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Lovell v. City of Griffin - Ordinance Is Unconstitutional Prior Restraint

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In an opinion authored by Chief Justice Hughes, the Supreme Court ruled that the ordinance was unconstitutional on its face and reversed Lovell's conviction. By ruling that the ordinance was unconstitutional "on its face," the Court limited its analysis to the language used in the ordinance, i.e., the "face" of the ordinance, and did not consider how the ordinance was applied. The Court ruled that, because the ordinance prohibited distribution of any kind of literature in any manner, at any place, and at any time without a permit from the city manager, the ordinance was an unconstitutional prior restraint in violation of the First Amendment. Previous Supreme Court decisions had upheld the power of local authorities to vest in a single official the discretion to issue permits or licenses, including a permit to speak in a public commons, Davis v. Massachusetts 1897. This decision placed some limits on this power.

Before looking at the ordinance itself, the Supreme Court set forth two legal principles: (1) that freedom of speech and freedom of the press, protected under the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action; and, (2) that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the Fourteenth Amendment.

The Supreme Court next reviewed the language of the ordinance and concluded that, "The ordinance in its broad sweep prohibits the distribution of `circulars, handbooks, advertising, or literature of any kind.' It manifestly applies to pamphlets, magazines, and periodicals . . . The ordinance embraces `literature' in the widest sense." The Court also concluded that the ordinance was " . . . comprehensive with respect to the method of distribution. It covers every sort of circulation `either by hand or otherwise.' There is thus no restriction in its application with respect to time or place."

The Court pointed out that there was no language in the ordinance suggesting that the city was concerned with literature that was obscene or offensive to public morals or that advocated unlawful conduct. There was also no language suggesting that the ordinance was concerned with distribution methods that might be regarded as "inconsistent with the maintenance of public order, or as involving disorderly conduct, the molestation of inhabitants, or the misuse or littering of the streets." According to the Court, the ordinance prohibited the distribution of "literature of any kind at any time, at any place, and in any manner without a permit from the city manager."

Because of the unrestrained reach of its language, the Court found the ordinance invalid on its face. The Court concluded that, regardless of the reasons the city had for adopting the ordinance, "its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship." Viewing the struggle for the freedom of the press from an historical perspective, the Court stated,

[t]he struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his `Appeal for the Liberty of Unlicensed Printing.' And the liberty of the press became initially a right to publish `without a license what formerly could be published only with one.' While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision.
According to the Court, enforcing the ordinance would "restore the system of license and censorship in its baldest form."
Lovell v. City of Griffin - `press' Includes Pamphlets [next] [back] Lovell v. City of Griffin - A Substantial Federal Question

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