibits a person rightfully on a public street from handing literature
to one willing to receive it. Any burden imposed upon the city
authorities in cleaning and caring for the streets as an indirect
consequence of such distribution results from the constitutional
protection of the freedom of speech and press. This constitutional
protection does not deprive a city of all power to prevent street
littering. There are obvious methods of preventing littering. Amongst
these is the punishment of those who actually throw papers on the
streets. [308 U.S. 147, 163] It is argued that the circumstance that in
the actual enforcement of the Milwaukee ordinance the distributor is
arrested only if those who receive the literature throw it in the
streets, renders it valid. But, even as thus construed, the ordinance
cannot be enforced without unconstitutionally abridging the liberty of
free speech. As we have pointed out, the public convenience in respect
of cleanliness of the streets does not justify an exertion of the police
power which invades the free communication of information and opinion
secured by the Constitution.
It is suggested that the Los
Angeles and Worcester ordinances are valid because their operation is
limited to streets and alleys and leaves persons free to distribute
printed matter in other public places. But, as we have said, the streets
are natural and proper places for the dissemination of information and
opinion; and one is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it may be
exercised in some other place.
While it affects others, the
Irvington ordinance drawn in question in No. 11, as construed below,
affects all those, who, like the petitioner, desire to impart
information and opinion to citizens at their homes. If it covers the
petitioner's activities it equally applies to one who wishes to present
his views on political, social or economic questions. The ordinance is
not limited to those who canvass for private profit; nor is it merely
the common type of ordinance requiring some form of registration or
license of hawkers, or peddlers. It is not a general ordinance to
prohibit trespassing. It bans unlicensed communication of any views or
the advocacy of any cause from door to door, and permits canvassing only
subject to the power of a police officer to determine, as a censor,
what literature may be distributed from house to house and who may
distribute it. The applicant must submit to that [308 U.S. 147, 164]
officer's judgment evidence as to his good character and as to the
absence of fraud in the 'project' he proposes to promote or the
literature he intends to distribute, and must undergo a burdensome and
inquisitorial examination, including photographing and fingerprinting.
In the end, his liberty to communicate with the residents of the town at
their homes depends upon the exercise of the officer's discretion.
said in Lovell v. City of Griffin, supra, pamphlets have proved most
effective instruments in the dissemination of opinion. And perhaps the
most effective way of bringing them to the notice of individuals is
their distribution at the homes of the people. On this method of
communication the ordinance imposes censorship, abuse of which
engendered the struggle in England which eventuated in the establishment
of the doctrine of the freedom of the press embodied in our
Constitution. To require a censorship through license which makes
impossible the free and unhampered distribution of pamphlets strikes at
the very heart of the constitutional guarantees.
fraudulent appeals may be made in the name of charity and religion, we
hold a municipality cannot, for this reason, require all who wish to
disseminate ideas to present them first to police authorities for their
consideration and approval, with a discretion in the police to say some
ideas may, while others may not, be carried to the homes of citizens;
some persons may, while others may not, disseminate information from
house to house. Frauds may be denounced as offenses and punished by law.
Trespasses may similarly be forbidden. If it is said that these means
are less efficient and convenient than bestowal of power on police
authorities to decide what information may be disseminated from house to
house, and who may impart the information, the answer is that
considerations of this sort do not empower a municipality to abridge
freedom of speech and press. [308 U.S. 147, 165] We are not to be taken
as holding that commercial soliciting and canvassing may not be
subjected to such regulation as the ordinance requires. Nor do we hold
that the town may not fix reasonable hours when canvassing may be done
by persons having such objects as the petitioner. Doubtless there are
other features of such activities which may be regulated in the public
interest without prior licensing or other invasion of constitutional
liberty. We do hold, however, that the ordinance in question, as applied
to the petitioner's conduct, is void, and she cannot be punished for
acting without a permit.
The judgment in each case is reversed
and the causes are remanded for further proceedings not inconsistent
with this opinion. So ordered.
Reversed and remanded.
Mr. Justice McREYNOLDS is of opinion that the judgment in each case should be affirmed.