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Happy Friday and welcome to the 16th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:
“Originally posted at Squarestate.net“
First Amendment Friday 1 – Abrams v US
First Amendment Friday 2 – Gitlow v New York
First Amendment Friday 3 – Whitney v California
First Amendment Friday 4 – Brandenbrug V Ohio
First Amendment Friday 5 – Bridges V California
First Amendment Friday 6 – Planned Parenthood V ACLA
First Amendment Friday 7 – New York Times V Sullivan
First Amendment Friday 8 – Butts V Curtis
First Amendment Friday 9 – Gertz v Welch Inc.
First Amendment Friday 10 – Hustler V Falwell
First Amendment Friday 11 – Bartniki V Vopper
First Amendment Friday 12- Landmark V Virginia
First Amendment Friday 13 – Nebraska Press Assoc. V Stuart
First Amendment Friday 14 – New York Times V. US – The Pentagon Papers
First Amendment Friday 15 – Gooding V. Wilson
This week we will continue our look at prior restraint on freedom of speech.
Ms. Lovell was a Jehovah’s Witness who was cited for breaking the City of Griffin Ordinance requiring a permit from the City Manager for the distribution of any printed materials.
In 1937 Ms. Lovell was found guilty of breaking the City of Griffin ordinance on the distribution of literature. She was sentenced to fifty days in jail, in lieu of the fifty dollar fine the ordinance carried.
The ordinance read:
Section 1. That the practice of distributing, either by hand or otherwise, circulars, handbooks, advertising, or literature of any kind, whether said articles are being delivered free, or whether same are being sold, within the limits of the City of Griffin, without first obtaining written permission from the City Manager of the City of Griffin, such practice shall be deemed a nuisance, and punishable as an offense against the City of Griffin.
“Section 2. The Chief of Police of the City of Griffin and the police force of the City of Griffin are hereby required and directed to suppress the same and to abate  any nuisance as is described in the first section of this ordinance.”
Ms. Lovell did not apply for a permit to distribute the religious tracts she was handing out as she felt she was “sent by Jehovah to do his work” and that to apply for a permit would be “an act of disobedience to His commandment” .
The Procedural History:
At trail Ms. Lovell represented herself at trail. She argued it was the Fourteenth Amendment protected the rights of freedom of speech and freedom of the press (She was mistaken as it is the First Amendment not the Fourteenth).
Her arguments were rejected by the Recorders Court of the City of Griffin and she was convicted.
The Superior Court of the County refused an appeal.
The Court of Appeals affirmed the Superior Courts decision.
The Georgia Supreme Court refused certiorari (which means they did not want to hear the case either).
The Legal Issue:
Does a the City of Griffin have the right to require a permit for the distribution of literature?
The Unanimous Opinion:
Mr. Chief Justice Hughes delivered the Court Opinion
Goes straight to the heart of the matter, he writes:
The ordinance is 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. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the City Manager.
Here the Chief Justice is basically defining the broadness of this ordinance. He is exploring the boundaries, if any, of the ordinance. He finds that there are no reasonable boundaries at all. This is could be called the very definition of overbroadness.
He then drives a stake through it with the following:
We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The 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.”[note 1] 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 constitutional provision. See Patterson v. Colorado,; Near v. Minnesota,; Grosjean v. American Press Co.. Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.
The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated. Near v. Minnesota, supra; Grosjean v. American Press Co., supra; De Jonge v. Oregon, supra
The ordinance cannot be saved because it relates to distribution and not to publication. “Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.” Ex parte Jackson, The license tax in Grosjean v. American Press Co., supra, was held invalid because of its direct tendency to restrict circulation.
As the ordinance is void on its face, it was not necessary for appellant to seek a permit under it. She was entitled to contest its validity in answer to the charge against her. Smith v. Cahoon.
The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
What the Court found was that this kind of ordinance is exactly what the Framers were trying to prevent when they made the First Amendment protections on freedom of the press. They believed, from personal experience, without a press unfettered by the Government there could be no just government. This type of ordinance was a direct interference in that freedom because of its broadness. It was completely struck down.
This case and others opened the doorway for any group wanting to give you literature of any kind in public. It is sometimes annoying (especially for those of us who are not believers in any deity) to be accosted with religious tracts on street corners. However this minor annoyance is far better than ceding the power of deciding what is and what is not allowed to be discussed and distributed to the Government.
What is critical in this case is the Government had the ability to decide in advance of the event, not after the fact. The more the Dog looks at the law, the clearer it becomes that our system of law is all based on remedy after action. There has to be an enormously high bar to the Government restricting something as fundamental as political or religious speech before the fact.
What do you think? Was this the slam dunk the Court seemed to think it was, or should they have acted as the GA Courts did and only rule on the mistaken premises Ms. Lovell presented at trial?
This week the Dog could not find this case at the IIL. But in keeping with giving credit to the site which provided the decisions, you can find this case at this at the Boston College Law site by following this.
The floor is yours.