Cox v. New Hampshire

Appellant
Cox, et al.
Appellee
State of New Hampshire
Appellant's Claim
That a state statute prohibiting a parade or procession upon a public streetwithout a special license violated the Fourteenth Amendment by interfering with appellant's First Amendment rights of free speech, press, worship and assembly and by vesting unreasonable and arbitrary power in the licensing authority.
Chief Lawyers for Appellant
Hayden Covington, Joseph F. Rutherford
Chief Lawyer for Appellee
Frank R. Kenison
Justices for the Court
Charles Evans Hughes (writing for the Court), Harlan Fiske Stone, Owen Josephus Roberts, Hugo Lafayette Black, Stanley Forman Reed, Felix Frankfurter, William O. Douglas, Frank Murphy
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
31 March 1941
Decision
Requiring a permit for a parade or procession upon a public street was a proper exercise of the state's authority and did not violate the appellants' constitutional rights.
Significance
The decision established the right of local governments to require a permit to conduct a parade or procession upon a public street. However, permit decisions had to be made according to uniform, nondiscriminatory standards based upon public convenience and safety to satisfy the Fourteenth Amendment. Validating permit requirements for parades meant that local governments received advance notice of parades allowing them the opportunity to plan policing activities to minimize disorder and inconvenience to passersby.
The First Amendment to the U.S. Constitution guarantees freedom of speech andpeaceable assembly. Together these protect the right of U.S. citizens to peacefully gather and parade or demonstrate. In the early 1900s, as U.S. citiesgrew and increasing numbers of persons exercised these First Amendment rightsin streets and parks, cities attempted to control the use of public areas through ordinances requiring permits or licenses. Many of these ordinances werevaguely written and failed to specify criteria for obtaining a permit.
In 1941, 68 Jehovah's Witnesses were convicted in a New Hampshire municipal court for violating a state statute which prohibited parades and processions on public streets without a license. The facts were undisputed that the Witnesses had engaged in an "information march" on the sidewalks in the city's business district while carrying placards and handing out leaflets to passersby.During the march, groups of 15 to 20 people marched in single file down sidewalks in the district, interfering with normal foot travel. Upon appeal to a New Hampshire Superior Court, a trial de novo was held, in which the appellate court heard the case as if the lower court trial never occurred. In the trial de novo, a jury again found the Witnesses guilty. Five of theWitnesses appealed to the New Hampshire Supreme Court.
In the state supreme court, appellants claimed that the statute was invalid under the Fourteenth Amendment of the U.S. Constitution because it deprived them of their First Amendment rights of freedom of worship, freedom of speech and press, and freedom of assembly, vested unreasonable and unlimited arbitrary and discriminatory powers in the licensing authority, and was vague and indefinite. The state supreme court overruled these contentions and affirmed that the appellants were in fact taking part in a parade or procession on the public streets, despite their claim that they were disseminating religious literature as a form of worship. According to the state supreme court, "It was amarch in formation, and its advertising and informatory purpose did not makeit otherwise . . . It is immaterial that its tactics were few and simple. Itis enough that it proceeded in ordered and close file as a collective body ofpersons on the city streets." The state Supreme Court also concluded that because the statute prohibited only use of the streets by organized formationsof persons, and not distribution of information, speech, or use of the streets by unorganized groups of people, any interference with liberty of speech and writing was slight.
As to the claim that the licensing authority's power was unreasonable and unlimited, the state Supreme Court replied that the statute mandated that the authority's discretion be exercised with "uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination, with reference to the convenience of public use of the highways." The state Supreme Court construed the statute toinclude this mandate, even though the language itself arguably set no specific limits. The state Supreme Court affirmed the convictions, and appellants took their case to the U.S. Supreme Court.
Parade Permit Constitutional
In a unanimous decision, the U.S. Supreme Court held that the statute as construed by the state Supreme Court did not infringe on any constitutional rightof the appellants. First, the U.S. Supreme Court stated that the sole issueto be decided was the question of the statute's validity as applied to the appellants' conduct in taking part in a parade or procession on the public streets without a permit. The Court would not address issues of the statute's validity as applied to distribution of literature, carrying of placards, holdingpublic meetings, or expressing religious beliefs. The Court also concluded that there was no ground for challenging the state court's ruling that the appellants had in fact engaged in a parade or procession.
Turning to the sole issue before it, the Court began by stating that a municipality's authority "to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend." The Court said further, " . . . Where a restriction of the use of highways in that relation isdesigned to promote the public convenience in the interest of all, it cannotbe disregarded by the attempted exercise of some civil right which in othercircumstances would be entitled to protection." The Court then concluded by restating the question to be decided,

[since] regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.

Looking to the opinion of the New Hampshire Supreme Court and relying on thatcourt's limiting construction of the state statute, the U.S. Supreme Court found it impossible to say that the limited authority conferred by the licensing provisions of the statute in question, as thus construed by the state court, contravened any constitutional right. The Court concluded that, since a municipality undoubtedly has authority to control the use of its public streetsfor parades or processions, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation tothe other proper uses of the streets.
As to fact that under the statute the license fee ranged from $300 to a nominal amount, the Supreme Court rejected the appellants' contention that a flatfee should be charged. The Court perceived no constitutional ground for denying to local governments flexibility in the adjustment of fees based upon thestated purpose of the parade or procession. In the Court's opinion, this flexibility would tend to conserve rather than impair the liberty sought.
The Court also concluded that there was no evidence in this case that the statute had been administered otherwise than in the fair and non-discriminatorymanner that the state court had construed it to require. The Court distinguished previous decisions of the U.S. Supreme Court invalidating municipal ordinances regulating expressive activities. Those previous rulings did not applybecause in each case the invalidated ordinance included either an element ofcensorship or prohibition of the dissemination of information that interferedwith First Amendment activity. In this case, the only issue was the right totake part in a parade without a permit.
Impact
Prior to the decision in Cox, the U.S. Supreme Court had struck down,under the First and Fourteenth Amendments, numerous ordinances imposing permit requirements on expressive activity in public places, such as streets and parks, because the ordinances gave government officials uncontrolled discretion whether to issue the permits. After Cox, local governments were allowed to regulate competing uses of public forums by using a permit scheme to impose reasonable time, place, and manner restrictions on those wishing to hold a march, parade, or rally. In addition, Cox allowed local governments to give a different degree of protection under the First and Fourteenth Amendments to those who communicated ideas by patrolling, marching, and picketing on streets and highways and those who communicated ideas by pure speech. Permit systems were deemed constitutionally valid so long as the discretion ofthe issuing official was limited to questions of times, places, and manners,and was not based on the content of the message. The reasonable time, place and manner restriction of Cox was subsequently applied to governments'attempts to regulate a wide range of religious, social, economic, and political activity.
Related Cases

• Davis v. Massachusetts, 167 U.S. 43 (1897).
  
• Hague v. Committiee for Industrial Organization, 307 U.S. 496 (1939).
  
• Poulos v. New Hampshire, 345 U.S. 395 (1953).
  
• Cox v. Louisiana, 379 U.S. 536 (1965).
  
• Walker v. City of Birmingham, 388 U.S. 307 (1967).
  
• Lehman v. City of Shaker Heights, 418 U.S. 298 (1974).
  
• Heffron v. Int'l Soc. for Krishna Consc., 452 U.S. 640 (1981).
  
• Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992).