The order appealed from should be affirmed and the petition dismissed. The petitioner does not show a clear legal right to any relief herein; and, in any event, this court, in the exercise of discretion, should deny relief to the petitioner.
The petition herein alleges an application to the Commissioner of Parks of the City of New York for a permit to hold a speech on behalf of the “ American Nazi Party ” in a certain park, at a specified time on a certain date, to wit, ‘ ‘ for a permit to hold a speech in union" square * * * from three p.m. to five p.m. on July 4 (fourth), 1960”. The petition further sets forth that the application for the permit was denied by the respondent Commissioner without the statement by him of any reason for such denial, and that, in denying said application, the respondent did not offer the petitioner alternative suitable locations and dates. It is thereupon alleged that the denial of the permit constitutes the exercise by the respondent of a prior restraint and censorship of the proposed speech of the petitioner and unlawfully discriminates against him, all in violation of the Constitution of the United States and of the Constitution of the State of New York. Petitioner thereupon prays for an order “directing and compelling” the issuance of a permit for a public speech in “ Union Square Park ”.
The answer of the respondent Commissioner denies the material allegations of the petition other than the allegations of the making of the application by the petitioner for the permit to make a speech on behalf of the American Nazi party and the denial thereof without the offering of other locations and dates. In addition, the answer affirmatively alleges, among other things, “ That the American Nazi Party is a subversive organization advocating the overthrow of the constitutional government of the United States by force and violence in violation of Sec. 160 et seq. of the Penal Law”; that “the purpose of the proposed meeting for which petitioner sought a permit was to advocate the aims and purposes of the American Nazi Party ”; that “ one of the aims and purposes of said American Nazi Party is the perpetration of racial genocide upon persons of Jewish ancestry by extermination in gas chambers ”; that “ the use of public property owned by a political subdivision of a state to urge racial genocide is contrary to law”; that “ the aims and principles of the American Nazi Party in whose behalf the petitioner sought to conduct a public meeting* are such as to have the natural and consequential effect of inciting an ordinary prudent person to acts of violence and disorder ”; that the Police Department, while it “ is capable of quelling the riot *288and disorder that would flow from the advocacy of the aims and purposes of the American Nazi Party by the petitioner and his followers, * * * is powerless to prevent such riot or disorder from occurring in the first instance.”
The allegations of the answer of the respondent are buttressed by affidavits indicating that Rockwell would use the permit to hold a meeting in this park of his followers to make a highly abusive and provocative speech, which would, without doubt, tend to create riot, disorder and a breach of the peace. The Commissioner of Parks in his affidavit alleges that the denial by him of the permit ‘ ‘ was predicated upon the determination by me and the Mayor of the City of New York that such a meeting could not be held by the petitioner and his followers without resultant disorder, riot and violence endangering city property and the safety and welfare of the residents of the City. * * * His past course of conduct clearly justifies the conclusion that he is deliberately intent on provoking his listeners, friendly or otherwise, to acts of violence * * *. It is inevitable that should the petitioner seek to pursue his purpose of ‘ A discussion of the political opinions of said organization ’ * * * as in the past, riot and disorder will follow. * * * A reading of the documentations of the petitioner and his fellow hate-mongers can leave no doubt that given a public forum he would pursue his established pattern of reiterating his evil principles to the degree that no decent person within his hearing could refrain from taking some overt steps to halt his vicious attack.”
Hon. Robert F. Wagner, the Mayor of the city, in his affidavit, calls attention to the fact that “ General Municipal Law-, Section 71, imposes liability upon a city to a private person whose property is destroyed or injured therein by a mob or riot”, and notes that “this section imposes personal liability upon the Mayor, if, after notification of a threat or attempt to destroy or injure property by a mob or riot, he neglects or refuses to take all lawful means to protect said property. ’ ’ He then avers that his “ decision and that of Commissioner Morris to deny petitioner’s application was not predicated upon personal abhorrence for the philosophies expressed by the individual * * * [but] was made by me as Chief Executive Officer and by Commissioner Morris in fulfillment of our obligations as placed upon us by law, based upon information furnished from qualified sourcés which established that petitioner’s philosophy is not one of mere political expression but is one espousing the spread of hate,' dissension, fear and discord and more important, the advocacy of the extermination and annihilation of a segment *289of our New York citizens because of their religious background. * * * TRe overwhelming factual evidence irresistibly supported the conclusion that petitioner’s persistent course of inflammatory conduct would inevitably lead, as it has in the past, to the use of language and acts calculated to incite normal and reasonable persons to acts of violence.” Further that “ The petitioner has never disclaimed any intent to make pronouncements of the nature herein described. In fact, his frankness in public statements leaves no doubt as to his purposes and motives in seeking the permit. Under these circumstances, the situation requires me to exercise the powers vested in me by the Charter to protect the residents of the City of New York against riots, disorder and acts of violence.”
True, the quoted allegations from the affidavits are principally conclusory in nature, but, in my opinion, they are amply supported by factual detail in the record not denied by the petitioner.
The petitioner Rockwell was by law given an opportunity herein to present an issue and to be heard thereon. His failure to deny the affirmative matter set up in the answer of the Commissioner is not only most persuasively indicative of his unlawful intentions but has legal significance which is not to be overlooked. If the petitioner desired to dispute the allegations of the answer, he was bound to serve a reply. He has not served a reply, nor replying affidavits. Therefore, the affirmative matter alleged by the Commissioner in his answer is to be deemed admitted to be true. (Civ. Prac. Act, § 1292; Matter of De Marco v. Fitzgerald, 10 A D 2d 887; Matter of Marshall v. O’Connell, 285 App. Div. 855.)
It is true that the respondent makes no specific point of the failure of the petitioner to reply to the answer and to the proofs submitted by respondent. This, however, is immaterial and constitutes no waiver of the right of the respondent to have a determination upon the record before the court. The failure of the petitioner to reply virtually results here in an undisputed record and permits the court to finally dispose of the proceeding in accordance with the law.
Under the circumstances, we know in substance what the petitioner Rockwell will say and seek to accomplish. We have an undisputed record indicating that he would use the sought for permit to make a highly offensive and very provocative speech insulting generally the good citizens of the city and country of particular races or origin. It appears that he will thereby incite and create criminal acts, or, in any event, bring about such a disorderly demonstration as to interfere with the *290public comfort and safety in this particularly congested area in New York City. Therefore, the action of the respondent Commissioner of Parks in his flat denial of the petitioner’s application may and should be sustained.
It is to be noted that the position of the petitioner was then and now is that he was and is entitled as a matter of absolute right to a permit to make a speech in Union Square Park in the City of New York. The learned Justice at Special Term (26 Misc 2d 229, 230) so considered the petitioner’s application, for he said: “ Petitioner here insists upon the ' right ’ to speak in Union Square, a small place in the heart of New York City’s crowded business and residence area, and he demands an unrestricted permit, subject only to police and criminal legal action there and then, to speak his piece. Counsel for petitioner went so far, in answer to this court’s inquiry, to state that a ‘ madman ’ was entitled to the issuance of such a permit and no limitations or conditions can be fixed by the respondent Commissioner on the issuance of such license.”
Certainly, the petitioner Rockwell may not be upheld in a position that he is beyond control of law and that he may speak what, when and where he pleases without limitation. Neither constitutional mandate nor other law gave him the absolute right to speak in Union Square Park on the Fourth of July, or, for that matter, on any other day. A reading of the decisions would indicate that a municipality, by reasonable regulation, may control the making of speeches in streets and parks, providing such regulation is directed to the protection of public peace and of the primary uses of travel and recreation for which streets and parks exist. (Decisions are referred to infra.) Some latitude for honest judgment may be left to the local officers. Condemned only is the vesting in administrative officials or in the court, for that matter, of the discretion to grant or withhold a permit to speak in a public street or park upon broad criteria unrelated to proper regulation of public places. (See Kunz v. New York, 340 U. S. 290, 294.)
It was proper, therefore, that a measure of discretion be vested with the Commissioner of Parks in connection with issuance of permits for park use; and the applicable laws and regulations indicate that he does have some discretion. By virtue of section 532 of the City Charter, the Park Commissioner was charged with the “ care of all parks, parkways, squares and public places ”. The Rules and Regulations of the Department of Parks provide that “No person shall * * * hold any meeting * * * make a speech, address or oration * .* * in any parks or upon any park-street except by permit.” It-is *291further provided that the permit shall be issued unless, among other things, the “ date and time requested * * * would obstruct and interfere substantially with park use and enjoyment by the public ”, and in such case it is provided that “ alternative suitable locations and dates shall be offered to the applicant ”.
By virtue of the aforesaid laws and regulations, there is expressly conferred upon the Park Commissioner the power to refuse to issue a permit to use a particular park on a particular day where he is of the opinion that the granting of the same ‘ ‘ would obstruct and interfere substantially with park use and enjoyment by the public.” Thus, it is clear that the respondent Commissioner was possessed of a measure of discretion in the premises. (See People ex rel. Schwab v. Grant, 126 N. Y. 473, 481; People ex rel. Doyle v. Atwell, 232 N. Y. 96; Matter of Dr. Bloom Dentist v. Cruise, 259 N. Y. 358; Matter of Barton Trucking Corp. v. O’Connell, 7 N Y 2d 299, 307.) And, under the settled rule, applicable when discretionary administrative action is questioned, the Commissioner’s denial of petitioner’s application for the permit is not to be interfered with by the courts unless established to be unlawful, arbitrary or capricious. (See Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Barton Trucking Corp. v. O’Connell, supra.)
Where, as here, there were reasonable bases for the Commissioner’s conclusion that the use of Union Square Park by the petitioner would result in ‘‘ disorder, riot and violence endangering city property and the safety and welfare of the residents of the City ’ ’, his determination to refuse the permit was within the limits of the discretion conferred upon him. (See People v. Nahman, 298 N. Y. 95, 102, 103.) Such determination was in keeping of law and order rather than unlawful or arbitrary. It was well grounded rather than capricious.
The Commissioner had the power to deny the petitioner’s permit application, and his mere failure to proceed further and offer the petitioner ‘ ‘ alternative suitable locations and dates ”, as required by the Park Rules and Regulations is not in issue here. The petitioner, as noted above, took the position in his application to the Commissioner and in the court below that he had the absolute right to speak in Union Square Park. It is clear that such is his position on this appeal. As will be hereinafter pointed out, the petitioner has no such right.
The failure to allow petitioner to speak in a park was not unlawful for the reason, as contended for by the petitioner, that it was in contravention of his constitutional rights. The guarantee of the First and Fourteenth Amendments to the United States Constitution of free speech to the individual is not *292absolute. (Times Film Corp. v. City of Chicago, 365 U. S. 43.) “Liberty of speech, and of the press, is also not an absolute right”. (Near v. Minnesota, 283 U. S. 697, 708; Kingsley Books v. Brown, 354 U. S. 436.) “ The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to-express may gather around-him at any public place and at any time a group for discussion or instruction. It is a non sequitur to say First Amendment, rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary.” (Poulos v. New Hampshire, 345 U. S. 395, 405.)
The right to conduct a meeting in a street or public park for expression of one’s opinions is not guaranteed by the Constitution. The decision in Hague v. C. I. O. (307 U. S. 496), while strongly advocating the preservation of civil liberties generally, nevertheless held that the right to speak in the street or a public park was not unlimited. Mr. Justice Roberts said (pp. 515-516): ‘ ‘ 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. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”
The petitioner, pointing to this decision (Hague case, supra) and other decisions (see, also, Niemotko v. Maryland, 340 U. S. 268) argues that any and all prior restraint upon speaking in a public park is unlawful as frustrating the constitutional guarantees. It is clear, however, that the constitutional “ protection even as to previous restraints is not absolutely unlimited ”. (Near v. Minnesota, supra, p. 716; Kingsley Books v. Brown, supra, p. 441; also Times Film Corp. v. City of Chicago, supra.) Mr. Justice Story defined the pertinent constitutional phrase to mean “ that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure *293any other person in his rights, person, property, or reputation; and so always that he does not thereby disturb the public peace, or attempt to subvert the government.” (2 Story, Commentaries on the Constitution [5th ed.], § 1880, formerly § 1874. [Quoted in People v. Most, 171 N. Y. 423, 431.]) “ There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and the 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.” (Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572. Emphasis supplied.)
In Kingsley Books v. Brown (354 U. S. 436, 441-442) the United States Supreme Court upheld section 22-a of the Code of Criminal Procedure which permitted an injunction against the sale of obscene books. In holding that “ the protection even as to previous restraint is not absolutely unlimited”, the court (Mr. Justice Frankfurter) said: “ The phrase ' prior restraint ’ is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: ‘ What is needed, ’ writes Professor Paul A. Freund, ‘ is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is' particularly obnoxious in civil liberties cases must yield to more particularistic analysis. ’ The Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533, 539.”
Pressing his argument that the Commissioner’s action constituted unlawful prior restraint of speech, the petitioner says that thereby the Commissioner in effect assumed the power of censorship of proposed speech. He argues (quoting from his brief), “ There may be consequences to a speaker for stirring up a group to illegal action * * * or insulting a person to his face in personal quarrel, * * * But it is censorship to try to guess or anticipate that disorder would follow or that the speaker will be lawless, with ensuing riot in resentment.” But, under the showing here one does not have to guess or speculate that disorder is intended and would follow from the meeting and speech planned by the petitioner. Certainly, he is not to be given a permit on the theory that he should be given the benefit of a doubt where there is no doubt. This court is not required to let a known “ mad dog ” take a first bite. Neither *294law nor reason dictates that administrative officers or the courts shall grant a permit tending to result in crime and disorder in furtherance of alleged right of free speech.
The action of the Commissioner was not intended or taken in furtherance of a purpose of censorship, but his determination was, in his words, taken to thwart “ resultant disorder, riot and violence endangering city property and the safety and welfare of the residents of the City ”. Viewed in such light, his action was fully justified. Upon the undisputed record before this court, the making by the petitioner of the abusive, near treasonable and provocative speech which he unquestionably would make, will result in disorder and crime. The words that he would utter and his proposed meeting would be such that thereby a breach of the peace would undoubtedly occur. He would, upon receiving the permit, commit acts which unquestionably would be in violation of valid Penal Law provisions. (See Feiner v. New York, 340 U. S. 315; People v. Nesin, 179 App. Div. 869.) For instance, it is provided by the Penal Law (§ 722) of oar State, that one commits the offense of disorderly conduct, and is punishable therefor, where ‘ ‘ with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned,” he
“ 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; [or]
‘ ‘ 4. By his actions causes a crowd to collect, except when lawfully addressing such a crowd”.
It is further provided by section 43 of the Penal Law that ‘ ‘ A person who wilfully and wrongfully commits any act * * * which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, for which no other punishment is expressly prescribed by this chapter, is guilty of a misdemeanor ”.
Under the circumstances, Feiner v. New York (supra) stands four-square for the authority of this State court to refuse petitioner relief. There, the petitioner had been convicted of disorderly conduct in violation of section 722 of the Penal Law. It appeared that while standing on a box and addressing an open-air meeting in the public street in the City of Syracuse, he made derogatory remarks concerning our then President, the American Legion, the Mayor of Syracuse, and other public officers. *295Before a mixed audience, ‘ ‘ He gave the impression that he was endeavoring to arouse the Negro people against the whites The crowd began to get unruly, and an officer requested the petitioner to stop. He continued talking and the officer placed him under arrest and ordered him to get down from the box. He was tried for disorderly conduct and the Trial Judge reached the conclusion “ that the police officers were justified in talcing action to prevent a breach of the peace ”. Recognized by the State courts and the Supreme Court was the general right of the petitioner to make his particular speech in the public street, and as the Supreme Court pointed out, “ Petitioner was * * * neither arrested nor convicted for the making or the content of his speech. Rather, it was the reaction which it actually engendered ”. The Supreme Court reaffirmed its position that “ A State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.” Nevertheless, it held that under the particular circumstances it was not improper for the officers to arrest and stop the petitioner in his speaking and it upheld his conviction, Mr. Chief Justice Vinsox saying (p. 320): “ The language of Cantwell v. State of 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. * * * 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 Ú. S. at 308. * * * 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, 160 (1939); Kovacs v. Cooper, 336 U. S. 77, 82 (1949). We cannot say that the preservation of that interest here encroaches on the constitutional rights of this petitioner ”.
Finally, it is to be borne in mind that, in this type of proceeding, which is in the nature of a mandamus proceeding, the burden is upon the petitioner to show the necessity and propriety of granting the relief sought. And he may succeed only upon a demonstration of a clear legal right thereto. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464, 469; Matter of Coombs v. Edwards, 280 N. Y. 361, 364.) Here, certainly, as heretofore demonstrated, the petitioner has no clear legal right to any relief.
*296In any event, even if, because of limitations upon the discretion of the respondent Commissioner, his action is questionable, this court, upon the basis of the authorities aforesaid and in the exercise of discretion, may and should refuse the petitioner relief which would have the effect of encouraging him in his objectives which are clearly contrary to public policy and unlawful.
In a proceeding such as this, namely, an article 78 proceeding, in which an order in the nature of a mandamus order is sought to compel certain action by a public officer, the granting or withholding of relief to petitioner is a matter resting within the sound judicial discretion of the court. (Matter of Pruzan v. Valentine, 282 N. Y. 498; Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464, 469, supra; Matter of Black v. O’Brien, 264 N. Y. 272.) ‘‘ Although the order is classed as a legal remedy, equitable principles largely control its issuance. * * * While the applicant must present an issue for the enforcement of a clear legal right, yet even then the court may determine whether, in the exercise of a sound discretion, it shall grant or withhold the order.” (Matter of Coombs v. Edwards, 280 N. Y. 361, 364, supra.). Relief may be denied to a petitioner in this type of proceeding if he does not come into court with clean hands or where the granting of relief is contrary to public policy. (Matter of Coombs v. Edwards, supra; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Dr. Bloom Dentist v. Cruise, 259 N. Y. 358, supra; Matter of Warehousemen’s Assn. v. Cosgrove, 241 N. Y. 580; Matter of Salisbury v. Rogers, 252 App. Div. 223; Matter of Savage v. Commissioner of Licenses, 3 A D 2d 717; Matter of Frasier-Davis Constr. Co. v. Gerosa, 6 A D 2d 112.)
In summary, let it be noted that I fully agree that it should be and is the policy of the courts to exercise discretion in favor of complete freedom of speech rather than in restriction thereof. A court should not, and may not prohibit any person from speaking merely upon the premise that it disagrees or is displeased with or even abhors the doctrine to be proclaimed in his proposed utterances. Nor should fear of an anticipated breach' of peace or other consequences influence any court to silence a political zealot, however abominable his doctrine may be. But it is one thing for a court to restrain a person absolutely from speaking in a community and quite another for the court, in the interest of public peace and order, merely to refuse to affirmatively act to enable him to speak in a public park in the community. (Here, it should be noted that petitioner concedes *297that he is not silenced — that he is not being restrained in speaking in the public street or in private hall in the city.)
For this court to remand the matter to the Commissioner for the purpose of his granting a permit to the petitioner to speak at some public park on an alternative date is only to evade the issue here. If, following such a remand, the Commissioner should specify a park site or date unsuitable to the petitioner, he will thereby be limited as to the place and time of speaking. There would thereby be limitation to a degree, and if there is a right to such limitation, then under the undisputed facts here, there would be justification to withhold from him altogether a permit to speak in a public park in the city.
The granting of relief to the petitioner Rockwell amounts to an invitation for a display of disgraceful mob action as is fully indicated by his prior speech-making incidents. We abhor mob action—for the havoc, the destruction, the injury and the misery it causes. We seek to guard against it, for, as history teaches us, mob action gnaws at the very heart of liberty and can be to free citizens the forerunner of the loss of most precious rights.
Where, as here, it clearly appears that the protecting of one individual in unrestrained freedom of speech is incompatible with public policy and order, the latter should prevail. In holding otherwise, this court would relinquish its role as a true guardian of the proper rights of all our people.
I concur in the granting by this court of the motion to strike the intervenor as a party to this proceeding.
Rabin-, Valente and Stevens, JJ., concur with Bbeitel, J. P.; Eager, J., dissents in part and votes to affirm in opinion.
Order entered on August 30, 1960, denying petitioner’s application for an order directing the Commissioner of Parks of the City of New York to issue a permit to the petitioner to speak in Union Square Park and dismissing the petition, reversed, on the law, without costs, and the petition 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 the opinion of Bbeitel, J. P., filed herein. The intervenor, Department of New York Jewish War Veterans of the United States, Inc., is stricken as a party respondent in this proceeding and the caption of this proceeding is hereby amended by deleting and striking the name of said intervenor as a party hereto.