Defendant, a clergyman, was convicted and fined $10, after a trial before a New York City Magistrate, for violating section 435-7.0 of that City's Administrative Code. The material parts of that statute (which is set out in full at the beginning of Judge CONWAY's opinion in this case) may be summarized as follows:
1. It shall be unlawful in any New York City street, for anyone to collect a crowd for public worship or exhortation, or to ridicule or denounce any religious belief, or to preach atheism or agnosticism;
2. However, any clergyman or authorized representative of any religious group, or of any atheistic or agnostic society, may *Page 276 preach or expound his cause, in any public place specified in a permit which may be granted him by the police commissioner;
3. Any violation is punishable by a fine of not more than $25, or thirty days' imprisonment, or both.
Appellant insists that this law is unconstitutional on its face, for a number of reasons, principally because, as defendant thinks, it allows the police commissioner, uncontrolled by any proper standards, "to determine as a censor who may address the public on the streets", and because it prohibits any ridicule or denunciation of religion by anyone. We do not think that the statute, as administratively construed by the New York City Police Department and as applied here, is invalid for either of those asserted reasons.
Although this section says in its first paragraph that a street-preaching permit "may be granted and issued" by the police commissioner, to any of the persons listed, this record shows that such a permit is granted to any such person, on mere application therefor. Each such permit is for a calendar year and specifies no time or place for speaking, but, on the face of the permit there is printed a police department regulation requiring the permittee to notify the commander of the police precinct concerned, of the proposed time and place of any street meeting, whereupon "The Commanding Officer will approve of the location providing it does not interfere with Traffic or other local conditions." Reading those regulations into the ordinance, as we can and should (see People v. Nahman, 298 N.Y. 95, andPeople v. Hass, 299 N.Y. 190, appeal dismissed 338 U.S. 803, rehearing denied 338 U.S. 881), we construe the ordinance as requiring the commissioner to give an annual permit for street preaching, to anyone who, like defendant, is a minister of religion, and as allowing police control of meetings only to the extent of requiring advance notice to a police captain who must approve of the location, unless traffic conditions there make it inexpedient to use that site for such purposes. Thus read, the law is no more than a necessary and reasonable regulation of the use, for public meetings, of the crowded streets of the world's greatest city, "general and non-discriminatory legislation [regulating] the times, the places, and the manner of" holding street meetings (Cantwell v. Connecticut, 310 U.S. 296, 304; see Cox v. New Hampshire, 312 U.S. 569). The possible *Page 277 unconstitutionality of this permit procedure, as curtailing the rights of those who are not clergymen, like defendant, is not for defendant to argue or for us to consider in this case (O'Kane v. State of New York, 283 N.Y. 439, 449). Thus, that part of the statute which deals with permits is clearly not unconstitutional. The other part, forbidding the denunciation or ridicule of religion, will be dealt with herein after we have summarized the additional facts of this case.
In 1946, defendant applied to the commissioner for, and received, a permit for street preaching. The meetings he held during that year brought to the commissioner's desk a flood of complaints from citizens who charged that defendant had, in violent words, denounced two great religions, each of which has very large membership in New York City. The commissioner thereupon, on notice to defendant, scheduled a hearing on such charges, before a deputy commissioner. A two-day hearing followed, at which defendant and eighteen complainants appeared and gave testimony. The complaints were amply proven, and the commissioner wrote defendant that his permit was revoked, because he had "contrary to the provisions of law under which the permit was issued, ridiculed and denounced religion". Later defendant, successively, applied for permits for 1947 and 1948, but in each instance he was notified of disapproval. On September 11, 1948, without a permit, he held a religious meeting at Columbus Circle, in Manhattan, and again delivered himself of violent diatribes against the same religions he had castigated before. He was arrested and charged with street preaching without a permit. On the trial he admitted that, while there was no trouble at his exhortations when a police officer was present, trouble there was when the police were absent.
While the ordinance does not specifically mention revocation of licenses, for cause, we think such power is fairly implied, and, in any case, the alleged illegality of a revocation is reviewable by appropriate civil proceedings in the nature of certiorari (Civ. Prac. Act, art. 78). Since the licensing law was valid, one who preached without a license was guilty of a violation, and any impropriety of the revocation of a former license was no defense. We think, too, that once the 1946 *Page 278 permit was revoked for good reasons, the commissioner was not bound to issue further permits. The commissioner had no reason to assume, and no promise was made, that defendant wanted a new permit for any uses different from the disorderly ones he had been guilty of before. The police regulations, printed on the permit and mentioned above, say that "all meetings must be conducted in an orderly manner" — surely a modest requirement — and defendant had shown that his utterances were of the kind that usually do, and in defendant's case, did, result in disorder, except when the police provided protection. As the Magistrate pointed out at the close of this trial: "in a large city like this City of New York, bearing in mind that religion is a very tender emotion amongst most human beings, that this statute is not only constitutional but desirable, extremely desirable, that for the protection of the people who are going to do the speaking themselves it is necessary in a big city like ours where people become so emotional and might very well inflict serious bodily harm." Actually, what defendant here insists on as his constitutional right is not only a permit irrevocable for any cause, but the regular attendance at his meetings of a cordon of policemen to curb the wrath of those whose deepest feelings he wantonly wounds. He claims a constitutional right to incite riots, and a constitutional right to the services of policemen to quell those riots. It seems to us that if a community can bar from its streets all raucously noisy advertising devices (Kovacs v. Cooper, 336 U.S. 77) it may stop defendant from starting religious wars on New York's teeming thoroughfares.
It may be that the first sentence of this ordinance, making it unlawful for anyone "to ridicule or denounce any form of religious belief, service or reverence", if read off by itself, and without relation to the rest of the ordinance, or of these facts, might be thought unconstitutional. But we have no such question here. This man got his permit with no questions asked as to what he would preach. But he used that permit to spew out insults and epithets; public order and decency required that he be stopped (Chaplinsky v. New Hampshire, 315 U.S. 568, 572), and after due hearing and full proof, he was stopped. As the Supreme Court said in the Chaplinsky case (supra) no constitutional problem is raised by the prevention and punishment of *Page 279 "insulting or `fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" (315 U.S. at p. 572). It is the duty of the police to end such disorder.
In arriving at these conclusions we have not relied on People v. Smith (263 N.Y. 255, appeal dismissed 292 U.S. 606) which held valid and constitutional this very statute, but have considered the question anew, on the facts of this particular case.
The judgment should be affirmed.