Cox v. New Hampshire

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 right of the appellants. First, the U.S. Supreme Court stated that the sole issue to 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, holding public 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 is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances 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 that court'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 streets for parades or processions, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the 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 flat fee should be charged. The Court perceived no constitutional ground for denying to local governments flexibility in the adjustment of fees based upon the stated 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-discriminatory manner 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 apply because in each case the invalidated ordinance included either an element of censorship or prohibition of the dissemination of information that interfered with First Amendment activity. In this case, the only issue was the right to take part in a parade without a permit.