Feiner v. New York/Dissent Black
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

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.'