Feiner v. New York

With Feiner v. New York, the Supreme Court helped balance "clear and present danger" against free speech rights, in upholding Feiner's original misdemeanor conviction.

In our Constitution's First Amendment, a single phrase has caused more judicial hair-pulling and controversy than almost any other. The First Amendment reads in part that Congress can make no law, "abridging the freedom of speech." The U.S. Supreme Court has been involved with the Free Speech Clause more intently since the early 1920s. During this time, free speech issues and Court opinions have spread so far in different directions that it is impossible to define "free speech" exactly. No one phrase can sum up all of its meanings and ramifications.

It was about 6:30 on the evening of 8 March 1949 when Syracuse police officers received a call about an outside meeting on the corner of South McBride and Harrison. Two officers were sent to investigate. When the officers arrived, they found about 75 to 80 people listening to a college student, Irving Feiner.

The growing crowd filled the sidewalk and flowed into the street. Feiner was on the sidewalk, standing on a large wooden box. Using a loudspeaker system attached to his car, he was urging the audience to attend a meeting that evening in the Syracuse Hotel. His announcement was not limited to the time, place and whereabouts of this meeting. It included unsavory references to the American Legion, Syracuse's Mayor, and President Harry Truman, just to name a few.

When they arrived, the police officers did not interrupt Feiner. From across the street, they noticed that passing pedestrians had to walk in the street to maneuver past the crowd. In turn, this was causing traffic problems. When the police tried to get the crowd out of the street, some pushing, shoving and muttering emanated from the crowd. One of the officers went into a store and called the police station. Then both officers joined the crowd. They had no plan to arrest Feiner.

Several things happened. At this time Feiner was speaking in what has been described as a "loud, high-pitched voice." Witnesses got the impression that he was inciting the African Americans to rise up against the Caucasians and fight for their civil rights. Some of the people in the crowd became somewhat agitated about these remarks and passersby commented to the officers about their apparent lack of ability to handle the crowd. At least one person threatened violence against Feiner if there was no police action.

The crowd was demonstrating feelings for and against Feiner to such a degree that the police judged a fight might erupt momentarily. One of the officers asked Feiner to step off the box, not to arrest him, but to get him to disperse his listeners. Feiner paid no attention. After a minute or so, the officer insisted that Feiner stop talking. Still, Feiner ignored him.

Now, the crowd was closing in on this activity. The police told Feiner they were arresting him and ordered him off of his box. One officer reached up to help him off of the box. As Feiner got off the box, he used the microphone one final time to say that "the law has arrived, and I suppose they will take over now." The police charged Feiner with violating section 722 of the Penal Law of New York. Essentially, he was charged with disorderly conduct.

During the ensuing trial, some testimony agreed with the police officers, but some testimony did not. The trial judge considered all of the evidence and concluded that the police actions to prevent a breach of the peace were proper and dictated by the events. Two review courts agreed. All of the courts agreed that it seemed as though the officers acted as they did, not because they disagreed with Feiner, but out of their duty to preserve the peace. Indeed, Feiner had not been arrested for his speech, but the aftermath.

The case then went to the U.S. Supreme Court where Chief Justice Vinson's opinion stated that considering all of the circumstances, Feiner's constitutional rights had not been violated. In a 6-3 decision, the Court confirmed the lower courts' decisions that the police officers were not attempting to suppress Feiner's opinions, but were attempting to prevent an impending civil disturbance.

Justice Black dissented, making three points. First, he said, that according to the facts, the crowd behavior seemed as though it was normal, all things considered and the idea of an impending riot was "far-fetched." Second, Black said that even if the circumstances were as the officers described, they ought not have interfered with the speaker. Their first duty was to protect the speaker. Black said that, according to the evidence, there had been no attempt at all to protect Feiner. Third, Feiner's resistance to the officer was justified in that he was not required by law to stop speaking just because a police officer requests this. According to Black, Feiner was entitled to know why he was being silenced and why he should cease engaging in a legal activity. The testimony was clear that at no time did the officer explain his reasoning to Feiner. The strength of Black's convictions were summed up when he wrote, "I understand that people in authoritarian countries must obey arbitrary orders. I had hoped there was no such duty in the United States."