# Feiner v. New York/Dissent Black

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United States Supreme Court
340 U.S. 315
Feiner v. New York
Argued: Oct. 17, 1950. --- Decided: Jan 15, 1951
Mr. Justice BLACK, dissenting.
The record before us convinces me that petitioner, a young college student, has been sentenced to the penitentiary for the unpopular views he expressed on matters of public interest while lawfully making a street-corner speech in Syracuse, New York. Today's decision, however, indicates that we must blind ourselves to this fact because the trial judge fully accepted the testimony of the prosecution witnesses on all important points. Many times in the past this Court has said that despite findings below, we will examine the evidence for ourselves to ascertain whether federally protected rights have been denied; otherwise review here would fail of its purpose in safeguarding constitutional guarantees. Even a partial abandonment of this rule marks a dark day for civil liberties in our Nation.
But still more has been lost today. Even accepting every 'finding of fact' below, I think this conviction makes a mockery of the free speech guarantees of the First and Fourteenth Amendments. The end result of the affirmance here is to approve a simple and readily available technique by which cities and states can with impunity subject all speeches, political or otherwise, on streets or elsewhere, to the supervision and censorship of the local police. I will have no part or parcel in this holding which I view as a long step toward totalitarian authority.
Considering only the evidence which the state courts appear to have accepted, the pertinent 'facts' are: Syracuse city authorities granted a permit for O. John Rogge, a former Assistant Attorney General, to speak in a public school building on March 8, 1948 on the subject of racial discrimination and civil liberties. On March 8th, however, the authorities cancelled the permit. The Young Progressives under whose auspices the meeting was scheduled then arranged for Mr. Rogge to speak at the Hotel Syracuse. The gathering on the street where petitioner spoke was held to protest the cancellation and to publicize the meeting at the hotel. In this connection, petitioner used derogatory but not profane language with reference to the city authorities, President Truman and the American Legion. After hearing some of these remarks, a policeman, who had been sent to the meeting by his superiors, reported to Police Headquarters by telephone. To whom he reported or what was said does not appear in the record, but after returning from the call, he and another policeman started through the crowd toward petitioner. Both officers swore they did not intend to make an arrest when they started, and the trial court accepted their statements. They also said, and the court believed, that they heard and saw 'angry mutterings,' 'pushing,' 'shoving and milling around' and 'restlessness.' Petitioner spoke in a 'loud, high pitched voice.' He siad that colored people 'don't have equal rights and they should rise up in arms and fight for them.' One man who heard this told the officers that if they did not take that 'S...O...B...' off the box, he would. The officers then approached petitioner for the first time. One of them first 'asked' petitioner to get off the box, but petitioner continued urging his audience to attend Rogge's speech. The officer next 'told' petitioner to get down, but he did not. The officer finally 'demanded' that petitioner get down, telling him he was under arrest. Petitioner then told the crowd that 'the law had arrived and would take over' and asked why he was arrested. The officer first replied that the charge was 'unlawful assembly' but later changed the ground to 'disorderly conduct.'
The Court's opinion apparently rests on this reasoning: The policeman, under the circumstances detailed, could reasonably conclude that serious fighting or even riot was imminent; therefore he could stop petitioner's speech to prevent a breach of peace; accordingly, it was 'disorderly conduct' for petitioner to continue speaking in disobedience of the officer's request. As to the existence of a dangerous situation on the street corner, it seems farfetched to suggest that the 'facts' show any imminent threat of riot or uncontrollable disorder. It is neither unusual nor unexpected that some people at public street meetings mutter, mill about, push, shove, or disagree, even violently, with the speaker. Indeed, it is rare where controversial topics are discussed that an outdoor crowd does not do some or all of these things. Nor does one isolated threat to assault the speaker forebode disorder. Especially should the danger be discounted where, as here, the person threatening was a man whose wife and two small children accompanied him and who, so far as the record shows, was never close enough to petitioner to carry out the threat.
Moreover, assuming that the 'facts' did indicate a critical situation, I reject the implication of the Court's opinion that the police had no obligation to protect petitioner's constitutional right to talk. The police of course have power to prevent breaches of the peace. But if, in the name of preserving order, they ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him. Here the policemen did not even pretend to try to protect petitioner. According to the officers' testimony, the crowd was restless but there is no showing of any attempt to quiet it; pedestrians were forced to walk into the street, but there was no effort to clear a path on the sidewalk; one person threatened to assault petitioner but the officers did nothing to discourage this when even a word might have sufficed. Their duty was to protect petitioner's right to talk, even to the extent of arresting the man who threatened to interfere. Instead, they shirked that duty and acted only to suppress the right to speak.
Finally, I cannot agree with the Court's statement that petitioner's disregard of the policeman's unexplained request amounted to such 'deliberate defiance' as would justify an arrest or conviction for disorderly conduct. On the contrary, I think that the policeman's action was a 'deliberate defiance' of ordinary official duty as well as of the constitutional right of free speech. For at least where time allows, courtesy and explanation of commands are basic elements of good official conduct in a democratic society. Here petitioner was 'asked' then 'told' then 'commanded' to stop speaking, but a man making a lawful address is certainly not required to be silent merely because an officer directs it. Petitioner was entitled to know why he should cease doing a lawful act. Not once was he told. I understand that people in authoritarian countries must obey arbitrary orders. I had hoped that there was no such duty in the United States.
In my judgment, today's holding means that as a practical matter, minority speakers can be silenced in any city. Hereafter, despite the First and Fourteenth Amendments, the policeman's club can take heavy toll of a current administration's public critics. Criticism of public officials will be too dangerous for all but the most courageous. This is true regardless of the fact that in two other cases decided this day, Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, a majority, in obedience to past decisions of this Court, provides a theoretical safeguard for freedom of speech. For whatever is thought to be guaranteed in Kunz and Niemotko is taken away by what is done here. The three cases read together mean that while previous restraints probably cannot be imposed on an unpopular speaker, the police have discretion to silence him as soon as the customary hostility to his views develops.
In this case I would reverse the conviction, thereby adhering to the great principles of the First and Fourteenth Amendments as announced for this Court in 1940 by Mr. Justice Roberts:
'In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.' Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213.
I regret my inability to pursuade the Court not to retreat from this principle.

## Notes

* ↑ The trial judge framed the question for decision as follows: 'The question here, is what was said and what was done? And it doesn't make any difference whether whatever was said, was said with a loud speaker or not. There are acts and conduct an individual can engage in when you don't even have to have a crowd gathered around which would justify a charge of disorderly conduct. The question is, what did this defendant say and do at that particular time and the Court must determine whether those facts, concerning what the defendant did or said, are sufficient to support the charge.' There is no suggestion in the record that petitioner 'did' anything other than (1) speak and (2) continue for a short time to invite people to a public meeting after a policeman had requested him to stop speaking.
* ↑ There was no charge that any city or state law prohibited such a meeting at the place or time it was held. Evidence showed that it was customary to hold public gatherings on that same corner every Friday night, and the trial judge who convicted petitioner admitted that he understood the meeting was a lawful one. Nor did the judge treat the lawful meeting as unlawful because a crowd congregated on the sidewalk. Consequently, any discussion of disrupted pedestrian and vehicular traffic, while suggestive coloration, is immaterial under the charge and conviction here.
* ↑ The trial court made no findings of fact as such. A decision was rendered from the bench in which, among other things, the trial judge expressed some views on the evidence. See note 11, infra.
* ↑ In Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, the evidence as to whether Negroes had been discriminated against in the selection of grand juries was conflicting. Chief Justice Hughes, writing for the Court, said 294 U.S. at pages 589-590, 55 S.Ct. at pages 580: 'The question is of the application of this established principle (equal protection) to the facts disclosed by the record. That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied. When a federal right has been specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in express terms but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights. Thus, whenever a conclusion of law of a state court as to a federal right and findings of fact are so intermingled that the latter control the former, it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured.' This same rule has been announced in the following cases as well as in numerous others: Truax v. Corrigan, 257 U.S. 312, 324, 42 S.Ct. 124, 126, 66 L.Ed. 254; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659, 65 S.Ct. 870, 874, 89 L.Ed. 1252; Chambers v. State of Florida, 309 U.S. 227, 228, 60 S.Ct. 472, 473, 84 L.Ed. 716; Pierre v. State of Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538, 83 L.Ed. 757; Pennekamp v. State of Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295; Patton v. State of Mississippi, 332 U.S. 463, 466, 68 S.Ct. 184, 186, 92 L.Ed. 76; Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 91 L.Ed. 1546; Oyama v. State of California, 332 U.S. 633, 636, 68 S.Ct. 269, 270, 92 L.Ed. 249; Pollock v. Williams, 322 U.S. 4, 13, 64 S.Ct. 792, 797, 88 L.Ed. 1095; Fay v. People of State of New York, 332 U.S. 261, 272, 67 S.Ct. 1613, 1619, 91 L.Ed. 2043; Akins v. State of Texas, 325 U.S. 398, 401, 65 S.Ct. 1276, 1278, 89 L.Ed. 1692; Kansas City Southern R. Co. v. C. H. Albers Comm'n Co., 223 U.S. 573, 591, 32 S.Ct. 316, 320, 56 L.Ed. 556; First National Bank of Hartford, Wisconsin v. City of Hartford, 273 U.S. 548, 552, 47 S.Ct. 462, 463, 71 L.Ed. 767; Fiske v. Kansas, 274 U.S. 380, 385, 47 S.Ct. 655, 656, 71 L.Ed. 1108; Great Northern R. Co. v. State of Washington, 300 U.S. 154, 165-167, 57 S.Ct. 397, 402, 403, 81 L.Ed. 573. This Court has used varying phraseology in stating the circumstances under which it would review state court findings of fact, but it has not hesitated to make such review when necessary to protect a federal right. Compare Great Northern R. Co. v. State of Washington, supra, with Taylor v. State of Mississippi, 319 U.S. 583, 585-586, 63 S.Ct. 1200, 1201, 1202, 87 L.Ed. 1600.
* ↑ I am accepting this although I believe the record demonstrates rather conclusively that petitioner did not use the phrase 'in arms' in the manner testified to by the officers. Reliable witnesses swore that petitioner's statement was that his listeners 'could rise up and fight for their rights by going arm in arm to the Hotel Syracuse, black and white alike, to hear John Rogge.' The testimony of neither of the two officers contained the phrase 'in arms' when they first testified on this subject; they added it only after counsel for the prosecution was permitted by the court, over petitioner's objection, to propound leading and suggestive questions. In any event, the statement ascribed to petitioner by the officers seems clearly rhetorical when read in context.
* ↑ 'A charge of using language likely to cause a breach of the peace is a convenient catchall to hold unpopular soapbox orators.' Chafee, Free Speech in the United States, 524. The related charge of conducting a 'disorderly house' has also been used to suppress and punish minority views. For example, an English statute of 1799 classified as disorderly houses certain unlicensed places ('House, Room, Field, or other Place') in which 'any Lecture or Discourse shall be publickly delivered, or any publick Debate shall be had on any Subject * * *' or which was used 'for the Purpose of reading Books, Pamphlets, Newspapers, or other Publications * * *.' 39 Geo. III, c. 79, § 15.
* ↑ The belief of the New York Court of Appeals that the situation on the street corner was critical is not supported by the record and accordingly should not be given much weight here. Two illustrations will suffice: The Court of Appeals relied upon a specific statement of one policeman that he interfered with Feiner at a time when the crowd was 'getting to the point where they would be unruly.' But this testimony was so patently inadmissible that it was excluded by the trial judge in one of the rare instances where the defendant received a favorable ruling. Secondly, the Court of Appeals stated that after Feiner had been warned by the police, he continued to 'blare out his provocative utterances over loud speakers to a milling, restless throng * * *.' I am unable to find anything in the record to support this statement unless the unsworn arguments of the assistant district attorney are accepted as evidence. The principal prosecution witness testified that after he asked Feiner to get down from the box, Feiner merely 'kept telling (the audience) to go to the Syracuse Hotel and hear John Rogge.' And this same witness even answered 'No' to the highly suggestive question which immediately followed, 'Did he say anything more about arming and fighting at that time?'
* ↑ Cf. Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Sellers v. Johnson, 8 Cir., 163 F.2d 877; see also, summary of Brief for Committee on the Bill of Rights of the American Bar Association as amicus curiae, Hague v. C.I.O., supra, reprinted at 307 U.S. 678-682.
* ↑ In Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, we held that a purpose to prevent littering of the streets was insufficient to justify an ordinance which prohibited a person lawfully on the street from handing literature to one willing to receive it. We said 308 U.S. at page 162, 60 S.Ct. at page 151, 84 L.Ed. 155 'There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.' In the present case as well, the threat of one person to assault a speaker does not justify suppression of the speech. There are obvious available alternative methods of preserving public order. One of these is to arrest the person who threatens an assault. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, in which the Court invalidates a municipal health ordinance under the Commerce Clause because of a belief that the city could have accomplished its purposes by reasonably adequate alternatives. The Court certainly should not be less alert to protect freedom of speech than it is to protect freedom of trade.
* ↑ Today the Court characterizes petitioner's speech as one designed to incite riot and approves suppression of his views. There is an alarming similarity between the power thus possessed by the Syracuse (or any other) police and that possessed by English officials under an act passed by Parliament in 1795. In that year Justices of the Peace were authorized to arrest persons who spoke in a manner which could be characterized as 'inciting and stirring up the People to Hatred or Contempt * * *' of the King or the Government. 36 Geo. III, c. 8, § 7. This statute 'was manifestly intended to put an end for ever to all popular discussion, either on political or religious matters.' 1 Buckle, History of Civilization in England (2d London ed.) 350.
* ↑ That petitioner and the philosophy he espoused were objects of local antagonism appears clearly from the printed record in this case. Even the trial judge in his decision made no attempt to conceal his contempt for petitioner's views. He seemed outraged by petitioner's criticism of public officials and the American Legion. Moreover, the judge gratuitously expressed disapproval of O. John Rogge by quoting derogatory statements concerning Mr. Rogge which had appeared in the Syracuse press. The court approved the view that freedom of speech should be denied those who pit 'class against class * * * and religion against religion.' And after announcing its decision, the court persistently refused to grant bail pending sentence.
Although it is unnecessary for me to reach the question of whether the trial below met procedural due process standards, I cannot agree with the opinion of the Court that 'Petitioner was accorded a full, fair trial.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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