Niemotko v. Maryland/Opinion of the Court
Appellants are two members of the religious group known as Jehovah's Vitnesses. At the invitation of local coreligionists, they scheduled Bible talks in the public park of the city of Havre de Grace, Maryland. Although there is no ordinance prohibiting or regulating the use of this park, it has been the custom for organizations and individuals desiring to use it for meetings and celebrations of various kinds to obtain permits from the Park Commissioner. In conformity with this practice, the group requested permission of the Park Commissioner for use of the park on four consecutive sundays in June and July, 1949. This permission was refused.

Having been informed that an Elks' Flag Day ceremony was scheduled for the first Sunday, the applicants did not pursue their request for the use of the park for that particular day, but, instead, filed a written request with the City Council for the following three Sundays. This request was filed at the suggestion of the Mayor, appearing that under the custom of the municipality there is a right of appeal to the City Council from the action of the Park Commissioner. The Council held a hearing at which the request was considered. At this hearing the applicants and their attorney appeared. The request was denied.

Because they were awaiting the decision of the Council on their application, the applicants took no further steps on the second Sunday, but, after the denial of the request, they proceeded to hold their meeting on the third Sunday. No sooner had appellant Niemotko opened the meeting and commenced delivering his discourse, than the police, who had been ordered to the park by the Mayor, arrested him. At the meeting held in the park on the fourth and following Sunday, appellant Kelley was arrested before he began his lecture.

Appellants were subsequently brought to trial before a jury on a charge of disorderly conduct under the Maryland disorderly conduct statute. Flack's Md.Ann. Code, 1939 (1947 Cum.Supp.), art. 27, § 131. They were convicted and each fined $25 and costs. Under the rather unique Maryland procedure, the jury is the judge of the law as well as the facts. Md.Const., art. XV, § 5; see opinion below, Md., 71 A.2d 9, 11. This means that there is normally no appellate review of any question dependent on the sufficiency of the evidence. Relying on this Maryland rule, the Court of Appeals declined to review the case under its normal appellate power, and further declined to take the case on certiorari, stating that the issues were not 'matters of public interest' which made it desirable to review. Being of opinion that the case presented substantial constitutional issues, we noted probable jurisdiction, the appeal being properly here under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).

In cases in whih there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will re-examine the evidentiary basis on which those conclusions are founded. See Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303. A brief recital of the facts as they were adduced at this trial will suffice to show why these convictions cannot stand. At the time of the arrest of each of these appellants, there was no evidence of disorder, threats of violence or riot. There was no indication that the appellants conducted themselves in a manner which could be considered as detrimental to the public peace or order. On the contrary, there was positive testimony by the police that each of the appellants had conducted himself in a manner beyond reproach. It is quite apparent that any disorderly conduct which the jury found must have been based on the fact that appellants were using the park without a permit, although, as we have indicated above, there is no statute or ordinance prohibiting or regulating the use of the park without a permit.

This Court has many times examined the licensing systems by which local bodies regulate the use of their parks and public places. See Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312. See also Saia v. People of State of New York, 1948, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Hague v. C.I.O., 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. In those cases this Court condemned statutes and ordinances which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint on freedom of speech, press and religion, and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must be invalid. See Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312. In the instant case we are met with no ordinance or statute regulating or prohibiting the use of the park; all that is here is an amorphous 'practice,' whereby all authority to grant permits for the use of the park is in the Park Commissioner and the City Council. No standards appear anywhere; no narrowly drawn limitations; no circumscribing of this absolute power; no substantial interest of the community to be served. It is clear that all that has been said about the invalidity of such limitless discretion must be equally applicable here.

This case points up with utmost clarity the wisdom of this doctrine. For the very possibility of abuse, which those earlier decisions feared, has occurred here. Indeed, rarely has any case been before this Court which shows so clearly an unwarranted discrimination in a refusal to issue such a license. It is true that the City Council held a hearing at which it considered the application. But we have searched the record in vain to discover any valid basis for the refusal. In fact, the Mayor testified that the permit would probably have been granted if, at the hearing, the applicants had not started to 'berate' the Park Commissioner for his refusal to issue the permit. The only questions asked of the Witnesses at the hearing pertained to their alleged refusal to salute the flag, their views on the Bible, and other issues irrelevant to unemcumbered use of the public parks. The conclusion is inescapable that the use of the park was denied because of the City Council's dislike for or disagreement with the Witnesses or their views. The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body.

In this Court, it is argued that state and city officials should have the power to exclude religious groups, as such, from the use of the public parks. But that is not this case. For whatever force this contention could possibly have is lost in the light of the testimony of the Mayor at the trial that within his memory permits had always been issued for religious organizations and Sunday-school picnics. We might also point out that the attempt to designate the park as a sanctuary for peace and quiet not only does not defeat these appellants, whose own conduct created no disturbance, but this position is also more than slightly inconsistent, since, on the first Sunday here involved, the park was the suits for the Flag Day ceremony of the Order of Elks. Elks.

It thus becomes apparent that the lack of standards in the license-issuing 'practice' renders that 'practice' a prior restraint in contravention of the Fourteenth Amendment, and that the completely arbitrary and discriminatory refusal to grant the permits was a denial of equal protection. Inasmuch as the basis of the convictions was the lack of the permits, and that lack was, in turn, due to the unconstitutional defects discussed, the convictions must fall.

Reversed. 

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