Caseflicks

Supreme Court of the United States • 1951

Kunz v. New York

340 U.S. 290 | 71 S. Ct. 312 | 95 L. Ed. 2d 280 | 1951 U.S. LEXIS 2248 | 95 L. Ed. 280

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Takeaway

In short, this case holds that a city may regulate street use, but it cannot require a permit for religious speech while giving an official standardless discretion to deny it.

Background

New York City required a permit from the police commissioner before a person could hold public religious worship or exhortation meetings on city streets. Carl Jacob Kunz, an ordained Baptist minister and director of the “Outdoor Gospel Work,” had received a permit in 1946. The commissioner revoked it later that year after hearing complaints that Kunz had ridiculed and denounced Catholic and Jewish beliefs.

Kunz did not seek review of the 1946 revocation. He applied for new permits in 1947 and 1948, but the commissioner disapproved both applications without stating reasons. In September 1948, Kunz preached at Columbus Circle without a permit, was arrested, and was fined $10. The New York Court of Appeals affirmed his conviction, reasoning that the earlier revocation had occurred for good reasons and could justify denial of a later permit. Kunz appealed on Fourteenth Amendment grounds.

Issues

Issue #1

Whether New York City could condition street religious meetings on a permit when the ordinance gave the police commissioner no standards governing whether later permit applications could be denied.

Holding

No. The ordinance was an unconstitutional prior restraint because it vested an administrative official with uncontrolled discretion to deny permits for religious speech on public streets.

Reasoning

The case concerned the denial of Kunz’s 1948 permit, not the propriety of the 1946 revocation. Although the New York Court of Appeals read the ordinance to require issuance of an initial permit to eligible religious speakers, it permitted the commissioner to deny later applications based on the commissioner’s own assessment of prior conduct. The ordinance itself supplied no standards identifying grounds for denial and did not even expressly authorize revocation.

Streets and parks have traditionally been held in trust for public assembly, communication, and discussion. A city may regulate their use to prevent serious interference with ordinary street activity, but it may not confer broad licensing discretion on an official to decide in advance who may speak on religious subjects in those public forums.

The Court’s prior decisions distinguished permissible regulation of time, place, and manner from licensing schemes that make speech depend on an official’s unguided judgment. Like the licensing systems invalidated in Cantwell, Lovell, Hague, Largent, and Saia, this ordinance authorized a prior restraint without objective standards to guide or limit the licensing official. The Fourteenth Amendment therefore barred New York from enforcing Kunz’s conviction.

Issue #2

Whether reports that Kunz’s earlier meetings had caused disorder could justify denying him a permit under this standardless licensing system.

Holding

No. Potential disorder could be addressed through appropriate subsequent remedies, but it could not justify giving an official unbounded advance power to suppress religious speech.

Reasoning

The lower court relied on evidence that Kunz’s past meetings had caused some disorder. The Supreme Court rejected that justification because the constitutional defect was the advance suppression of speech through an official’s discretionary denial of permission, rather than punishment for unlawful conduct after it occurred.

New York retained tools to protect public peace and order if Kunz’s speech actually produced disorder or violence. The Court expressly declined to decide the permissible scope of later punishment or other remedies. It held only that the State could not place restraining control over religious speech in an administrative official’s hands without appropriate standards.

Concurrences

Justice Frankfurter

Reasoning

Justice Frankfurter concurred in the judgment of reversal for the reasons stated in his separate opinion in Niemotko v. Maryland, decided the same day. His approach emphasized the constitutional danger of allowing public-forum access to turn on unstructured official decisionmaking, rather than treating the City’s permit denial as a valid means of controlling religious speech.

His concurrence did not join the Court’s broader reasoning in full. It reflected his view that the Constitution requires public authorities to administer access to public places under principles that prevent arbitrary or discriminatory suppression of expression.

Dissents

Justice Jackson

Reasoning

Justice Jackson believed that the Court assumed, rather than decided, the critical question: whether Kunz’s particular street speeches were constitutionally protected. Kunz had denounced Catholics and Jews in language that Jackson regarded as calculated to inflame religious hostility and provoke violence. In Jackson’s view, such utterances were fighting words or presented a clear and present danger to public peace, and therefore fell outside First Amendment protection in the setting of a public street meeting.

Jackson distinguished public street speaking from speech on private property. A street preacher can impose a message on passersby who have not chosen to listen, while an audience in a church or hall attends voluntarily. New York had not prohibited Kunz from preaching generally; it had regulated his use of public streets to direct inflammatory attacks at a captive public audience.

He also rejected the majority’s facial attack on the permit system. As construed by the New York Court of Appeals, eligible applicants received an initial permit, and a later denial was permissible only after a prior revocation for cause and an indication that the applicant intended to repeat the conduct. Jackson considered that process more protective of liberty than allowing unrestricted street meetings until a police officer on the scene ordered the speaker to stop.

For Jackson, a permit system could serve rather than defeat free speech by giving speakers advance notice, providing hearings and judicial review, and enabling police to protect authorized meetings from hostile crowds. He would have allowed municipalities to deny permits when speech was reasonably likely to produce disorder, so long as officials did not use the system to discriminate or censor protected expression.