Cox v. New Hampshire

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 and peaceable assembly. Together these protect the right of U.S. citizens to peacefully gather and parade or demonstrate. In the early 1900s, as U.S. cities grew and increasing numbers of persons exercised these First Amendment rights in streets and parks, cities attempted to control the use of public areas through ordinances requiring permits or licenses. Many of these ordinances were vaguely 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 the Witnesses 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 a march in formation, and its advertising and informatory purpose did not make it otherwise . . . It is immaterial that its tactics were few and simple. It is enough that it proceeded in ordered and close file as a collective body of persons on the city streets." The state Supreme Court also concluded that because the statute prohibited only use of the streets by organized formations of 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 to include 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.