Rockwell, a self-styled American Nazi and, reputedly, a rabid racist, applied to the Commissioner of Parks on May 17,1960, for a permit to use Union Square Park to make a public political speech the following July 4. The park is located in New York City in a traffic and pedestrian-congested area which is also a transfer point for a number of rapid transit lines. Respondent Commissioner denied the application June 22,1960, without offering Rockwell an alternative time or place. This proceeding under article 78 of the Civil Practice Act was instituted August 11, 1960 to review the Commissioner’s determination.
*274Special Term dismissed the petition. The nub of its reasoning was that Rockwell had by speech and pamphlet accused more than two and a half million residents of New York City of being traitors, identified by their ethnic and religious classification; that he was a “ self-confessed advocate of violence ” and Hitlerian methods; and that if he spoke it was ‘ ‘ inevitable that public disorder and riot will result ’ ’.
Rockwell has appealed urging that the Commissioner did not comply with the very regulation under which he purported to act, and that, if he had such power under the regulation, it is void for unconstitutionality. Respondent Commissioner contends that under the regulation he has the power, constitutionally, to refuse a permit to one whose activities would create serious disorder — a clear and present danger. Respondent also urges that the date requested, July 4, 1960, having passed, the matter has been rendered moot, and the petition should be dismissed.
The order of Special Term must be reversed and the petition granted in part. The Commissioner did not comply with his own regulation. In any event, such a power, as arrogated by the Commissioner, would be unconstitutional. Because the regulation requires provision of an alternative time and place, and the issue is of such vital constitutional significance, the proceeding has not been rendered moot.
First: The record does not support the grounds subsequently assigned by the Commissioner for his action.
At or about the time Rockwell made his application for a permit the metropolitan newspapers were filled with material about him, all to his evident satisfaction and purpose. His activities in his favorite haunt, Washington, D. C., near his home in Virginia, were publicized, including his arrest for creating public disorder by highly offensive, rabid, racist speeches. As a result, several organized groups in this city were aroused, the Mayor made public pronouncements, and the Commissioner in due course denied Rockwell’s application, without at that time assigning any reasons. In fact, all the Commissioner had before him, and that is still the only original administrative record, is a stark application, which, except for the designation ‘‘ American Nazi Party ”, and a reference to ‘‘ Storm Leader ”, suggests none of the things for which Rockwell stands or may be responsible.*
Later, in the judicial proceeding the Corporation Counsel endeavored to supplement the bare administrative record by annexing newspaper cuttings and leaflets distributed, purport*275edly, by Rockwell and his group. These reveal or represent the characteristic emissions of certain extremist, often paranoid, groups, not large in number, but often responsible for disorder in sensitive places in the Nation. Characteristically too, equivocal language is used suggesting dire acts of violence and destruction but not quite related to any immediacy in time. Group hate and fear are stimulated and expressly intended to be stimulated in those ripe for it. Whether the authors intend to attain their ends by unlawful or lawful means is not made clear, and undoubtedly purposely so. In this case the evidentiary relevance for these additions is never quite established. Not only were they not before the Commissioner, but no proper authenticating foundation was laid.
While it is true that petitioner has not replied to the answer interposed in the judicial proceeding, that is of no moment. In the first place, respondent makes no point of it. Moreover, the answer, since it annexes, as required by the statute, the evidentiary material in support of the affirmative allegations, establishes internally the insufficiency in law of the affirmative defenses. Consequently, petitioner is not procedurally disadvantaged by his failure to serve a reply to the conclusory allegations or to evidentiary matter that fails to support the conclusions (22 Carmody-Wait, New York Practice, pp. 475, 479-480). Where a point of law is involved with respect to the answer petitioner may but is not bound to serve a reply; he may elect to raise the issue by oral motion on the return date (Civ. Prac. Act, § 1293).
It is in the very spirit and purpose of proceedings under article 78 to provide a summary remedy, so summary, indeed, as to dispense with the need or occasion for the application of summary judgment under rule 113 of the Rules of Civil Practice (Civ. Prac. Act, §§ 1291, 1292, 1293; Matter of Ackerman v. Kern, 256 App. Div. 626, 630, affid. 281 N. Y. 87; Third Annual Report of N. Y. Judicial Council [1937] pp. 185-187; 22 Carmody-Wait, New York Practice, supra, pp. 475, 479-480; Tripp, A Guide to Motion Practice [rev. ed.], p. 283; cf. Matter of Clark v. Allen, 7 A D 2d 144, 146, motion for leave to appeal denied 6 N Y 2d 707; Matter of O’Brien v. Commissioner of Educ., 3 A D 2d 321, 325-326, appeal dismissed 4 N Y 2d 140, appeal dismissed, cert, denied sub nom. Murphy v. Commissioner of Educ., 361 U. S. 117). Above all, to decide this important matter on so technical a procedural point not raised, and therefore waived, would hardly be helpful to the authorities in meeting their responsibilities. And the question would come up again soon enough (see, infra, Fifth). But, in the light of the provisions of section 1296, and *276the nature of the answer and supporting affidavits, petitioner did not omit any procedural steps.
Consequently, there is no competent record upon which the Commissioner, Special Term, or this court, could reach the conclusion, even if otherwise legally permissible, that Rockwell’s proposed speech on July 4, 1960 was likely to create the disorders, upon the basis of which his application was denied.
Second: The Commissioner did not follow the regulation of his own department.
The Commissioner acted under section 21-a of the Rules of the Department of Parks.* It provides express standards. These bar all private or commercial uses. In addition, the rule bars various uses affecting adversely the physical facilities in the park, or the priorities of convenience. No standards are provided or suggested related to speech content. The rule mandates that, whenever a permit is denied for any but commercial or private uses, alternative suitable location and date must be offered to the applicant. This last the Commissioner did not do.
The regulation is one carefully and consciously drawn in the light of recent judicial constitutional pronouncements (People v. Nahman, 298 N. Y. 95; Saia v. New York, 334 U. S. 558; Cox v. New Hampshire, 312 U. S. 569). Thus, the regulation depends for validity upon the fact that it does not authorize censorship of speech content, condemned in the Saia case. There, in striking down a municipal ordinance adopted in this State, Mr. Justice Douglass said on behalf of the court: ‘ ‘ The present ordinance has the same defects [as in Cantwell v. Connecticut, 310 U. S. 296, infra; and Hague v. C. I. O., 307 U. S. 496, infra]. The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint is difficult to imagine ” (pp. 560-561).
Notably, in the Nahman case, a prosecution for displaying placards without a permit and involving section 21 (not § 21-a) of the Park Department Regulations, the then Commissioner represented to the court as follows: “ Meetings and other public events are never prohibited through the permit procedure but are merely scheduled and located as to area and time in an orderly way by making necessary adjustments in the place and time stated in the application for a permit where such adjustment is necessary in the interest of the comfort, convenience and protection of the general public in the use of the parks. The *277application procedure is used so as to limit the use of available areas to one group at a time and provide for proper police and other supervision where necessary so that meetings and other events will be orderly and without danger to the safety of others using the parks ” (p. 102).
Thereafter, section 21-a was adopted.* From its terms it appears to be a codification of the practice under section 21 then described by the commission. It follows the strictures of the court that in the regulations “ No power to suppress the publication of facts or opinions is thereby conferred and the sole standard of official action thereby countenanced is the promotion of beauty and utility of the public parks of the city—an objective which undoubtedly goes far to secure the safety, comfort and convenience of a population of more than eight million people” (pp. 101-102).**
Moreover, whatever doubt may have remained as to the right to speak in public parks without prior restraint was eventually made clear in Niemotko v. Maryland (340 U. S. 268), thus justifying the narrow and cautious handling of the permit procedure by the Park Department in the Nahman case (supra) and in the later draftsmanship of section 21-a. There it was held that a park commissioner could not withhold a permit to Jehovah’s Witnesses to speak, by reason of a municipal custom in which there were no limited standards confined to proper physical use of a park, and that, therefore, the permit was refused because of dislike for Jehovah’s Witnesses. A conviction for speaking without a permit was vacated . There is little to distinguish that case from this except that some may resent “ American Nazis ” more than Jehovah’s Witnesses.
Consequently, there is no doubt that the Commissioner arrogated a power he did not haye under the very regulation of his own department. On this view the regulation is valid under well-recognized constitutional principles, but the Commissioner’s action is vulnerable.
Third: Regulations aside, there is no power in government under our Constitution to exercise prior restraint of the expression of views, unless it is demonstrable on a record that such *278expression will immediately and irreparably create injury to the public weal—not that such expression, without itself being unlawful, will incite criminal acts in others.
The cases in support of this teaching are many. It is enough to refer to those in which the facts come quite close to those at hand (if a proper record could have and had been made).
In Near v. Minnesota (283 U. S. 697) there was involved a statute authorizing injunction to restrain publication of malicious, scandalous, and defamatory matter. The State courts enjoined defendant from publishing a periodical which, in undisguised language, charged an ethnic group with gangster control of Minneapolis. Capitalization of words, epithets, references, to violence and death were interspersed not only to be offensive but to be stimulative of group hate and fear. It was quite equal, in impact, to much of the literature attributed to Rockwell. The statute was struck down as an unconstitutional prior restraint on expression of views.
Much closer in time and much closer to home is Kunz v. New York (340 U. S. 290). In that case, Kunz, a self-styled religious preacher, used Columbus Circle in congested mid-Manhattan in New York City, to denounce in vicious and unbridled terms, Jews and Catholics. He too spoke of the incinerators of Hitler Germany, and regretted that the job was not complete. He had no permit as required by local ordinance, and was convicted for that violation. He was not prosecuted for any violation of law based on speech content. The Supreme Court struck the ordinance down as invalid previous restraint.
The court (p. 293) quoted from Hague v. C. I. O. (307 U. S. 496, 515, supra) with approval: ‘ ‘ ‘ Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ”
It went on to say on its own (per Vinson, Ch. J.): “ The court below has mistakenly derived support for its conclusion from the evidence produced at the trial that appellant’s religious meetings had, in the past, caused some disorder. There are appropriate public remedies to protect the peace and order of the community if appellant’s speeches should result in disorder or violence * * * We are concerned with suppression—not punishment” (pp. 294-295).
It makes no difference that the Kune case involved religious freedom. Indeed, it has been said neatly that there is an absolute right to religious belief, but that the right to religious speech or *279activity may be qualified, albeit only to a very limited degree (Cantwell v. Connecticut, 310 U. S. 296, 303-304).* Thus, for this purpose, the right of expression in religion or politics is about the same. Either right is equally qualified, just the same as the right to religious or political belief is equally absolute. But even the qualified right to speak on religion or politics is not subject to prior restraint with but the narrowest of exceptions.
The narrowest of exceptions relate to immediate and irreparable injury to the public weal (e.g., Schenck v. United States, 249 U. S. 47, involving anti-conscription activity in time of war; but compare De Jonge v. Oregon, 299 U. S. 353, in which it was held that participation in a “ lawful ’ ’ meeting of a subversive organization could not be made the subject of criminal prosecution). But this does not justify the perversion that if the actor’s speech, otherwise innocent, incites others to unlawful action he may be suppressed (Terminiello v. Chicago, 337 U. S. 1).
In the Terminiello case, a racist, rabid, suspended clergyman, spoke in a private hall. His speech would satisfy the generic definition in which the Kunz and Rockwell emissions fall. A crowd outside threw missiles, fights started, and doors were broken. The situation inside the hall was only a little better. It was no trivial affair.** Terminiello’s conviction, postfactum, was vacated because the charge to the jury was broad enough to encompass a finding of guilt, even if the defendant had said nothing unlawful. Said the court (per Douglas, J.): “ It [the charge] permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest ” (p. 5).
Even the dissenters (Vinson, Ch. J., and Frankfurter, Burton and Jackson, JJ.) in the Terminiello case did not seem to dispute that the measure of the speaker is not the conduct of his audience.
*280In the Kunz case (supra) Mr. Justice Jackson, in an eloquent dissenting opinion, made the most of the position now taken by respondent in favor of previous restraint. It did not prevail then, and has not since. This is not because the speeches of Kunz were any more tolerable than those of Rockwell. The problem is much deeper and more difficult.
Fourth: While there may not be a prior restraint on the expression of views, but for the narrowest of exceptions, there may be complete responsibility for the content of such expression.
Again, the cases are many. It is on such cases that respondent largely and mistakenly relies. They involve subsequent punishment for what was said, which expression unlawfully injured others or the public weal (Beauharnais v. Illinois, 343 U. S. 250*; Chaplinsky v. New Hampshire, 315 U. S. 568; Whitney v. California, 274 U. S. 357; Gitlow v. New York, 268 U. S. 652; People v. McWilliams, 22 N. Y. S. 2d 571 [Magistrates’ Ct.], revd. on other grounds 31 N. Y. S. 2d 37; People v. Doss, 384 Ill. 400).
Once again, there is precedent closer in time and closer to home. In Feiner v. New York (340 U. S. 315) the speaker was convicted of disorderly conduct when he refused to stop his provocative speaking as riot impended, although requested by police officers. (Perhaps it is of controlling significance that Feiner was inciting a “ mob ” to disorderly action in favor of his teaching; a “mob” was not reacting unlawfully to his speech, although adverse action was threatened by one or more individuals.) The conviction was sustained in the State courts, and in the Supreme Court. In the last court it was said (per Vinson, Ch. J.): “ 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. * * * 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 *281of 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 ” (pp. 320-321).
Now, there is no question that government, in each of its branches — executive, legislative and judicial—faces here one of its gravest domestic problems. Although marked advances in thinking and solution have occurred, total resolution has not yet been achieved. To some, the cases may seem to have zigzagged since the days of Davis v. Massachusetts (167 U. S. 43, in which, incidentally, it was the opinion of Mr. Justice Holmes, written with a much finer pen, in the Supreme Judicial Court of Massachusetts that was upheld [162 Mass. 510]) when it seemed, and it was said, that the municipality had absolute control of its streets and parks, even to the arbitrary exclusion of a speaker from Boston Common. Actually, a consistently forward-moving pattern emerges, and that pattern serves thus far to balance protection for the speaker and for the public.*
A community need not wait to be subverted by street riots and storm troopers; but, also, it cannot, by its policemen or commissioners, suppress a speaker, in prior restraint, on the basis of news reports, hysteria, or inference that what he did yesterday, he will do today. Thus, too, if the speaker incites others to immediate unlawful action he may be punished—in a proper case, stopped when disorder actually impends; but this is not to be confused with unlawful action from others who seek unlawfully to suppress or punish the speaker.
*282So, the unpopularity of views, their shocking quality, their obnoxiousness, and even their alarming impact is not enough. Otherwise, the preacher of any strange doctrine could be stopped; the anti-racist himself could be suppressed, if he undertakes to speak in “restricted” areas; and one who asks that public schools be open indiscriminately to all ethnic groups could be lawfully suppressed, if only he choose to speak where persuasion is needed most.
It is worth noting that Mr. Justice Frankfurter, in his concurring opinion in Niemotko v. Maryland (340 U. S. 268, 273 et seq., supra), which also covers his views in the Runs and Feiner cases (supra), stated a suggestive proposition with which one may agree. It is to the effect that municipalities or States can legislate effectively to prevent the mad, the criminal, or the subversive from taking over the streets, and this can be done in accordance with the requirements of the Fourteenth Amendment, but that it is not for the courts to tell them how (pp. 284-285).
Quite interesting in that connection is Poulos v. New Hampshire (345 U. S. 395), involving a park permit procedure, the same as that involved and sustained in the Cox case (supra). Substantially, the analyses here and in that case are in accord. Much more important is that the case has maximum significance for those who would legislate in this area. For, in the Poulos case, a conviction for speaking without a permit was sustained although the permit was arbitrarily refused, because, it was held, defendant should have exhausted his judicial remedies to review the administrator’s action. Of course, and emphatically, the case may not be misread to permit advance censorship of speech content, even in these circumstances.
Notably, when section 21-a itself was drawn, it was done with recent teachings in mind. But now, once again, against a speaker despised, hated, or feared, the lawless short-circuit is seized upon. The evil to be ended provokes evil means to that end. This is not good law or good morals. No doubt, too, suppression is easier than punishment. No doubt suppressing a minority is easier than keeping a misbehaving majority in line. But that is exactly the purpose of law, and of government under law. Indeed, the moral imperative is for all to obey the law, the audience as well as the speaker, and especially those who do not wish to be even a part of the audience.
Only if Rockwell speaks criminally (or, perhaps, if it is established on a proper record, in that very rare case, that he will speak criminally, not because he once did, but that he will this time, and irreparable harm will ensue) can his right to speak *283be cut off: If he does not speak criminally, then, of course, his right to speak may not be cut off, no matter how offensive his speech may be to others. Instead, his right, and that of those who wish to listen to him, must be protected, no matter how unpleasant the assignment.
Fifth: Because of the important public issue involved and the future significance of the constitutional questions raised, and also because the Commissioner failed to provide petitioner with an alternative time and place for his speech, the proceeding has not been rendered moot.
On public significance justifying retention of jurisdiction see: Matter of Rosenbluth v. Finkelstein (300 N. Y. 402, 404) and Matter of Adirondack League Club v. Black Riv. Regulating Dist. (301 N. Y. 219, 222). In any event, the matter is not moot because under the park regulation petitioner would be entitled to an alternative time and place, if the Commissioner should find that Union Square Park was unsuitable as to either or both (§ 21-a, supra). In other words, the date requested in the application is not determinative of the matter.
In summary, the key to understanding is really very simple: The right of free expression is not to be entrusted to administrative previous restraint for contemplated violation of law, but such expression is not immune from punishment after the fact for what has been said, by judicial process. This is not unreasonable. History elsewhere has shown the executive sometimes to establish tyranny and dictatorship by the powers of suppression.
Surely, there is risk in denying prior restraint. It is a price paid for liberty while order is to be preserved by the sanction of punishment after the fact. It is the price paid for not having the policeman or the Commissioner as censor, while leaving the courts, disciplined by appellate review and the rules of evidence, to provide punishment under criminal standards for the unlawful act already committed.
But the risk is not so great as to be intolerable in a civilized, law-abiding community. Indeed, recent events, when especially provocative personalities attended an international meeting in this city, prove otherwise. Then these personalities did not represent mere mad ravings but effective, and not too remote, threats of widespread death and destruction. Nevertheless, the people, at least the residents, in this community, to many of whom these personalities were directly offensive and repugnant, did not resort to riot. They knew what was expected of them. It had also been made quite clear to them that the law was to be *284enforced without discrimination. The reward was not only the order which obtained, but the national respect that ensued for the people and their police force.
Of course, recent events, elsewhere, have shown that riotous conditions can be produced or will occur, merely by law enforcement agencies declaring their inability to prevent riot, and asking, even in courts of law, for the right to be denied so that riot will not occur. (Cooper v. Aaron, 358 U. S. 1, and also the opinion below, sub nom. Aaron v. Cooper, 257 F. 2d 33, esp. 39, involving the Arkansas school integration case of recent memory.)*
It is not law or order that is fashioned to avoid riot at the expense of compromising constitutional guarantees. Instead, it is something which can end only in anarchy and then tyranny.
On argument, the intervenor conceded that, except as an organized group in the public generally, it had no legal interest in this litigation. Consequently, it was improvidently made a party, and the court on its own motion should strike intervenor as a party to the proceeding and its name from the title thereof.
For the reasons given at Special Term the ex parte order issued in Kings County may be ignored. Moreover, it bears on its face the void exercise of unconstitutional power.
Provision should be made for the filing of a new application by petitioner, if he wishes, since the date requested by him has long since passed.
Accordingly, the order of Special Term dismissing the petition should be reversed, on the law, without costs, and the petition should be granted to the extent of remanding the matter to the Commissioner for the purpose of allowing petitioner to file a new application for a permit and for the Commissioner to proceed thereon in accordance with this opinion; and this court on its own motion should strike from the proceeding the intervenor as a party and strike from the title its name and designation as such party.
*285APPENDIX A
DEPARTMENT OP PARKS
CITY OP NEW YORK
Borough op Manhattan
Application for Permit to Hold a Speech
Application Number
Date May 17,1960
Speech on July 4, 1960
To the Commissioner of Parks:
I George Lincoln Rockwell, Telephone No. JAckson 4-5831 residing at 928 North Randolph Street, Arlington, Virginia, holding the office of Commander in the American Nazi Party hereby apply in the name of that organization for a permit to hold a speech in union square at (illegible) from three p.m. to five p.m. on July 4 (fourth), 1960.
1. Character of organization Political
2. Is organization incorporated? No? Where? When?
Total membership 57
3. Number who will take part in event. Active Participants approx. 12 Spectators approx. 30-40
4. Give name and address of each officer who will participate in the event:
Name Office Tel. No. Address
Lincoln Rockwell Commander JA-4-5831 928 N. Randolph
Arlington, Va.
J. V. K. Morgan Deputy Commander “ 298 Chinquapin Vil,
Alexandria, Va.
Louis Yalacki Lieutenant “ Same as Rockwell
(above)
George Harriss Storm Leader “ Same as Rockwell
(above)
Exercise constitutional right of free speech on 5. Purpose of Event political opinions.
No Time Will there be a band? 6. a. Will there be a parade? No. (record) Time
b. Will there be speeches? Time
c. Supervision to be provided by organization 8 ushers.
d. Will buses be required for transportation? No. How many?
e. Will trucks be required for deliveries? No. How many?
f. Other pertinent information All hands will arrive and depart the area in private vehicles.
7. State previous events held in parks by the organization? Event speeches Location The Mall (9th & Const.) Washington, D. C. Date every Sun. since 3 April
8. Name, address and telephone number of chairman Lincoln Rockwell, address and phone above.
LINCOLN ROCKWELL
Approved
Disapproved
Approved
Disapproved
A self-addressed Stamped Envelope Must Be Submitted with This Application to the Borough Office.
*286APPENDIX B
RULES AND REGULATIONS OF NEW YORK CITY AGENCIES
CHAPTER 15
DEPARTMENT OF PARKS ■
Article III
Section 21. Exhibitions, Parades, Racing, etc.
1. No person shall erect any structure, stand or platform; exhibit any dramatic performance, or the performance in whole or in part of any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy, dancing, entertainment, motion picture, public fair circus, juggling, rope-walking, or any other acrobatics, or show of any kind or nature; or parade, drill or maneuver of any kind; or run or race any horse, or other animal or being in or on a vehicle, race with another vehicle or horse whether such race be founded on any stake, bet or otherwise; or hold any athletic contest; in any park or upon any park-street except by permit.
2. The Commissioner may in his discretion issue such permit upon application when he deems it consistent with the proper use and protection of the park property under his jurisdiction.
Section 21-a. Meetings, etc.
1. No person shall erect any structure, stand or platform, hold any meeting, perform any ceremony, make a speech, address or oration; exhibit or distribute any sign, placard, notice, declaration or appeal of any kind or description; in any park or upon any park-street except by permit.
2. Upon application such permit will be issued unless—(a) The use for which the permit is sought is of a private or commercial nature or (b) The location selected is not suitable because the area is specially landscaped and planted with botanical, flower, shrub or tree exhibits or (c) The location selected is not suitable because it is one of the specialized park use areas such as zoos, skating rinks, swimming pools, recreational, etc. or, (d) The date and time requested has previously been allocated by permit, or would obstruct and interfere substantially with park use and enjoyment by the public.
3. Whenever a permit is denied by reason of (b), (c) or (d) above, alternative suitable locations and dates shall be offered to the applicant.
Section 21, as it read at the time that People v. Nahman (298 N. Y. 95, supra), was decided, provided as follows:
“Meetings, Exhibitions, Parades, Pacing, etc. No person shall erect any structures, stand or platform, hold any meeting, perform any ceremony, make a speech, address or harangue; exhibit or distribute any sign, placard, notice, declaration or appeal of any kind or description; exhibit any dramatic performance, or the performance in whole or in part of any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy, dancing, entertainment, motion picture, public fair, circus, juggling, rope-walking, or any other acrobatics, or show of any kind or nature; or run or race any horse, or other animal, or, being in or on a vehicle, race with another vehicle or horse, whether such race be founded on any stake, bet or otherwise; in any park or upon any park street except by permit. No parade, drill or manoeuver of any kind shall be conducted, nor shall procession form for parade or proceed in any park or park street without a permit” (pp. 100-101).
The deletion of references to meetings and to various processions, in the light of the eases, is markedly significant.
A copy of the application is attached as Appendix A.
The full text of section 21-a is set forth as Appendix B. Because of relevance later, section 21 is also set forth in the same appendix.
Section 21 was also amended and the amendments are quite significant. Section 21, both in the form in which it was at the time of the Nahman ease and as it reads today, appears in Appendix B.
People v. Hass (299 N. Y. 190; app. dsmd. 338 U. S. 803) held no differently. The Hass case involved erecting a stand in the streets and speaking without a permit, not the refusal of a permit. The regulation was sustained because it was not discriminatory of speech content but was solely designed to-protect public convenience.
Further, it was said (Per Roberts, J.): “No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a State may by general and non-diseriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment ” (p. 304).
The detailed description is to be found in the dissenting opinion of Mr. Justice Jackson (pp. 13-23).
Consider the moving language, appropriate here, of Frankfurter, J., for the majority: “ Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community” (pp. 258-260).
But the remedy was postfactum punishment for the deed done. There was punishment for unprivileged expression, not previous restraint.
For an exceptionally thoughtful analysis, see Freund, The Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533 (1951). See, also, McKay, The Preference for Freedom, 34 N. Y. U. L. Rev. 1182, but esp. at 1215 (1959); cf. Note: Prior Restraint, 49 Col. L. Rev. 1001 (1949).
For a philosophical evaluation see Cahn, Firstness of the First Amendment, 65 Yale L. J. 464 (1956).
For two thoughtful and quite useful notes in analyzing the relations between innocent speaker v. lawless audience, guilty speaker v. lawless audience, and guilty speaker v. law-abiding audience, together with responsibility for foreseeable reaction in the audience, see:
Note: Problem of The Hostile Audience, 49 Col. L. Rev. 1118-1124 (1949);
Note: Free Speech and The Hostile Audience, 26 N. Y. U. L. Rev. 489-505 (1951).
The first note was written before the trilogy of the Kunz, Niemotho, and Feiner cases {supra), while the second note was written thereafter. With respect to the latter, one hardly may agree with the interpretation, qualified though it is, of the Feiner case.
In the Court of Appeals it was said: “ The precise question at issue herein, i.e., whether a plan of integration, once in operation, may lawfully be suspended because of popular opposition thereto, as manifested in overt acts of violence, has not received judicial consideration.” (257 F. 2d 33, 37.)
In the Supreme Court it was said: “ The constitutional rights of respondents are not to he sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature.” (358 U. S. 1, 16.)