APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE.
Vinson, Black, Reed, Frankfurter, Douglas, Jackson, Burton, Clark, Minton
MR. JUSTICE REED delivered the opinion of the Court.
This appeal presents the validity of a conviction of appellant for conducting religious services in a public park of Portsmouth, New Hampshire, without a required license, when proper application for the license had been arbitrarily and unreasonably refused by the City Council. The conclusion depends upon consideration of the principles
of the First Amendment secured against state abridgment by the Fourteenth.*fn1
Appellant is one of Jehovah's Witnesses. Permission for appellant and another Witness, now deceased, was sought to conduct services in Goodwin Park on June 25 and July 2. They offered to pay all proper fees and charges, and complied with the procedural requirements for obtaining permission to use the park. When the license was refused on May 4, appellant nevertheless held the planned services and continued them until arrested. He was charged with violation of § 22 of the city ordinance set out below.*fn2 On conviction in the Municipal Court he was fined $20 and took an appeal which entitled him to a plenary trial before the Superior Court. Before that trial appellant moved to dismiss the complaints on the
ground that "the ordinance as applied was unconstitutional and void." This motion on the constitutional question, pursuant to New Hampshire practice, was transferred to the Supreme Court. It ruled, as it had on a former prosecution under a different clause of an identical section, so far as pertinent, of a New Hampshire statute, against one Cox, State v. Cox, 91 N. H. 137, 143, 16 A. 2d 508, 513, that:
"The discretion thus vested in the authority [city council] 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, 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. Derrickson, 97 N. H. 91, 93, 81 A. 2d 312, 313.
In Cox v. New Hampshire, 312 U.S. 569, we affirmed on appeal from the New Hampshire conviction of Cox, acknowledging the usefulness, p. 576, of the steate court's carefully phrases interpretive limitation on the licensing authority. The Supreme Court of New Hampshire went on to hold the challenged clause in this present prosecution valid also in these words:
"The issue which this case presents is whether the city of Portsmouth can prohibit religious and church
meetings in Goodwin Park on Sundays under a licensing system which treats all religious groups in the same manner. Whether a city could prohibit religious meetings in all of its parks is a doubtful question which we need not decide in this case. What we do decide is that a city may take one of its small parks and devote it to public and non-religious purposes under a system which is administered fairly and without bias or discrimination." 97 N. H., at 95, 81 A. 2d, at 315.
Thereupon it discharged the case.
The result of this action was to open the case now here in the Superior Court for trial. At the conclusion of the evidence, appellant raised federal issues by a motion to dismiss the complaint set out below.*fn3 The Superior Court passed upon the issues raised. It held that Cox v. New Hampshire, 312 U.S. 569, determined the validity of the section of the ordinance under attack; that the
refusal of the licenses by the City Council was arbitrary and unreasonable, but refused to dismiss the prosecution on that ground because:
"The respondents could have raised the question of their right to licenses to speak in Goodwin Park by proper civil proceedings in this Court, but they chose to deliberately violate the ordinance."
On appeal, the Supreme Court of New Hampshire affirmed.*fn4 It held the ordinance valid on its face under Cox v. New Hampshire, 312 U.S. 569. While the Cox case involved the clause of the ordinance, § 22, relating to "parade or procession upon any public street or way," the New Hampshire Supreme Court thought the present prosecution was "under a valid ordinance which requires a license before open air public meetings may be held." This was the first ruling on the public speech clause. Cf. State v. Cox, 91 N. H., at 143, 16 A. 2d, at 513; Cox v. New Hampshire, 312 U.S., at 573. As the ordinance was valid on its face the state court determined the remedy was by certiorari to review the unlawful refusal of the Council to grant the license, not by holding public religious services in the park without a license, and then defending because the refusal of the license was arbitrary.
Appellant's challenge on federal grounds to the action and conclusion of the New Hampshire courts is difficult to epitomize. By paragraph 3 of his motion to dismiss, note 3, supra, appellant relied on the principles of the First Amendment for protection against the city ordinance. In his statement of jurisdiction, the question presented, No. I, the illegal denial of his application for a license, was urged as a denial of First Amendment principles.*fn5 In his
brief, he phrases the issue differently as indicated below.*fn6 We conclude that appellant's contentions are, first, no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment; second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion. The abridgment would be because of delay through judicial proceedings to obtain the right of speech and to carry out religious exercises. The due process question raised
by appellant as a part of the latter constitutional contention disappears by our holding, as indicated later in this opinion, that the challenged clause of the ordinance and New Hampshire's requirement for following a judicial remedy for the arbitrary refusal are valid. This analysis showing an attack on the ordinance as applied as repugnant to the principles of the First Amendment and a determination of its validity by the New Hampshire Supreme Court requires us to take jurisdiction by appeal.*fn7 The state ground for affirmance, i. e., the failure to take certiorari from the action refusing a license, depends upon the constitutionality of the ordinance.
First. We consider the constitutionality of the requirement that a license from the city must be obtained before conducting religious exercises in Goodwin Park. Our conclusion takes into consideration the interpretive limitation repeated from State v. Cox, quoted at p. 398 of this opinion. This state interpretation is as though written into the ordinance itself. Winters v. New York, 333 U.S. 507, 514. It requires uniform, nondiscriminatory and consistent administration of the granting of licenses for public meetings on public streets or ways or such a park as Goodwin Park, abutting thereon.*fn8 The two opinions of the Supreme Court of New Hampshire do not state in precise words that reasonable opportunities for public religious or other meetings on public property must be granted under this ordinance to such religious organizations as Jehovah's Witnesses. In the former appeal of this controversy in the Derrickson case, supra, New Hampshire decided that the city could exclude, without discrimination, all religious meetings from Goodwin Park,
if it so desired, leaving that one park, among several, there being no showing of its unique advantages for religious meetings, as a retreat for quietness, contemplation or other non-religious activities. The Supreme Court refused to determine whether religious meetings could be excluded from all parks at all times. That has not been decided in this appeal. Informed witnesses at this trial without contradiction testified that no public religious services were ever licensed in any Portsmouth park. There was no allocation of parks between religious and non-religious meetings. The Superior Court held the refusal of this license arbitrary and unreasonable. Obviously the license required is not the kind of prepublication license deemed a denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.*fn9 While there was no assertion of the invalidity of the ordinance on its face, the Supreme Court determined the validity of the ordinance as applied. See Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 287; Charleston Assn. v. Alderson, 324 U.S. 182, 185-186.*fn10 We can only conclude from these decisions that the Supreme Court of New Hampshire has held that the ordinance is valid and, as now
written, made it obligatory upon Portsmouth to grant a license for these religious services in Goodwin Park. The appellant's contention that the Council's application of the ordinance so as to bar all religious meetings in Goodwin Park without a license, made the ordinance unconstitutional, was not sustained by the Supreme Court of New Hampshire. Appellant's brief, p. 3, continues the claim in this Court as follows:
"This exception presented to the Supreme Court of New Hampshire the question. It is whether the ordinance as enforced by the City Council, under its policy to refuse religious meetings in the park, was a violation of the federal Constitution."
By its construction of the ordinance the state left to the licensing officials no discretion as to granting permits, no power to discriminate, no control over speech. There is therefore no place for narrowly drawn regulatory requirements
or authority. The ordinance merely calls for the adjustment of the unrestrained exercise of religions with the reasonable comfort and convenience of the whole city. Had the refusal of the license not been in violation of the ordinance, the Supreme Court would not, we are sure, have required the appellant in its next application to go through the futile gesture of certiorari only to be told the Portsmouth Council's refusal of a license was a valid exercise of municipal discretion under the ordinance and the Fourteenth Amendment. Such state conclusions are not invalid, although they leave opportunity for arbitrary refusals that delay the exercise of rights.
The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction. It is a non sequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquillity without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion.*fn11 When considering specifically the regulation of
the use of public parks, this Court has taken the same position. See the quotation from the Hague case (below) and Kunz v. New York, 340 U.S. 290, 293-294; Saia v. New York, 334 U.S. 558, 562. In these cases, ...