U.S. Supreme Court Chaplinsky v. New Hampshire, 315
U.S. 568 (1942) Chaplinsky v. New
Hampshire No. 255 Argued February 5,
1942 Decided March 9, 1942 315
U.S. 568 APPEAL FROM THE SUPREME COURT OF
NEW HAMPSHIRE Syllabus 1. That part of c. 378, § 2, of the Public Law of New Hampshire
which forbids under penalty that any person shall address "any
offensive, derisive or annoying word to any other person who is
lawfully in any street or other public place," or "call him by any
offensive or derisive name," was construed by the Supreme Court of
the State, in this case and before this case arose, as limited to
the use in a public place of words directly tending to cause a
breach of the peace by provoking the person addressed to acts of
violence. Held: (1) That, so construed, it is sufficiently definite and specific
to comply with requirements of due process of law. P. 315 U. S.
573 .

															(2) That, as applied to a person who, on a public street,
addressed another as a "damned Fascist" and a "damned racketeer,"
it does not substantially or unreasonably impinge upon freedom of
speech. P. 315 U.S.
574 .

															(3) The refusal of the state court to admit evidence offered by
the defendant tending to prove provocation and evidence bearing on
the truth or falsity of the utterances charged is open to no
constitutional objection. P. 315
U.S. 574 .

															2. The Court notices judicially that the appellations "damned
racketeer" and "damned Fascist" are epithets likely to provoke the
average person to retaliation, and thereby cause a breach of the
peace. P. 315 U.S. 574 91 N.H. 310, 18 A.2d 754, affirmed.

															APPEAL from a judgment affirming a conviction under a state law
denouncing the use of offensive words when addressed by one person
to another in a public place. Page 315 U. S. 569 MR. JUSTICE MURPHY delivered the opinion of the Court.

															Appellant, a member of the sect known as Jehovah's Witnesses,
was convicted in the municipal court of Rochester, New Hampshire,
for violation of Chapter 378, § 2, of the Public Laws of New
Hampshire:

															"No person shall address any offensive, derisive or annoying
word to any other person who is lawfully in any street or other
public place, nor call him by any offensive or derisive name, nor
make any noise or exclamation in his presence and hearing with
intent to deride, offend or annoy him, or to prevent him from
pursuing his lawful business or occupation."

															The complaint charged that appellant,

															"with force and arms, in a certain public place in said city of
Rochester, to-wit, on the public sidewalk on the easterly side of
Wakefield Street, near unto the entrance of the City Hall, did
unlawfully repeat the words following, addressed to the
complainant, that is to say, 'You are a God damned racketeer' and
'a damned Fascist and the whole government of Rochester are
Fascists or agents of Fascists,' the same being offensive, derisive
and annoying words and names."

															Upon appeal, there was a trial de novo of appellant
before a jury in the Superior Court. He was found guilty, and the
judgment of conviction was affirmed by the Supreme Court of the
State. 91 N.H. 310, 18 A.2d 754.

															By motions and exceptions, appellant raised the questions that
the statute was invalid under the Fourteenth Amendment of the
Constitution of the United States in that it placed an unreasonable
restraint on freedom of speech, freedom of the press, and freedom
of worship, and because it was vague and indefinite. These
contentions were overruled, and the case comes here on appeal.

															There is no substantial dispute over the facts. Chaplinsky was
distributing the literature of his sect on the streets Page 315 U. S. 570 of Rochester on a busy Saturday afternoon. Members of the local
citizenry complained to the City Marshal, Bowering, that Chaplinsky
was denouncing all religion as a "racket." Bowering told them that
Chaplinsky was lawfully engaged, and then warned Chaplinsky that
the crowd was getting restless. Some time later, a disturbance
occurred and the traffic officer on duty at the busy intersection
started with Chaplinsky for the police station, but did not inform
him that he was under arrest or that he was going to be arrested.
On the way, they encountered Marshal Bowering, who had been advised
that a riot was under way and was therefore hurrying to the scene.
Bowering repeated his earlier warning to Chaplinsky, who then
addressed to Bowering the words set forth in the complaint.

															Chaplinsky's version of the affair was slightly different. He
testified that, when he met Bowering, he asked him to arrest the
ones responsible for the disturbance. In reply, Bowering cursed him
and told him to come along. Appellant admitted that he said the
words charged in the complaint, with the exception of the name of
the Deity.

															Over appellant's objection, the trial court excluded, as
immaterial, testimony relating to appellant's mission "to preach
the true facts of the Bible," his treatment at the hands of the
crowd, and the alleged neglect of duty on the part of the police.
This action was approved by the court below, which held that
neither provocation nor the truth of the utterance would constitute
a defense to the charge.

															It is now clear that

															"Freedom of speech and freedom of the press, which are protected
by the First Amendment from infringement by Congress, are among the
fundamental personal rights and liberties which are protected by
the Fourteenth Amendment from invasion by state Page 315 U. S. 571 action." Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 450 .
[ Footnote 1 ] Freedom of worship
is similarly sheltered. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S.
303 .

															Appellant assails the statute as a violation of all three
freedoms, speech, press and worship, but only an attack on the
basis of free speech is warranted. The spoken, not the written,
word is involved. And we cannot conceive that cursing a public
officer is the exercise of religion in any sense of the term. But
even if the activities of the appellant which preceded the incident
could be viewed as religious in character, and therefore entitled
to the protection of the Fourteenth Amendment, they would not cloak
him with immunity from the legal consequences for concomitant acts
committed in violation of a valid criminal statute. We turn,
therefore, to an examination of the statute itself.

															Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances.
[ Footnote 2 ] There are certain
well defined and narrowly limited classes of speech, the
prevention Page 315 U. S. 572 and punishment of which have never been thought to raise any
Constitutional problem. [ Footnote
3 ] These include the lewd and obscene, the profane, the
libelous, and the insulting or "fighting" words -- those which, by
their very utterance, inflict injury or tend to incite an immediate
breach of the peace. [ Footnote
4 ] It has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in
order and morality. [ Footnote
5 ]

															"Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument." Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S.
309 -310.

															The state statute here challenged comes to us authoritatively
construed by the highest court of New Hampshire. It has two
provisions -- the first relates to words or names addressed to
another in a public place; the second refers to noises and
exclamations. The court said:

															"The two provisions are distinct. One may stand separately from
the other. Assuming, without holding, that the second were
unconstitutional, the first could stand if constitutional."

															We accept that construction of severability and limit our
consideration to the first provision of the statute. [ Footnote 6 ] Page 315 U. S. 573 On the authority of its earlier decisions, the state court
declared that the statute's purpose was to preserve the public
peace, no words being "forbidden except such as have a direct
tendency to cause acts of violence by the persons to whom,
individually, the remark is addressed." [ Footnote 7 ] It was further said:

															"The word 'offensive' is not to be defined in terms of what a
particular addressee thinks. . . . The test is what men of common
intelligence would understand would be words likely to cause an
average addressee to fight. . . . The English language has a number
of words and expressions which, by general consent, are 'fighting
words' when said without a disarming smile. . . . [S]uch words, as
ordinary men know, are likely to cause a fight. So are threatening,
profane or obscene revilings. Derisive and annoying words can be
taken as coming within the purview of the statute as heretofore
interpreted only when they have this characteristic of plainly
tending to excite the addressee to a breach of the peace. . . . The
statute, as construed, does no more than prohibit the face-to-face
words plainly likely to cause a breach of the peace by the
addressee, words whose speaking constitutes a breach of the peace
by the speaker -- including 'classical fighting words,' words in
current use less 'classical' but equally likely to cause violence,
and other disorderly words, including profanity, obscenity and
threats."

															We are unable to say that the limited scope of the statute as
thus construed contravenes the Constitutional right of free
expression. It is a statute narrowly drawn and limited to define
and punish specific conduct lying within the domain of state power,
the use in a public place of words likely to cause a breach of the
peace. Cf. Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S. 311 ; Thornhill v.
Alabama , Page 315 U. S. 574 310 U. S. 88 , 310 U. S. 105 .
This conclusion necessarily disposes of appellant's contention that
the statute is so vague and indefinite as to render a conviction
thereunder a violation of due process. A statute punishing verbal
acts, carefully drawn so as not unduly to impair liberty of
expression, is not too vague for a criminal law. Cf. Fox v.
Washington 236 U.S.
273 , 236 U. S. 277 .
[ Footnote 8 ]

															Nor can we say that the application of the statute to the facts
disclosed by the record substantially or unreasonably impinges upon
the privilege of free speech. Argument is unnecessary to
demonstrate that the appellations "damned racketeer" and "damned
Fascist" are epithets likely to provoke the average person to
retaliation, and thereby cause a breach of the peace.

															The refusal of the state court to admit evidence of provocation
and evidence bearing on the truth or falsity of the utterances is
open to no Constitutional objection. Whether the facts sought to be
proved by such evidence constitute a defense to the charge, or may
be shown in mitigation, are questions for the state court to
determine. Our function is fulfilled by a determination that the
challenged statute, on its face and as applied, doe not contravene
the Fourteenth Amendment. Affirmed. [ Footnote 1 ] See also Bridges v. California, 314 U.
S. 252 ; Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S. 303 ; Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 95 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 160 ; De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 364 ; Grosjean v. American Press Co., 297 U.
S. 233 , 297 U. S. 243 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S. 707 ; Stromberg v. California, 283 U. S. 359 , 283 U. S. 368 ; Whitney v. California, 274 U. S. 357 , 274 U. S. 362 , 274 U. S. 371 , 274 U. S. 373 ; Gitlow v. New York, 268 U. S. 652 , 268 U. S.
666 .

															Appellant here pitches his argument on the due process clause of
the Fourteenth Amendment.

															[ Footnote 2 ] Schenck v. United States, 249 U. S.
47 ; Whitney v. California, 274 U.
S. 357 , 274 U. S. 373 (Brandeis, J., concurring); Stromberg v. California, 283 U. S. 359 ; Near v. Minnesota, 283 U. S. 697 ; De Jonge v. Oregon, 299 U. S. 353 ; Herndon v. Lowry, 301 U. S. 242 ; Cantwell v. Connecticut, 310 U. S. 296 .

															[ Footnote 3 ]

															The protection of the First Amendment, mirrored in the
Fourteenth, is not limited to the Blackstonian idea that freedom of
the press means only freedom from restraint prior to publication. Near v. Minnesota, 283 U. S. 697 , 283 U. S.
714 -715.

															[ Footnote 4 ]

															Chafee, Free Speech in the United States (1941), 149.

															[ Footnote 5 ]

															Chafee, op. cit., 150.

															[ Footnote 6 ]

															Since the complaint charged appellant only with violating the
first provision of the statute, the problem of Stromberg v.
California, 283 U. S. 359 , is
not present.

															[ Footnote 7 ] State v. Brown, 68 N.H. 200, 38 A. 731; State v.
McConnell, 70 N.H. 294, 47 A. 267.

															[ Footnote 8 ]

															We do not have here the problem of Lanzetta v. New
Jersey, 306 U. S. 451 .
Even if the interpretative gloss placed on the statute by the court
below be disregarded, the statute had been previously construed as
intended to preserve the public peace by punishing conduct the
direct tendency of which was to provoke the person against whom it
was directed to acts of violence. State v. Brown, 68 N.H.
200, 38 A. 731 (1894).

Summary:
Here is a summary of the Supreme Court case Chaplinsky v. New Hampshire (1942):

The case concerned a New Hampshire law that prohibited individuals from using offensive or derisive language towards others in public places. The appellant, a member of Jehovah's Witnesses, was convicted for violating this law after calling someone a "damned Fascist" and a "damned racketeer" on a public street.

The Supreme Court upheld the conviction, ruling that the law, as interpreted by the state court, was sufficiently clear and did not violate the appellant's freedom of speech rights. The Court agreed with the state court's interpretation that the law only prohibited words that directly incited violence or a breach of the peace.

The Court also held that the specific words used by the appellant were likely to provoke a violent response and cause a breach of the peace. Evidence of provocation or the truth of the appellant's statements was deemed irrelevant to the charge and posed no constitutional issue.

In conclusion, Chaplinsky v. New Hampshire set a precedent for regulating speech that is likely to incite violence, establishing the "fighting words" doctrine, which exempts such speech from First Amendment protection.


U.S. Supreme Court Feiner v. New York, 340
U.S. 315 (1951) Feiner v. New York No. 93 Argued October 17,
1950 Decided January 15,
1951 340
U.S. 315 CERTIORARI TO THE COURT OF APPEALS
OF NEW YORK Syllabus Petitioner made an inflammatory speech to a mixed crowd of 75 or
80 Negroes and white people on a city street. He made derogatory
remarks about President Truman, the American Legion, and local
political officials, endeavored to arouse the Negroes against the
whites, and urged that Negroes rise up in arms and fight for equal
rights. The crowd, which blocked the sidewalk and overflowed into
the street, became restless; its feelings for and against the
speaker were rising, and there was at least one threat of violence.
After observing the situation for some time without interference,
police officers, in order to prevent a fight, thrice requested
petitioner to get off the box and stop speaking. After his third
refusal, and after he had been speaking over 30 minutes, they
arrested him, and he was convicted of violating § 722 of the Penal
Code of New York, which, in effect, forbids incitement of a breach
of the peace. The conviction was affirmed by two New York courts on
review. Held: The conviction is sustained against a claim that
it violated petitioner's right of free speech under the First and
Fourteenth Amendments. Pp. 340 U. S. 316 -321.

															(a) Petitioner was neither arrested nor convicted for the making
or the content of his speech, but for the reaction which it
actually engendered. Pp. 340 U. S.
319 -320.

															(b) The police cannot be used as an instrument for the
suppression of unpopular views; but, when a speaker passes the
bounds of argument or persuasion and undertakes incitement to riot,
the police are not powerless to prevent a breach of the peace. P. 340 U. S.
321 .

															300 N.Y. 391, 91 N.E.2d 316, affirmed.

															The case is stated in the first paragraph of the opinion. The
decision below is affirmed, p. 340 U. S.
321 . Page 340 U. S. 316 MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

															Petitioner was convicted of the offense of disorderly conduct, a
misdemeanor under the New York penal laws, in the Court of Special
Sessions of the City of Syracuse and was sentenced to thirty days
in the county penitentiary. The conviction was affirmed by the
Onondaga County Court and the New York Court of Appeals, 300 N.Y.
391, 91 N.E.2d 316 (1950). The case is here on certiorari, 339 U.S.
962 (1950), petitioner having claimed that the conviction is in
violation of his right of free speech under the Fourteenth
Amendment.

															In the review of state decisions where First Amendment rights
are drawn in question, we, of course, make an examination of the
evidence to ascertain independently whether the right has been
violated. Here, the trial judge, who heard the case without a jury,
rendered an oral decision at the end of the trial, setting forth
his determination of the facts upon which he found the petitioner
guilty. His decision indicated generally that he believed the
state's witnesses, and his summation of the testimony was used by
the two New York courts on review in stating the facts. Our
appraisal of the facts is therefore based upon the uncontroverted
facts and, where controversy exists, upon that testimony which the
trial judge did reasonably conclude to be true.

															On the evening of March 8, 1949, petitioner Irving Feiner was
addressing an open-air meeting at the corner of South McBride and
Harrison Streets in the City of Syracuse. At approximately 6:30
p.m., the police received a telephone complaint concerning the
meeting, and two officers were detailed to investigate. One of
these officers went to the scene immediately, the other arriving
some twelve minutes later. They found a crowd of about seventy-five
or eighty people, both Negro and white, filling the sidewalk and
spreading out into the street. Petitioner, Page 340 U. S. 317 standing on a large wooden box on the sidewalk, was addressing
the crowd through a loud-speaker system attached to an automobile.
Although the purpose of his speech was to urge his listeners to
attend a meeting to be held that night in the Syracuse Hotel, in
its course, he was making derogatory remarks concerning President
Truman, the American Legion, the Mayor of Syracuse, and other local
political officials.

															The police officers made no effort to interfere with
petitioner's speech, but were first concerned with the effect of
the crowd on both pedestrian and vehicular traffic. They observed
the situation from the opposite side of the street, noting that
some pedestrians were forced to walk in the street to avoid the
crowd. Since traffic was passing at the time, the officers
attempted to get the people listening to petitioner back on the
sidewalk. The crowd was restless, and there was some pushing,
shoving, and milling around. One of the officers telephoned the
police station from a nearby store, and then both policemen crossed
the street and mingled with the crowd without any intention of
arresting the speaker.

															At this time, petitioner was speaking in a "loud, high-pitched
voice." He gave the impression that he was endeavoring to arouse
the Negro people against the whites, urging that they rise up in
arms and fight for equal rights. The statements before such a mixed
audience "stirred up a little excitement." Some of the onlookers
made remarks to the police about their inability to handle the
crowd, and at least one threatened violence if the police did not
act. There were others who appeared to be favoring petitioner's
arguments. Because of the feeling that existed in the crowd both
for and against the speaker, the officers finally "stepped in to
prevent it from resulting in a fight." One of the officers
approached the petitioner, not for the purpose of arresting him,
but to get him to break up the crowd. He asked petitioner to get
down Page 340 U. S. 318 off the box, but the latter refused to accede to his request and
continued talking. The officer waited for a minute and then
demanded that he cease talking. Although the officer had thus twice
requested petitioner to stop over the course of several minutes,
petitioner not only ignored him, but continued talking. During all
this time, the crowd was pressing closer around petitioner and the
officer. Finally, the officer told petitioner he was under arrest
and ordered him to get down from the box, reaching up to grab him.
Petitioner stepped down, announcing over the microphone that "the
law has arrived, and I suppose they will take over now." In all,
the officer had asked petitioner to get down off the box three
times over a space of four or five minutes. Petitioner had been
speaking for over a half hour.

															On these facts, petitioner was specifically charged with
violation of § 722 of the Penal Law of New York, Mc.K.Consol.Laws,
c. 40, the pertinent part of which is set out in the margin.
[ Footnote 1 ] The bill of
particulars, demanded by petitioner and furnished by the State,
gave in detail the facts upon which the prosecution relied to
support the charge of disorderly conduct. Paragraph C is
particularly pertinent here:

															"By ignoring and refusing to heed and obey reasonable police
orders issued at the time and place mentioned in the Information to
regulate and control said crowd and to prevent a breach or breaches
of the peace and to prevent injury to pedestrians Page 340 U. S. 319 attempting to use said walk, and being forced into the highway
adjacent to the place in question, and prevent injury to the public
generally."

															We are not faced here with blind condonation by a state court of
arbitrary police action. Petitioner was accorded a full, fair
trial. The trial judge heard testimony supporting and contradicting
the judgment of the police officers that a clear danger of disorder
was threatened. After weighing this contradictory evidence, the
trial judge reached the conclusion that the police officers were
justified in taking action to prevent a breach of the peace. The
exercise of the police officers' proper discretionary power to
prevent a breach of the peace was thus approved by the trial court,
and later by two courts on review. [ Footnote 2 ] The courts below recognized petitioner's right
to hold a street meeting at this locality, to make use of
loudspeaking equipment in giving his speech, and to make derogatory
remarks concerning public officials and the American Legion. They
found that the officers in making the arrest were motivated solely
by a proper concern for the preservation of order and protection of
the general welfare, and that there was no evidence which could
lend color to a claim that the acts of the police were a cover for
suppression of petitioner's views and opinions. Petitioner was thus
neither arrested nor convicted for the Page 340 U. S. 320 making or the content of his speech. Rather, it was the reaction
which it actually engendered.

															The language of Cantwell v. Connecticut, 310 U.
S. 296 (1940), is appropriate here.

															"The offense known as breach of the peace embraces a great
variety of conduct destroying or menacing public order and
tranquility. It includes not only violent acts, but acts and words
likely to produce violence in others. No one would have the
hardihood to suggest that the principle of freedom of speech
sanctions incitement to riot, or that religious liberty connotes
the privilege to exhort others to physical attack upon those
belonging to another sect. When clear and present danger of riot,
disorder, interference with traffic upon the public streets, or
other immediate threat to public safety, peace, or order, appears,
the power of the State to prevent or punish is obvious."

															310 U.S. at 310 U. S. 308 .
The findings of the New York courts as to the condition of the
crowd and the refusal of petitioner to obey the police requests,
supported as they are by the record of this case, are persuasive
that the conviction of petitioner for violation of public peace,
order, and authority does not exceed the bounds of proper state
police action. This Court respects, as it must, the interest of the
community in maintaining peace and order on its streets. Schneider v. State, 308 U. S. 147 , 308 U. S. 160 (1939); Kovacs v. Cooper, 336 U. S.
77 , 336 U. S. 82 (1949). We cannot say that the preservation of that interest here
encroaches on the constitutional rights of this petitioner.

															We are well aware that the ordinary murmurings and objections of
a hostile audience cannot be allowed to silence a speaker, and are
also mindful of the possible danger of giving overzealous police
officials complete discretion to break up otherwise lawful public
meetings.

															"A State may not unduly suppress free communication of views,
religious or other, under the guise of conserving desirable
conditions." Cantwell v. Connecticut, supra, at Page 340 U. S. 321 310 U. S. 308 .
But we are not faced here with such a situation. It is one thing to
say that the police cannot be used as an instrument for the
suppression of unpopular views, and another to say that when, as
here, the speaker passes the bounds of argument or persuasion and
undertakes incitement to riot, they are powerless to prevent a
breach of the peace. Nor, in this case, can we condemn the
considered judgment of three New York courts approving the means
which the police, faced with a crisis, used in the exercise of
their power and duty to preserve peace and order. The findings of
the state courts as to the existing situation and the imminence of
greater disorder, coupled with petitioner's deliberate defiance of
the police officers, convince us that we should not reverse this
conviction in the name of free speech. Affirmed. [For opinion of MR. JUSTICE FRANKFURTER, concurring in the
result, see ante, p. 340 U. S.
273 .]

															[ Footnote 1 ]

															"Section 722. Any person who, with intent to provoke a breach of
the peace, or whereby a breach of the peace may be occasioned,
commits any of the following acts shall be deemed to have committed
the offense of disorderly conduct: "

															"1. Uses offensive, disorderly, threatening, abusive or
insulting language, conduct or behavior;"

															"2. Acts in such a manner as to annoy, disturb, interfere with,
obstruct, or be offensive to others;"

															"3. Congregates with others on a public street and refuses to
move on when ordered by the police. . . ."

															[ Footnote 2 ]

															The New York Court of Appeals said:

															"An imminent danger of a breach of the peace, of a disturbance
of public order, perhaps even of riot, was threatened . . . ; the
defendant, as indicated above, disrupted pedestrian and vehicular
traffic on the sidewalk and street, and, with intent to provoke a
breach of the peace and with knowledge of the consequences, so
inflamed and agitated a mixed audience of sympathizers and
opponents that, in the judgment of the police officers present, a
clear danger of disorder and violence was threatened. Defendant
then deliberately refused to accede to the reasonable request of
the officer, made within the lawful scope of his authority, that
the defendant desist in the interest of public welfare and
safety."

															300 N.Y. 391, 400, 402, 91 N.E.2d 316, 319, 321.

															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 [ Footnote
2/1 ] on matters of public interest while lawfully making a
street corner Page 340 U. S. 322 speech in Syracuse, New York. [ Footnote 2/2 ] 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. [ Footnote 2/3 ]
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. [ Footnote
2/4 ] Even a partial Page 340 U. S. 323 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, Page 340 U. S. 324 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 said that colored people "don't have equal rights, and they
should rise up in arms and fight for them." [ Footnote 2/5 ] 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. Page 340 U. S. 325 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." [ Footnote 2/6 ]

															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 far-fetched to suggest that the "facts" show any imminent
threat of riot or uncontrollable disorder. [ Footnote 2/7 ] It Page 340 U. S. 326 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 out-door 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. [ Footnote 2/8 ] Here, the policemen did not even
pretend to try to protect petitioner. According to the officers'
testimony, the crowd was restless, but there is Page 340 U. S. 327 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. [ Footnote 2/9 ] 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 Page 340 U. S. 328 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.
[ Footnote 2/10 ] Criticism of
public officials will be too dangerous for all but the most
courageous. [ Footnote 2/11 ] This
is true regardless of the fact that, in Page 340 U. S. 329 two other cases decided this day, Kunz v. New York, 340 U. S. 290 ; Niemotko v. Maryland, 340 U. S. 268 , 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. Connecticut, 310 U.
S. 296 , 310 U. S. 310 .
I regret my inability to persuade the Court not to retreat from
this principle.

															[ Footnote 2/1 ]

															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 loudspeaker 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.

															[ Footnote 2/2 ]

															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.

															It is implied in a concurring opinion that the use of sound
amplifiers in some way caused the meeting to become less lawful.
This fact, however, had nothing to do with the conviction of
petitioner. In sentencing him, the trial court said: "You had a
perfect right to appear there and to use that implement, the
loudspeaker. You had a right to have it in the street." See
also 340
U.S. 315 fn2/1|>note 1, supra. [ Footnote 2/3 ]

															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 340
U.S. 315 fn2/11|>note 11, infra. [ Footnote 2/4 ]

															In Norris v. Alabama, 294 U. S. 587 , 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 at pages 294 U. S.
589 -590:

															"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 , 257 U. S. 324 ; Hooven & Allison Co. v. Evatt, 324 U.
S. 652 , 324 U. S. 659 ; Chambers v. Florida, 309 U. S. 227 , 309 U. S. 228 ; Pierre v. Louisiana, 306 U. S. 354 , 306 U. S. 358 ; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 335 ; Patton v. Mississippi, 332 U. S. 463 , 332 U. S. 466 ; Craig v. Harney, 331 U. S. 367 , 331 U. S. 373 ; Oyama v. California, 332 U. S. 633 , 332 U. S. 636 ; Pollock v. Williams, 322 U. S. 4 , 322 U. S. 13 ; Fay v. New York, 332 U. S. 261 , 332 U. S. 272 ; Akins v. Texas, 325 U. S. 398 , 325 U. S. 401 ; Kansas City Southern R. Co. v. C. H. Albers Comm'n Co., 223 U. S. 573 , 223 U. S. 591 ; First National Bank v. Hartford, 273 U.
S. 548 , 273 U. S. 552 ; Fiske v. Kansas, 274 U. S. 380 , 274 U. S. 385 ; Great Northern R. Co. v. Washington, 300 U.
S. 154 , 300 U. S.
165 -167. 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. Washington, supra, with Taylor v. Mississippi, 319 U. S. 583 , 319 U. S.
585 -586.

															[ Footnote 2/5 ]

															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.

															[ Footnote 2/6 ]

															"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.

															[ Footnote 2/7 ]

															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
loudspeakers 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?"

															[ Footnote 2/8 ] Cf. Hague v. CIO, 307 U. S. 496 ; Terminiello v. Chicago, 337 U. S. 1 ; Sellers v. Johnson, 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. CIO,
supra, reprinted at 307 U.S. 678-682.

															[ Footnote 2/9 ]

															In Schneider v. State, 308 U.
S. 147 , 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 at page 308 U. S.
162 ,

															"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. Madison, 340 U.
S. 349 , 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.

															[ Footnote 2/10 ]

															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 forever to all popular discussion, either on
political or religious matters." 1 Buckle, History of Civilization
in England (2d London ed.) 350.

															[ Footnote 2/11 ]

															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."

															MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MINTON concurs,
dissenting.

															Feiner, a university student, made a speech on a street corner
in Syracuse, New York, on March 8, 1949. The purpose of the speech
was to publicize a meeting of the Page 340 U. S. 330 Young Progressives of America to be held that evening. A permit
authorizing the meeting to be held in a public school auditorium
had been revoked, and the meeting shifted to a local hotel.

															Feiner delivered his speech in a small shopping area in a
predominantly colored residential section of Syracuse. He stood on
a large box and spoke over loudspeakers mounted on a car. His
audience was composed of about 75 people, colored and white. A few
minutes after he started, two police officers arrived.

															The speech was mainly devoted to publicizing the evening's
meeting and protecting the revocation of the permit. It also
touched on various public issues. The following are the only
excerpts revealed by the record:

															"Mayor Costello [of Syracuse] is a champagne-sipping bum; he
does not speak for the negro people."

															"The 15th Ward is run by corrupt politicians, and there are
horse rooms operating there."

															"President Truman is a bum."

															"Mayor O'Dwyer is a bum."

															"The American Legion is a Nazi Gestapo."

															"The negroes don't have equal rights; they should rise up in
arms and fight for their rights."

															There was some pushing and shoving in the crowd and some angry
muttering. That is the testimony of the police. But there were no
fights and no "disorder," even by the standards of the police.
There was not even any heckling of the speaker.

															But after Feiner has been speaking about 20 minutes, a man said
to the police officers, "If you don't get that son of a bitch off,
I will go over and get him off there myself." It was then that the
police ordered Feiner to stop speaking; when he refused, they
arrested him.

															Public assemblies and public speech occupy an important role in
American life. One high function of Page 340 U. S. 331 the police is to protect these lawful gatherings so that the
speakers may exercise their constitutional rights. When unpopular
causes are sponsored from the public platform, there will commonly
be mutterings and unrest and heckling from the crowd. When a
speaker mounts a platform it is not unusual to find him resorting
to exaggeration, to vilification of ideas and men, to the making of
false charges. But those extravagances, as we emphasized in Cantwell v. Connecticut, 310 U. S. 296 , do
not justify penalizing the speaker by depriving him of the platform
or by punishing him for his conduct.

															A speaker may not, of course, incite a riot, any more than he
may incite a breach of the peace by the use of "fighting words." See Chaplinsky v. New Hampshire, 315 U.
S. 568 . But this record shows no such extremes. It shows
an unsympathetic audience and the threat of one man to haul the
speaker from the stage. It is against that kind of threat that
speakers need police protection. If they do not receive it, and
instead the police throw their weight on the side of those who
would break up the meetings, the police become the new censors of
speech. Police censorship has all the vices of the censorship from
city halls which we have repeatedly struck down. See Lovell v.
City of Griffin, 303 U. S. 444 ; Hague v. CIO, 307 U. S. 496 ; Cantwell v. Connecticut, supra; Murdock v. Pennsylvania, 319 U. S. 105 ; Saia v. New York, 334 U. S. 558 .

Summary: The Supreme Court upheld the conviction of a petitioner who was arrested and charged with inciting a breach of the peace during a speech that criticized political figures and encouraged African Americans to rise up in arms to fight for equal rights. The Court found that the petitioner's right to free speech under the First and Fourteenth Amendments was not violated because he was arrested and convicted based on the reaction his speech engendered, which included unrest and a threat of violence. The police are responsible for maintaining peace and order during public assemblies and have the authority to intervene when a speaker incites a riot or breach of the peace.