Petition for Writ of Certiorari — Morris v. Rockwell (No. 390)

(36527) PS coe al | ee

SEF 7

IN THE

Supreme Court of the United States

October Term, 1961

No. 390 |

NEWBOLD MORRIS, as Commissioner of Parks

of the City of New York,

Petitioner,

against

GEORGE L. ROCKWELL,

Respondent.

Se ee a

nett —

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

—

Leo A. LarkKIn,

Corporation Counsel of

the City of New York,

Attorney for Petitioner,

Municipal Building,

New York 7, New York.

of Counsel:

Seymour B. QUEL,

SauL Moskorr.

ie ©

en]

JAMES R BRUANING Cierk

i SF

INDEX

PAGE

Petition:

Citations of Opinions Below 2

Jurisdiction | | 2

Question Presented for Review a

Manner in which Federal Question Sought to be

Reviewed was First Raised | 7

The Facts _. | een eroaeres R

The Decisions Below ‘ Se ena ee

Argument Relied on For Allowance of Writ 17

Conclusion 28

Appendix A ae 3 ? 29

Appendix B .. ae aeeeea Bor AR oe Oi AS 32

Cases Cited

Board of Education v. Barnette, 319 U. S. 624 (1948) 238

Cantwell v. Connecticut, 310 U. S. 296 (1940) 26

Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) ae

Feiner v. People of the State of New York, 340 U. S.

315 (1951) eo eee ies x 17

Giboney v. Empire Storage Co., 336 U. S. 490 (1949) 2

Gitlow v. New York, 268 U. S. 652 (1925) 2

il Index

Kingsley Books, Ine. v. Brown, 354 U.S. 486 (1957) — 29

Konigsberg v. State Bar of California, 366 U. S. 36

(1961) a

Kunz v. New York, 340 U. S. 290 (1951) ——

Matter of Dr. Bloom, Dentist, Ine. v. Cruise, 259

NN. ¥. 308, 182 N. E. 16 (1982), reargument denied

260 N. Y. 541, 184 N. E. 97 (1932), appeal dis- ,

sabia 288 U.S. 588 (1932) . : 27

People v. Hass, 299 N. Y. 190, 86 N. E. 2d 169 (1949),

appeal dismissed 338 U.S. 808 (1949) . 26

People v. Nahman, 298 N. Y. 95, 81 N. E. 2d 36 (1948) 26

Schenck v. United States, 249 U.S. 47 (1919) — . | 22

Times Film Corp. v. Chieago, 365 U. S. 48 (1961),

rehearing denied id. 856 Re nen Desde ran 19

Index ill

Statutes, etc., Cited

PAGE

New York City Charter

Section 531 +

Section 532 a

Section 534 3

Rules of the New York City Department of Parks —

Section 21l-a | 2 6

Administrative Code of the City of New York, Section

435-7.0 , | 26

New York State Penal Law, Section 22-a 20)

~ New York State Laws of 1909, chapter &8 24

U.S. Code, Title 28

Section 1257 3

Section 2101 (c) , 3

40 U.S. Statutes 217 a

United States Constitution Cited

Amendment I | 4

Amendment XIV, Seetion 1 4

IN THE

Supreme Court of the United States

October Term, 1961

NEWBOLD Morris, as Commissioner of Parks

of the City of New York,

Petitioner,

against

Grorce L. RockweEit.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

To the Supreme Court of the United States:

Newbold Morris, as Commissioner of Parks of the City

of New York, prays that a writ of certiorari issue to review

the Final Order of the Court of Appeals of the State of

New York entered on June 9, 1961.

bo !

Citations of Opinions Below

The opinion of the Supreme Court of the State of New

York is reported in 26 Mise 2d 229, 208 N. Y. S. 2d 14.

It is printed in the reeord (247-251).* The majority and

dissenting opinions of the Appellate Division of the State

of New York, First Judicial Department, are reported in

12 AD 2.1 272, 211 N. Y. S. 2d 25. They are printed in the

record (274-399). The decision of the Court of Appeais

of the State of New York affirmed without opinion the or-

der of the Appellate Division and is not as yet reported.

A motion to amend the remittitur was granted by the Court

of Appeals and is not as yet reported. Copies of the or-

ders of the Court of Appeals affirming the order of tle

Appellate Division and granting the motion to amend the

remittitur.are annexed hereto and marked Appendix A and

Appendix B, respectively.

Petitioner is filing herewith nine copies of the record as

printed for the use of the Court below.

Jurisdiction

The final order of affirmance of the Court of Appeals

of the State of New York which is sought to be reviewed

herein was made and entered on June 9, 1961.

A motion to amend the remittitur was msde in the

Court of Appeals of the State of New York and was grant-

ed, and an order to tnat effect was entered on July 7, 1961.

The order directed that the remittitur be amended to read

as follows:

* Numerals in parenthesis refer to folios of the printed record

on appeal to the Court of Appeals of the State of New York unless

otherwise imicated,

3

‘‘Upon the appeal herein there was presented and

necessarily passed upon a question under the Consti-

tution of the United States, as follows: Respondent

contended that the refusal of the Commissiener of

Parks of the City of New York to issue a permit to

respondent to speak in a park under the jurisdiction

of the Commissioner of Parks constituted a violation

of the respondent's rights under the First and Four-

teenth Amendments to the Constitution of the United

States. The Court of Appeals held that there was such

a violation.”’

The jurisdiction of this Court is invoked under Rule

19 of the Supreme Court Rules and 28 U.S. C., §$1257 and

2101(c) on the ground that the Court of Appeals of the

State of New York has decided this case in a way prob-

ably not in accord with the applicable decisions of this

Court.

Question Presented for Review

Whether or not the refusal of the Commissioner of

Parks of the City of New York to issue a permit to re-

spondent to speak in a park under the jurisdiction of the

Commissioner of Parks constituted a violation of the re-

spondent’s rights under the First and Fourteenth Amend-

ments to the Constitution of the United States.

Provisions of the Constitution of the

United States in Point

Amendment I

‘(Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof: or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of griev-

ances,"

Amendment XIV

‘Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

Wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immuni-

ties of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

Within its jurisdiction the equal protection of the laws."

New York City Charter Provisions Involved

Chapter 21 of the New York City Charter Cealing with

the Department of Parks provides, so far as here relevant,

as follows:

‘*§$531. Department; commissioner.—a. There shall

be a department of parks the head of which shall be

the commissioner of parks who shall be appointed by

the mayor.

)

§532. Authority, duties and powers of the commis-

sioner.—The commissioner shall have the power aud it

shall be his duty:

1 To have charge of the management and be re-

sponsible for the care of all parks, parkways, squares

and public places. and of the sidewalks immediately

adjoining the same, except as otherwise provided by

law, of all playgrounds, playground fixtures and other

recreational property, except those within the juris-

diction of the department of education, and of such

other streets or avenues as are by law placed under

his jurisdiction; but such jurisdiction shall mot extend

to or include the buildings which are now or hereafter

may be ereeted in parks. squares or public places for

governmental purposes other than those of the depart-

ment of parks.

§534. Rules and regulations. —a. The commission-

er shall have power to establish and enforce rules and

regulations for the government and protection of pub-

he parks and of all property under the charge or

control of the commissioner, which rules and regula-

tions so far as practicable shall be uniform in all

boroughs and shall have the foree and effect of law.

b. Any violation of the rules or regulations of the

commissioner shall be triable by a city magistrate and

punishable by not more than thirty days* imprisen-

ment, or by a fine of not more than fifty dollars, or by

both."’

Park Department Regulations Involved

The Rules of the New York City Department of Parks,

§21-a, provide as follows:

‘*Section 21-a Meetings, ete.

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 deseription; in any park or upon any park-

street exeept by permit.

2. Upon application such permit will be issued un-

less—(a) The use for which the permit is sought is of

a private or commervial nature, or (b) The location

seleeted is not suitable beeause the area is specially

landscaped and planted with botanical, flower, shrub

or tree exhibits, or (¢) The location seleeted is not

suitable beeause it is one of the specialized park use

areas such as zoos, skating rinks, swimming pools,

recreational, ete. 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.’’

-_

.

mn

Manner in Which Federal Question Sought to be

Reviewed Was First Raised

The federal question now sought to be reviewed was

raised in the pleadings in the court of first instance, Spe-

cial Term of the Supreme Court of the State of New York.

The respondent's petition therein asserted that the denial

of a permit to speak in the park under the jurisdiction of

the Commissioner of Parks of the City of New York con-

stituted a violation of his constitutional rights under the

First and Fourteenth Amendments to the United States

Constitution (30-33). That contention was rejected in the

court of first instance (13-17, 247-251).

The respondent appealed to the Appellate Division,

First Department, and raised the same federal question

in his brief in that Court. The Appellate Division, by a

divided court, reversed the order of Special Term, Supreme

Court, and sustained the respondent's contention that his

constitutional rights had been violated by the refusal te

grant him a permit to speak in the parks, and remitted the

matter to the petitioner to proceed in accordance with the

majority opinion of the Court (265-270, 274-330).

The petitioner appealed to the Court of Appeals of the

State of New York. The same federal question was raised

in the petitioner’s brief im the Court of Appeals.- The

Court of Appeals unanimously affirmed without opinion

the order of the Appellate Division. Thereafter the Court

of Appeals granted a motion to amend the remittitur so as

to inelude therein a recital that there was presented and

necessarily passed upon the federal question raised) by

the parties, supra, p. 3.

The Facts

(1)

The petition served on August 11, 1960, alleges that the

petitioner® is a citizen of the United States and of Virginia

and is president of the American Nazi Party, an unincor-

porated association (23-24).

On May 17, 1960, petitioner, on behalf of the American

Nazi Party, applied to the Department of Parks for a

permit to speak in Union Square on July 4, 1960, from 3

p.m. to 5 p.m. on that day (27). A copy of the application

is annexed to the petition (34-41).

On June 22, 1960, the Park Commissioner wrote denying

the application for a permit. The letter of denial did not

state the reasons therefor (29, 43-45). However, the peti-

tion alleges, on June 22, 1960, the Mayor announced that

the permit was being denied on the ground that the peti-

tioner’s expression of his views in a speech would lead

to public disorder (29). (The full text of the Mayor’s

statement is attached to the answer as Respondent’s Ex-

hibit 1 [fols. 61-63] and is quoted in part infra, pp. 9-10).

The petition concludes with assert*ons that the denial of

a permit to speak to the petitioner constituted a violation of

his constitutional rights under the First and Fourteenth

Amendments to the United States Constitution and the

Constitution of the State of New York and constituted

an invalid prior restraint (30-33).

*In the recital of facts and the proceedings below the parties

are referred to by their designations in the Courts below, i.e., the re-

spondent herein as petitioner and the petitioner herein as respondent.

(2)

The answer denies the conclusory allegations of the

petition and sets forth several affirmative defenses (46-59).

The first affirmative defense recites that the American

Nazi Party is a subversive organization advoeating the

overthrow of constitutional government in the United

States by foree and violence in violation of the Penal

Law of the State of New York (50).

The second defense alleges the petitioner’s meeting was

designed to further the aims of the Ameriean Nazi Party,

one aim of which is the perpetration of racial genocide upon

persons of Jewish ancestry. Publie property may not be

used to urge such a practice, which is contrary to law

(50-51).

The third defense alleges that the statement at a public

meeting of the aims of the American Nazi Party wonld have

the effect of inching ordinary prudent persons to acts of

violence and disorder, While the Police Department contd

quell sueh riots and disorder, it conld not prevent. their

occurrence in the first instanee (52-53

(3)

Respondent’s Exhibit Fo annexed to the answer, is a

statement by the Mayor as to the reasons for the denial

of a permit to petitioner to speak. It reads in part as

follows (61-63):

“A man named George Roekwell of Washington,

D.C. has applied for a permit to speak in Union Square

on July 4th. Information supplied to me by qualified

sources shows clearly that Mr. Rockwell's intent. is

to incite a riot by preaching, in a city where the people

of all races live peacefully together, a philosophy of

race hatred, and extermination, hy violence. Left to

10

their own devices, the people of this city will stone

Rockwell out of town. There is not a decent respon-

sible citizen in the city who would follow him in his

preachings. There are millions who have friends and

relatives whe died because of this type of race hatred,

either as unarmed victims, or as soldiers fighting for

freedom.

‘We have in this city the largest, and I believe the

best, police foree of any municipality. It can QueELL

any riot. But no police force in the world can stop a

riot from starting. In this case, every fact we have

shows that Rockwell’s presence as a preacher of race

hatred will cause a riot the police will have to quell.’’

Respondent's Exhibits C-H inclusive, annexed to the

answer, are statements issued on behalf of the petitioner

or the American Nazi Party (124228). These exhibits and

the recital of events which took place when the petitioner

spoke in Washington, D. (., and when he appeared in court

in connection with the present application, as set forth in

the affidavit of the Park Commissioner, fully justify the

Mayor's conclusion that Reckwell’s presence as a preacher

of race hatred will cause a riot.

From the numerous examples in the exhibits, we need

refer to only two of the more lurid instances of race hatred

and advocacy of genocide contained therein, which are

among the half-dozen instances recited in the affidavit of the

Commissioner of Parks submitted in opposition to peti-

tioner’s application (64-102). Thus the Commissioner in

summarizing the contents of Respondent’s Exhibit F,

stated (82-86) :

‘‘In a letter, copy of which is attached hereto,

marked Respondent’s Exhibit ‘F’, obviously intended

for his fanatical cohorts addressed as ‘Fellow White

American’, the petitioner advocates as the only cure for

‘Jewtis,’ ‘old Doctor Adolf’s Gas-Cure’ (1st page,

11

dth par.); charges the Jewish people with ‘killing our

White Race with their sneaking ‘tbrothe rhood** propa-

ganda and their agyvressive manipulation of the ignor-

ant blacks into a mass assault on the White Man’,

(Ist page, par. 7): maintains that the Jewish people

‘have Stolen and Corrupted Your Own Children with

their Jew T.V.. their Jew-ridden schools, and the

filthy Jew Hterature vour teen-agers can buy in any

drugstore’ (2nd page, 2nd par.): charges that) ‘the

Jews have ridden roughshod over one defense effort

after another® (2nd page, 8rd par.) and then continues

(2nd page, 4th and Sth pars.):

‘But whenever somebody, realizing this, has tim-

idly svevested trving Old Doe Hitler and his Gas

eure, the ery has always gone up, ‘* Yes, but that

medieine is so terrible tasting, and has been made

to smell so bad that nobody will even Jook at itt

‘Well, one vear ago, we decided we had heard

enoneh oof that tthe omedieme-is-too awful!"

THe Diskase Ts Worse! The disease is about to

prove Faran! And if eur Race and onr previens

American Repunilie are Dying. with not ao seu!

doing anything but prescribing the same old pretty:

colored aspiring, then the PHleun with the taste and

sme) of the medicine. and the Hen. with the squawks

of the shortsighted vietims whe think they would

rather perish th oo take the medieme! "Phe medtemne

Vigier not savens. but the disease Sereny Winn Kaa

Us.ounless we find a new remedy. Whe resalred te

calloan Old Dov Adolf and try out bis patent qas-

chamber to relieve the acute mflamation of Jews

which is killa us. erence have te hold the noses

of the unwilling patients.” (talies mine.)

Continuing the description of Respondents Exhibit) F.

the Commissioner noted (86):

12

‘In paragraph 4 on page 3 there is again urged

the extermination of ‘the swarms of Jewish traitors

in our gas chambers’; the use of ‘radical fighting tae-

tics’ is advocated, and finally in the last paragraph the

petitioner seeks financial help for aid in the ‘Fought

For The Power To Kill The Jew Traitors.’ (Itahes

mine.) **

And as to Respondent's Exhibit G, the Commissioner

points out (86-87):

The petitioner seeks to justify his advocacy of the

gas chamber for Jews in his tract entitled ‘Trooper's

Manual of the Facets, Doctrines and the Ideas, of the

American Nazi Party,’ a copy of which is attached

hereto and marked Respondent's Exhibit *G*. In

the first paragraph of page 1, it is stated:

‘We openly plan to put hundreds of thousands

of Jews who are committing the capital offense of

Treason in the Gas Chambers, exactly as the Rosen-

heres were executed, not because they were Jews,—

bat because they were traitors! This is all that Hitler

did, as the suppressed Gestapo records show.’ **

The Commissioner's affidavit further pointed out that

the petitioner's advocacy of gas chambers for Jews is well

known as evidenced by a news clipping of the New York

Journal-American of June 17, 1960, which contains a report

of a telephone conversation with the petitioner (Respond-

ent’s Exhibit [, 229-239),

The Commissioner's affidavit also refers to various in-

stances of the proclivity of the petitioner to ineite violence.

The circumstances as to this were confirmed by the Cor-

poration Counsel from official poliee records submitted in

connection with petitioner's arrests (92-98),

13

Thus on July 3, 1960, petitioner conducted a mass meet-

ing in a park in Washington, D. C., before a crowd of

approximately 350 persons. The meeting began at 2 p.m

The petitioner made derogatory remarks about the Jews

such as ‘All right, Jews, go ahead and = seream’*’ and

‘Scream, vou dirty Jews.”?) Shouting between the speaker

and the audience continued for about an hour and fifteen

minutes during which time three arrests were made by the

police for disorderly conduct based on fighting. .At approxi-

mately 3:15 p.m. the crowd surged into the enclosure

guarded by petitioner’s Storm Troopers and fist fighting

became general. The intervention of ten park policemen,

including two mounted policemen, Was insufficient to restore

order and additional park policemen were called in’ by

radio, The petitioner and cleven of his Troopers were

arrested and charged with disorderly conduct (03-95).

A similar incident oceurred at a rally conducted by peti-

tioner in another park im Washington, D.C. on July 24,

190, About ten park policemen and fifteen or twenty

plainclothes officers of the Metropolitan Police Department

were present. The petitioner’s speech met with consid-

erable heckling from the andience. After the meeting had

gone on for about forty minutes, the petitioner ordered his

Troopers to go into the audience and confront the heeklers.

Several fights then started. At this point, the petitioner

was ordered to stop his speech and he and his Troopers

were arrested for acting In such a manner as to provoke

disorder, fights, and a general breach of the penee (96-48),

The charges against the petitioner arising out of the

two Washington incidents were undetermined at the time

of the Commissioner's affidavit (99). (We have sinee been

advised that on August 30, 1960, petitioner was convicted

in the Municipal Court of the District of Columbia) on

two counts of disorderly conduct arising out of these

incidents and was sentenced to $100 or 30 days on each

eount, to run concurrently. He was released on a $500

bond pending appeal. On July 11, 1961, the conviction was

14

affirmed by the Municipal Court of Appeals for the District

of Columbia. A further appeal is pending in the Court of

Appeals for the District of Columbia.)

The events that followed the appearance of the peti-

tioner in court in connection with the present proceeding

are thus described in the Commissioner’s affidavit (89-92) :

‘‘Evidence that violence is inevitable upon the

public appearance of the petitioner with the con-

comitant opportunity by him to spew his venom is

found in the incident of June 22, 1960 in the rotunda of

the County Courthouse in New York County on the

occasion when there was before Special Term, Part I,

of this Court an application to restrain me from issuing

a permit to the petitioner. On information and belief,

during a recess in the prgceedings, the petitioner was

interviewed by a battery“of television, radio and news-

papermen. In response te-one inquiry petitioner is

alleged to have stated that he ‘honestly believe that

80% of the Jews in New York City are communists and

should be exterminated by gas chambers as Hitler

did in Germany.’ This remark was sufficient to set off

bedlam, prompting shoving and a surge of the crowd

toward petitioner with shouts of ‘Kill him’ ‘Get rid

of him,’ and ‘Throw him out.’ Petitioner was immedi-

ately surrounded by a horde of court attendants who

escorted him to safety to another part of the build-

ing. Police reserves were summoned from _ head-

quarters and the petitioner was removed from the

courthouse under police protection. Attached hereto

and marked Respondent’s Exhibit ‘J’ is a news-

paper item taken from the Herald Tribune of June 23,

1960 describing the incident. Reference is herein

made to a tape recording of the incident in the rotunda

of the Courthouse which, with the Court’s permission,

will be played back upon the hearing of this applica-

tion.’’

1d

Mayor Robert F. Wagner also submitted an affidavit in

opposition to the petitioner’s motion (103-111). The affi-

davit stated in substance that the Park Commissioner's

denial of the petitioner's application for a public meeting

had followed a determination by the Mayor that public

safety and the preservation of law and order required such

rejection.

The Mayor’s affidavit pointed out that the overwhelm-

ing evidence indicated that petitioner's course of inflam-

matory conduct would inevitably lead to the ase of language

calculated to incite violence (110). And, as stated by the

Mayor (110):

‘On the basis of this information if was then con-

cluded that a publie speech by petitioner on the subjects

of Nazism, racial prejudice, intoleranee and genocide

constitutes a clear and present danger of a serious sub-

stantive evil rising far above mere public ineonveni-

enee, annoyance or unrest.’’

There cireumstances impelled the Mayor to exereise the

powers vested in him by the Charter in order to guard

against riots, disorder and acts of violenee (111).

The Decisions Below

(1)

Mr. Justice Epsrem sitting at Special Term, Supreme

Court, New York County denied the petition with a brief

opinion (247-251). The Court stated that there was no

obligation to loose self-confessed advocates of violence

upon a community. The constitutional guarantees of free

speech were held not to encompass an invitation to public

disorder and violence.

16

(2)

(a)

The majority opinion in the Appellate Division held

that the petitioner was entitled to a permit to speak in

Unien Square Park and that the Commissioner's refusal,

to grant such a permit Was an unconstitutional exercise of

power (274-330). The opinion referred to numerous cases

dealing with the right to speak and stated that the instant

case was close to Kunz v. New York, 340 U. S. 290 (1951),

where the Supreme Court had held unconstitutional an

ordinance which required the issuance of a permit in order

to hold a meeting for religious purposes in any street. The

conclusion drawn from Avunz and other eases cited in the

opinion was that the petitioner’s right to speak in the park

could not be abrogated without viclating his constitutional

rights and was subject only to the rules of the Park De-

partment with reference to the time and place of such

speech. The opinion pointed out that such rules required

that the Park Commissioner designate an alternative time

or place for speaking in the park if the one requested by

the petitioner was not suitable and that the Commissioner

had failed to designate any such alternative with respect

to petitioner's application.

The majority stated that, in view of the public im-

portance of the question presented, the Court should not

hold the proceeding to be moot. Accordingly, the order of

Special Term should be reversed and the matter emanded

to the Commissioner to allow petitioner to file a new

application for a permit and for the Commissioner to

proveed thereon in accordance with the opinion.

17

(b)

Mr. Justice EaGer dissented from the majority. The

dissenting opinion (346-399) discussed at some length the

facts relating to the reasons for the refusal of a permit to

petitioner, partiewlariy as set forth in the Mayor's affidavit

reciting the petitioner’s persistent inflammatory conduct

and his failure to diselaim his intent to pursue the same

course. The opinion held that the refusal to issue a permit

under the circumstances herein was justified, and referred

mter alia to Feiner vy. People of State of New York, 340

U.S. 315 (1951); Kingsley Books ve Brown, 354 U.S. 486

(1957); and Times Film Corp. ve Chicago, 365 U.S. 48

(1961), rehearing denied id. S56.

(c)

The Court of Appeals unanimously affirmed without

opinion the order of the Appellate Division.

Argument Relied on for Allowance of Writ

The refusal of the Commissioner of Parks to issue

a permit to respondent to speak in a park did not

constitute a violation of respondent’s constitutional

rights. The respondent’s utterances and course of

conduct created a clear and present danger justifying

the denial of a permit.

(1)

The instant application presents for review the question

as to what circumstances warrant a refusal to permit a

person to speak in a public place despite the constitutional

cuarantees of free speech. We submit that the clear and

present danger of riot and disorder involved in any speech

by the respondent justified the refusal to grant him a

permit.

18

The respondent's contention has been that a permit

eould not be refused to him because of his past utterances

vor conduet. That view was adopted by the majority of the

Appellate Division and by the Court of Appeals.

In examining the validity of the respective contentions

of the parties, we turn to cases in which this Court has

expressed its views as to the limitations upon freedom

of speech. While cach of these cases presents a factual

pattern differing from that in the instant case, the opinions

therein clearly indicate that the right of free speech is not

an absolute one and that there are cireumstaneces in which

the denial of the right to speak does not constitute an in-

fringment of a constitutional right.

Kongsberg v. State Bar of California, 366 U.S. 36

(1961), is among the most recent decisions of this Court

dealing with the freedoms guaranteed by the First and

Fourteenth Amendments. The majority expressed its view

as follows, per Hannan, J. (pp. 49-51) :

‘At the outset we reject the view that freedom of

speech and association (ViAACP. ve Alabama, 357

U.S. 49, 460), as protected by the First aid Four-

teenth Amendments are ‘absolutes,’ not only in. the

undoubted sense that where the constitutional protec-

tion exists it must prevail, but also in the sense that

the scope of that protectiom must be gathered solely

from a literal reading of the First Amendment.

Throughont its history this Court has consistently

recognized at least two ways in which constitutienally

protected freedom of speech is narrower than an

unlimited license to talk. On the one hand, certain

forms of speech, or speech in certain contexts, has

been considered outside the seope of constitutional pro-

tection. See, e.g.. Schenck ve United States, 249 U.S.

47: Chaplinsky v. New Hampshire, 315 U.S. 568; Den-

19

nis v. United States, 341 U.S. 494; Beauharnats v. Il-

linots. 343 U.S. 250; Yates ve United States, 354 U.S.

2O8; Roth v. United States, 854 U.S. 476. On the other

hand, general regulatory statutes, not intended to

control the content of speech Sut incidentally limiting

its unfettered exercise, have pot been regarded as the

type of Jaw the First or Fourteenth Amendmeat for-

bade Congress or the States to pass, when they have

been found justified by subordinating valid) govern-

mental interests, a prerequisite to constitutionality

which has necessarily involved a weighing of the gov-

ernmental interest: involved. See, c.g. Schneider v.

State, 308 U.S. 147, 161; Cor v. New Hampshire, 312

U.S. 569; Prince ve Massachuselts, 821 U.S. 158; Ao-

vacs Vv. Cooper, 3836 U.S. 77; American Communica-

tions Assn. v. Dowds, 339 U.S. 382; Breard vy. Ales-

andria, 341 U.S. 622.”

Times Film Corp. ve. Chicago, 365 U.S. 483 (1961), re-

hearing denied w/. 856, is another recent decision dealing

with the free speech and free press guarantees of the First

and Fourteenth Amendments. There the petitioner chal-

lenged the constitutionality of a Chieago ordinance which

required the submission of all motion pictures for exam-

ination prior to their public exhibition. In rejeeting the

petitioner’s contention that the ordinance was invalid as a

previous restraint on freedom of speech, the majority opin-

ion stated, per CLark, J. (365 U.S. at pp. 40-48);

“Tt has never been held that Itberty of speech is abso-

lute. Nor has it been snegested that all previous re-

straints on speech are invalid. On the contrary, in

Near v. Minnesota, 283 U.S. 697, 715-716 (1931), Chief

Justice Hughes in discussing the classie legal state-

ments concerning the immunity of the press from

censorship, observed that the principle forbidding pre-

vious restraint ‘is stated too broadly, if every such

20

restraint is deemed to be prohibited * * * [T]he pro-

tection even as to previous restraint is not absolutely

unlimited. But the limitation has been recognized only

in exceptional cases.’ These included, the Chief Jus-

tice found, utteranees creating ‘a hindrance’ to the

Government’s war effort, and ‘actual obstruction to

its recruiting service or the publication of the sailing

dates of transports or the number and location of

troops.’ In addition, the Court said that ‘the primary

requirements of deceney may be enforeed against

obscene publieations’ and the ‘security of the com-

munity life may be protected against incitements to

acts of vivience and the overthrow by foree of orderly

government.’ * * * Thereafter, as we have mentioned,

in Joseph Burstyn, Tne, v. Wilson, supra, [843 U.S.

495 (1952)] we found motion pictures to be within the

guarantees of the First and Fourteenth Amendments,

but we added that this was ‘not the end of our prob-

lem. It does not follow that the Constitution requires

abselute freedom to exhibit every motion picture of

every kind at all times and all places.’ ”’

In Kingsley Books, Inc. v. Brown, 3854 U.S. 486 (1957),

this Court upheld the constitutionality of a Newt York

statute (Penal Law, § 22-4) which inter alia permitted an

injunction against the sale or distribution of obseene books

or writings. In rejecting the contention that the statute

constituted ar illegal prior restraint and violated the con-

stitutional rights of the defendants, Mr. Justice FRank-

FURTER, Writing the ma): .ity opinion, stated (354 U.S. at

pp. 441-442) :

‘*The judicial angle of vision in testing the validity

of a statute like §22-a is the operation and effeet of

the statute in substanee.’ Id. [Near v. Minnesota, 283

U.S. 697], at 713. The phrase ‘prior restraint’ is not a

self-wielding sword. Nor ean it serve as a talismanic

21

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

liherties: *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 vield to more particularistie anal-

ysis.” The Supreme Court and Civil Liberties, 4 Vand.

l.. Rev. 333, 339.""

If the pragmatic test referred to in AKinasley is applied

to the faets here, it is not difficult to visualize the result

of respondent’s speaking in oa public park. As already

pointed out, swpra. p. 13, respondent's speeches in) Wash-

ington, D. (., caused riots and disorder on two separate

oceasions as did his appearance in the New York Su-

preme Court when he was interviewed by reporters. We

do not believe that the Commissioner and the Mayor were

required to shut their eves to these circumstances and issue

a permit to speak ina public park regardless of the dangers

which would be created. As th Mayor pointed out, the

police force could quell a riot but it could not stop it from

starting (61-65). This was borne out by the Washington

experience Where riots started despite the presence of large

numbers of policemen on the two occasions when petitioner

speke (92-98).

The Court at Special Term commented that no cited

ease presented a parallel to the instant one (250).

This observation was correet and serves to illustrate

the extremely provocative nature of respondent's state-

ments. We have summarized some of respondent's utter-

ances, supra, pp. 10-12, and need not dwell further upon

them. We direct attention to them, however, as clear

proof of the dangers caused by respondent's public

speeches. It would be bevond human experience to expect

that any group of people would long fail to react with

violence to svggestions that they or their fellow citizens be

exterminated in gas chambers.

In Schenck v. United States, 249 U.S. 47 (1919), this

Court affirmed the conviction of the defendant under the

Espionage Act (40 Stat. 217) on the ground that he had

conspired to circulate documents among men called for

military service which were calculated to cause insubordi-

nation and obstruction. In rejecting the contention that

prohibiting the cireularization of the document in question

constituted an invalid prior restraint, Mr. Justice Houmes,

speaking for a unanimous Court, said (249 U. S. at pp.

51-52) :

‘*But it is said, suppose that that was the tendeney

of this cireular, it is protected by the First Amend-

ment to the Constitution. Two of the strongest expres-

sions are said to be quoted respectively from = well-

known publie men. It well may be that the prohibition

of laws abridging the freedom of speech is not con-

fined to previous restraints, although to prevent them

may have been the main purpose, as intimated fn Pat-

terson v. Colorado, 205 U.S. 454, 462. We admit that

in many places and in ordinary times the defendants

in saving all that was said in the cireular would have

heen within their constitutional rights. But the char-

acter of every act depends upon the circumstances in

which it is done. cltkens v. Wisconsin, 195 U.S. 194,

205, 206. The most stringent protection of free speech

would not protect a man in falsely shouting fire in a

theatre and causing a panic. Tt does not eren protect a

man from an injunction against uttering words that

may have all the effect of force. Gompers v. Bucks

Stove & Range Co., 221 U. S. 418, 489. The question

23

in every case is whether the words used are used in

such circumstances and are of such a nature as to

create a clear and present danger that they will bring

about the substantive evils that Congress has a right

to prevent. It is a question of proximity and degree.”’

(Italics ours.)

Mr. Justice Hotes’ statement that constitutional guar-

antees do not ‘tprotect a man from an injunction against

uttering words that may have all the effeet of foree’’ is

particularly apt here. So far as the respondent’s past

words having the effeet of foree, it is difficult to visualize a

clearer case than the instant one. As Mavor Wagner

pointed out, the respondent has never disclaimed his inten-

tion to make similar pronouncements and in fact has left

no doubt that he intends to do so if given the opportunity

(111).

In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942),

and Board of Education v. Barnette, 319 U.S. 624 (1948),

this Court indicated that under certain conditions the pre-

vention of speech did not constitute a violation of eon-

stitutional rights. In Chaplinsky, Mr. Justice Murpny

stated (315 U.S. at pp. 571-572) :

‘Allowing the broadest scope to the language and

purpose of the Fourteenth Amendment, it is) well

understood that the right of free speech is not absolyte

at all times and under all circumstances. There are

certain well-defined and narrowly limited classes of

speech, the prerention and punishment of which have

never been thought to raise any Constitutional prob-

lem. These inelude the lewd and obscene, the pro-

fane, the libelous, and the insulting or ‘fighting’ words

—those which by their very utterance inflict injurv or

tend to incite an immediate breach of the peace. It has

been well observed that such utterances are no essen-

tial part of any exposition of ideas, and are of such

24

slight social value as a step to truth that any benefit

that may be derived from them is clearly outweighed

by the social interest in order and morality. ‘Resort

to epithets or personal abuse is not in any proper

sense communieation of information or opinion safe-

guarded by the Constitution, and its punishment as

a criminal act would raise no question under that

instrument.’ Cantwell vy. Connecticut, 310 U.S. 296,

309-310."" (Italies ours.)

To the same effect is the statement by Mr. Justice

Jackson in Barnette (319 U.S. at p. 633):

“Tt ix now a commonplace that censorship or suppres-

sion of expression of opinion is telerated by our Cen-

stitution only when the expression presents a clear and

present danger of action of a kind the State is em-

powered to prevent and punish."

Gitlow v. New York, 268 U. S. 652 (1925) contains a

comment which is pertinent here. There this Court, in

sustaiming a conviction for eriminal anarchy under the New

York statute (1. 1909, eh. 88), said (at p. 669):

“That utterances inciting to the overthrow of organized

government by unlawful means, present a sufficient

danger of substantive evil to bring their punishment

within the range of legislative discretion, is clear.

Such atterances, by their very nature, involve danger

te the publie peace and to the security of the State.

They threaten breaches of the peace and ultimate revo-

Intion. And the immediate danger is none the less real

and substantial, beeause the effeet of a given utter-

ance cannot be accurately foreseen, The State connot

reasonably be required to measure the danger from

crery such utterance in the nice balance of a jeweler’s

scale, A single revolutionary spark may kindle a fire

that, smouldering for a time, may burst into a sweep-

ing and destructive conflagration. It cannot be said

29

that the State is acting arbitrarily or unreasonably

When in the exercise of its judgment as to the meas-

ures hecessary to protect the public peace and safety,

it seeks to extinguish the spark without waiting until

it has enkindled the flame or blazed into the conflawra-

tion. Tt cannot re asonably he re quired ty defer thre

adoption of measures for its oun peace and safety

until the revolutionary utterances lead to actual dis-

turbance S of the public poder ar tmomtnent and hmniedi-

ate danger of its own destruction; but it mau, in the

ererctse of its judamen?, suppress the threatened

danger in its tnetplency” (italies ours.)

Even when the Court spoke out most strongly against

previous restraints, it Was careful to recognize that **The

security of the community lite may be protected against in-

citements to acts of Violence and the overthrow be foree of

orderly government.” ¢Near ve Minnesota, 282 UL S. 697,

16 [1981 J.)

In Giboney ve Rampire Storage Co. 336 US. 496 (1949),

Mr. Justice Buack. speaking for a unanimous court, held

at page 49S;

“Ty rarely has been sueeested that the constituy

tional freedom foe speceh and press extends its im-

munity to speceh or writing used as an integral part

of condnet in vielutiom of a valid) criminal statute,

We reject the contention now. Nothing that was sid

or heeled in any of the eises relied Oli hy appellants

calls for a ditferent holdime.

That the doctrines advocated by the respondent are

in Violation of the criminal liw of New Yerk State cannot

be donbted. The respondent ueges the killing of *shun-

dreds of thousands of Jews by use of the gas chamber

(Si). and we need not elaborate further npon his fulmina-

tions Which have already been deserihed. sapra, pp. O14.

26

(2)

Respondent relies heavily upon Aunz v. New York, 340

U.S. 290 (1951). However, that case is clearly distinguish-

able from the instant one.

Kunz was a criminal prosecution in which the defendant

was charged with violating a provision of the Administra-

tive Code of the City of New York (§435-7.0), which re-

quired a permit from the Police Commissioner in order to

hold a meeting for religious purposes in any street. This

Court struck down the seetion as an unwarrauted inter-

ference with the expression of religious views.

In the instant case there can be no question as to the

validity of ¢ 21-a of the Rules of the Park Department which

require a permit in order to hold a public meeting in the

parks. The validity of the then § 21, the predecessor of the

present (2l-a of the Park Department Rules, which was

sitnilar in its requirement as to a permit for the holding:

of a public meeting in the parks, was upheld in People +

Nahman, 298 N.Y. 95, 81 N. EB. 2d 86 (1948) and People

v. flass, 299-N. Y. 190, 86 N. B. 2d) 169 (1949), appeal dis-

missed for want of a substantial federal question, sub nom,

Hass vy. New York, 338 U.S. 808 (1949).

Cantwell vy. Connecticut, 310 U.S. 296 (1940) is similar

to Aunz in that it was a criminal conviction for violation

of a statute which required a permit in order to solicit

for any religious cause. The grounds for distinguishing

Kunz from the instant case ave also applicable to Cantwell.

No useful purpose would be served by analyzing in

detail each of the cases relied upon by respondent. We ean

have no quarrel with expressions to the effect that consti-

tutional rights are fundamental and must not be curtailed.

The question here is whether the respondent’s claimed ‘con-

as

stitutional mybdt entitles him to an unbridled license to

advocate Violeiee and precipitate disorder. For the reasons

set forth we do not belleve such leeway should be allowed.

(3)

The respondent urges that no standards have been set

forth to authorize the demial of a permit. As already point-

edoout, the question of the vonstitutionality of Seetion 21-a

of the Rules of the Park Department has been settled by the

decisions in People ve Nahman, supra, and People v. Mass,

supra. Accordingly, the respondent cannot now success-

fully urge that the section is unconstitutional,

The respondent's quarrel is not with the lack of a

standard in Section 2l-a but rather with the Park Commis-

sloner'’s refusal to issue a permit. Cf: Matter of Dr. Bloom,

Pie ntest, Tue. *%. Crate, SSR... SOS, 8S A. BP Cae,

reargument denied 260 N.Y. ATT, Psd N29 (1982), ap-

peal dismissed for want of a substantial federal question,

VSS TLS. O88 (1982). There the City Clerk was upheld in

his refusal todssue a sign permit to petitioner on the ground

that the peridit was a prelude to perpetration of am ileal

act by petitioner, Le. advertising dentistry. The illegal aet

to be performed here is as patent as the one imvelved in

Bloom, and the case tends to support the instant refusal to

issue a permit to respondent,

28

CONCLUSION

The petition for a writ of certiorari should be

granted.

August 31, 1961.

Respectfully submitted,

Leo A. LarKIN,

Corporation Counsel of

the City of New York,

Attorney for Petitioner.

of Counsel:

Seymour B. QUEL,

SauL Moskorr.

29

Appendix A

COURT OF APPEALS

STATE OF NEW YORK, Ss:

Pieas in the Court of Appeals, held at Court

of Appeals Hall, in the City of Albany, on

wthe Oh day of June in the year of our Lord

one thousand nine hundred and _ sixty-one,

before the Judges of said Court.

Witness,

The Hos. Crartes S. Desmonn,

Chief Judge, Presiding.

Raymonp J. Cannon, Clerk.

ReMIttitvur June 9, 1961

No. 139

———

In the Matter of

the Application of George L. Rockwell,

Respondent,

Vs,

Newbold Morris, as Commissioner of

Parks of the Citv of New York

Appellant,

For an order &e.

a

BE IT REMEMBERED, That on the 11th day of April in the

year of our Lord one thousand nine hundred and sixty-

30

Appendix A

one, Newbold Morris, as Commissioner of Parks of the

City of New York, the appellant—in this cause, came here

unto the Court of Appeals, by Charles H. Tenney, his attor-

ney—, and filed in the said Court a Notice of Appeal and

return thereto from the order of the Appellate Division

of the Supreme Court in and for the First Judicial Depart-

ment. And George L. Rockwell, the respondent—in said

cause, afterwards appeared in said Court of Appeals by

Emanuel Redfield, his attorney.

Which said Notice of Appeal and the return thereto,

filed as aforesaid, are hereunto annexed.

Wrerevpox, The said Court of Appeals having heard

this eause argued by Mr. Seymour B. Quel, of counsel

for the appellant—, and by Mr. Emanuel Redfield, of coun-

sel for the respondent, brief filed by amicus curiae, and

after due deliberation had thereon, did order and adjudge

taat the order of the Appellate Division of the Supreme

Conrt appealed from herein be and the same hereby is

affirmed, witnout costs.

And it was also further ordered, that the reeords afore-

sald, and the proceedings in this Court, be remitted to the

Supreme Court of the State of New York, there to be pro-

ceeded upon according to law.

THEREFORE, it is considered that the said order be af-

firmed, without costs, as aforesaid.

And hereupon, as well the Notice of Appeal and retarn

thereto aforesaid as the judgment of the Court of Appeals

aforesaid, by it given in the premises, are by the said Court

of Appeals remitted into the Supreme Court of the State

of New York before the Justices thereof, according to

31

Appendix A

the form of the statute in such case made and provided,

to be enforeed according to law, and which record now re-

mains in the said Supreme Court, before the Justices

thereof, Ke.

RAYMOND J. CANNON,

Clerk of the Court of Appeals of the

State of New York.

Courr oF APPEALS, CLERK'S OFFICE,

Albany, June 9, 1961.

I werepy CERTIFY, that the preceding record con-

tains a correet transeript of the proceedings

in said cause in the Court of Appeals, with the

papers originally filed therein, attached

thereto.

Rarmonp J. Cannon,

Clerk.

(Seal)

32

Appendix B

STATE OF NEW YORK.

Ix Courr of APPEALS

At a Court of Appeals for the State of New

York, held at Court of Appeals Hall in the

City of Albany on the seventh day of July

A. D. 1961.

Present,

Hon. Charles S. Desmond, Chief Judge, presiding.

Mo. No. 462

—_—eE ee

In the Matter of

the Application of George L. Rockwell,

Respondent,

Vs.

Newbold) Morris, as Commissioner of

Parks of the City of New York,

Appellant,

For an order &e.

ee A i

A motion to amend the remittitur in the above cause

having been heretofore made upon the part of. the appellant

herein and papers having been submitted thereon and due

deliberation having been thereupon had:

co

2

Appendir B

OrkpeRED, that the said motion be and the same hereby

ix granted. Return of the remittitur requested and when

returned it will be amended to read, as follows:

“Upon the appeal herein there was presented and

necessarily passed upon a question under the Consti-

tution of the United States, as follows: Respondent

eontended that the refusa: of the Commissioner of

Parks of the City or New York to issue a permit to

respondent to speak in-a park under the jurisdiction

of the Commissioner of Parks constituted a violation

of the respondent’s rights under the First and Four-

teenth Amendments to the Constitution of the Uiited

States. The Court ef Apoeals held that there was

such a violation.”’

Axp the Clerk of the Supreme Court, New York County,

is hereby requested to return said remittitur to this Court

for amendment accordingly.

A copy

GEARON WKinatpe un,

Deputy Clerk