Defendant addressed a crowd of people, white and Negro, on a public sidewalk for the purpose of urging them to attend a certain meeting. During the course of his speech he  \u27called Mayor Costello [of Syracuse] a champaign [sic] sipping bum and President Truman a bum. He referred to the American Legion as Nazi Gestapo agents-he also said the fifteenth Ward was run by corrupt politicians and that horse rooms were operating.\u27  He also appealed to the Negroes to rise up and fight for equal rights. The police were called but at first merely observed the gathering. Angry mutterings were heard as the crowd became divided in its sentiments toward the speaker. Pedestrians were unable to pass without going out into the street. Finally, after the police gave defendant several ineffective warnings to stop talking, he was arrested and convicted of disorderly conduct in violation of a state statute, over his objection that his freedom of speech had been unconstitutionally denied. On appeal to the New York Court of Appeals, held, affirmed. The constitutional guarantee of freedom of speech does not make this right absolute. Conviction for disorderly conduct does not infringe upon this right where the speaker on a public street encourages his audience to become divided into hostile camps, interferes with traffic, and deliberately agitates and goads the crowd and police officers into action. People v. Feiner, 300 N.Y. 391, 91 N.E. (2d) 316 (1950)

Boyd, Alan C., S. Ed.

English

University of Michigan School of Law

Michigan Law Review Volume 49 Issue 6 1951 CONSTITUTIONAL LAW-FREEDOM OF SPEECH Alan C. Boyd S. Ed. University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr  Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the First Amendment Commons Recommended Citation Alan C. Boyd S. Ed., CONSTITUTIONAL LAW-FREEDOM OF SPEECH, 49 MICH. L. REV. 896 (1951). Available at: https://repository.law.umich.edu/mlr/vol49/iss6/9  This Regular Feature is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. 896 M1cHIGAN LAw REvmw [Vol. 49 RECENT DECISIONS CONSTITUTIONAL LAw-FREEDoM OF SPEECH-Defendant addressed a crowd of people, white and Negro, on a public sidewalk for the purpose of urging them to attend a certain meeting. During the course of his speech he "'called Mayor Costello [of Syracuse] a champaign [sic] sipping bum and President Truman a bum. He referred to the American Legion as Nazi Gestapo agents-he also said the fifteenth Ward was run by corrupt politicians and that horse rooms were operating.' "1 He also appealed to the Negroes to rise up and fight for equal rights. The police were called but at first merely observed the gathering. Angry mutterings were heard as the crowd became divided in its sentiments toward the speaker. Pedestrians were unable to pass without going out into the street. Finally, after the police gave defendant several ineffective warnings to stop talk-ing, he was arrested and convicted of disorderly conduct in violation of a state statute,2 over his objection that his freedom of speech had been unconstitutionally denied. On appeal to the New York Court of Appeals, held, affirmed. The con-stitutional guarantee of freedom of speech does not make this right absolute. Conviction for disorderly conduct does not infringe upon this right where the speaker on a public street encourages his audience to become divided into hos-tile camps, interferes with traffic, and deliberately agitates and goads the crowd and police officers into action. People-v. Feiner, 300 N.Y. 391, 91 N.E. (2d) 316 (1950).3 Freedom of speech was first declared by the United States Supreme Court to be a fundamental right protected by the due process clause of the Fourteenth 1 Principal case at 395. 2 Criminal Code and Penal Law of New York (Clevenger-Gilbert 1948) §722. "Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior; 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; 3. Congregates with others on a public street and refuses to move on when ordered by the police; . . ." 3 Since the writing of this decision note, the United States Supreme Court has affirmed, in a six-three decision, Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303 (1951). 1951] RECENT DECISIONS 897 Amendment in the Gitlow case, decided in 1925.4 In the same opinion the Court recognized that this right was not absolute, but rather subject to police power regulation. Since this significant decision, the Court has zealously pro-tected freedom of speech. The "evil tendency" test, under which it is simply necessary to determine whether utterances "are ... inimical to the general wel-fare and involve ... danger of substantive evil"5 in some specific manner, was the Court's first test for determining whether or not speech could be properly restricted. From time to time various members of the Court have advocated the "clear and present danger" test as a better criterion for protecting the right of free speech without an additional evil effect upon general welfare, since this test requires a showing of causal relationship of the utterance to an evil result before speech can be restricted.6 Another limitation which has been imposed upon the right of free speech, very similar to the "clear and present danger" test, is the "fighting words" test, whereunder a person does not have a right to use language which would provoke his listener to violence.7 The principal case appears to em-ploy a combination of the "clear and present danger" and "fighting words" test insofar as it holds that defendant had no right to turn the members of the crowd against each other to a point where open hostility and violence appeared prob-able. The United States Supreme Court has already held, on facts quite similar to those of the principal case, that a defendant's right of free speech was uncon-stitutionally abridged.8 Defendant Terminiello was there arrested for creating a breach of the peace, under an ordinance almost identical in wording to the statute in the principal case, after making a most abusive speech in a private hall, inciting, not his audience, but members of minority groups outside the hall, to acts of violence. The Supreme Court there held the trial court's broad con-struction of the ordinance, to the effect that breach of the peace included speech which "'stirs the public to anger, invites dispute, brings about a condition of un-rest, or creates a disturbance' "9 was invalid without, therefore, having to decide the question of whether or not the content of the speech carried it outside the scope of the constitutional guarantee. The "fighting words" test presumably was not applicable, since those to whom the speech was directed were not the ones aroused to violence. This, plus the fact that the speech took place in a private hall, provided a ground of distinction upon which the court in the princi-pal case could distinguish the T erminiello decision, for defendant here spoke on 4 Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625 (1925). 5Jd. at 668. o This test first appeared in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247 (1919), where the Federal Espionage Act was in question. The test was later placed upon a constitutional level by Justice Holmes' dissent in Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625 (1925). See also Justice Jackson's dissent in Tenniniello v. Chicago, 337 U.S. 1, 69 S.Ct. 894 (1949), and Justice Brandeis' concurring opinion in Whitney v. California, 274 U.S. 357, 372, 47 S.Ct. 641 (1927). At the present time it is not dear how much support this test has among members of the Supreme Court. 7 Chaplinsky v. New Hampshire, 315 U.S. 568 at 571-572, 62 S.Ct. 766 (1942); Cantwell v. Connecticut, 310 U.S. 296 at 308-310, 60 S.Ct. 900 (1940). 8 Terminiello v. Chicago, supra note 6, (live-four decision). 9Terminiello v. Chicago, supra note 6, at 3. 898 MICHIGAN LAw R:svmw [Vol. 49 a public sidewalk, thus obstructing traffic, and agitated a crowd of mixed sym-pathizers and opponents with intent to create a breach of the peace. These are probably valid distinctions which may facilitate limitation of the scope of the Terminiello case, should the Supreme Court so desire.10 Alan C. Boyd, S. Ed. 10 Certiorari granted May, 1950. People v. Feiner, 339 U.S. 962, 70 S.Ct. 987, affd. 1951. See note 3 supra. 

CONSTITUTIONAL LAW-FREEDOM OF SPEECH

Michigan Law Review Volume 49 Issue 6 1951 CONSTITUTIONAL LAW-FREEDOM OF SPEECH Alan C. Boyd S. Ed. University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr  Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the First Amendment Commons Recommended Citation Alan C. Boyd S. Ed., CONSTITUTIONAL LAW-FREEDOM OF SPEECH, 49 MICH. L. REV. 896 (1951). Available at: https://repository.law.umich.edu/mlr/vol49/iss6/35  This Regular Feature is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. 896 M1cHIGAN LAw REvmw [Vol. 49 RECENT DECISIONS CONSTITUTIONAL LAw-FREEDoM OF SPEECH-Defendant addressed a crowd of people, white and Negro, on a public sidewalk for the purpose of urging them to attend a certain meeting. During the course of his speech he "'called Mayor Costello [of Syracuse] a champaign [sic] sipping bum and President Truman a bum. He referred to the American Legion as Nazi Gestapo agents-he also said the fifteenth Ward was run by corrupt politicians and that horse rooms were operating.' "1 He also appealed to the Negroes to rise up and fight for equal rights. The police were called but at first merely observed the gathering. Angry mutterings were heard as the crowd became divided in its sentiments toward the speaker. Pedestrians were unable to pass without going out into the street. Finally, after the police gave defendant several ineffective warnings to stop talk-ing, he was arrested and convicted of disorderly conduct in violation of a state statute,2 over his objection that his freedom of speech had been unconstitutionally denied. On appeal to the New York Court of Appeals, held, affirmed. The con-stitutional guarantee of freedom of speech does not make this right absolute. Conviction for disorderly conduct does not infringe upon this right where the speaker on a public street encourages his audience to become divided into hos-tile camps, interferes with traffic, and deliberately agitates and goads the crowd and police officers into action. People-v. Feiner, 300 N.Y. 391, 91 N.E. (2d) 316 (1950).3 Freedom of speech was first declared by the United States Supreme Court to be a fundamental right protected by the due process clause of the Fourteenth 1 Principal case at 395. 2 Criminal Code and Penal Law of New York (Clevenger-Gilbert 1948) §722. "Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior; 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; 3. Congregates with others on a public street and refuses to move on when ordered by the police; . . ." 3 Since the writing of this decision note, the United States Supreme Court has affirmed, in a six-three decision, Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303 (1951). 1951] RECENT DECISIONS 897 Amendment in the Gitlow case, decided in 1925.4 In the same opinion the Court recognized that this right was not absolute, but rather subject to police power regulation. Since this significant decision, the Court has zealously pro-tected freedom of speech. The "evil tendency" test, under which it is simply necessary to determine whether utterances "are ... inimical to the general wel-fare and involve ... danger of substantive evil"5 in some specific manner, was the Court's first test for determining whether or not speech could be properly restricted. From time to time various members of the Court have advocated the "clear and present danger" test as a better criterion for protecting the right of free speech without an additional evil effect upon general welfare, since this test requires a showing of causal relationship of the utterance to an evil result before speech can be restricted.6 Another limitation which has been imposed upon the right of free speech, very similar to the "clear and present danger" test, is the "fighting words" test, whereunder a person does not have a right to use language which would provoke his listener to violence.7 The principal case appears to em-ploy a combination of the "clear and present danger" and "fighting words" test insofar as it holds that defendant had no right to turn the members of the crowd against each other to a point where open hostility and violence appeared prob-able. The United States Supreme Court has already held, on facts quite similar to those of the principal case, that a defendant's right of free speech was uncon-stitutionally abridged.8 Defendant Terminiello was there arrested for creating a breach of the peace, under an ordinance almost identical in wording to the statute in the principal case, after making a most abusive speech in a private hall, inciting, not his audience, but members of minority groups outside the hall, to acts of violence. The Supreme Court there held the trial court's broad con-struction of the ordinance, to the effect that breach of the peace included speech which "'stirs the public to anger, invites dispute, brings about a condition of un-rest, or creates a disturbance' "9 was invalid without, therefore, having to decide the question of whether or not the content of the speech carried it outside the scope of the constitutional guarantee. The "fighting words" test presumably was not applicable, since those to whom the speech was directed were not the ones aroused to violence. This, plus the fact that the speech took place in a private hall, provided a ground of distinction upon which the court in the princi-pal case could distinguish the T erminiello decision, for defendant here spoke on 4 Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625 (1925). 5Jd. at 668. o This test first appeared in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247 (1919), where the Federal Espionage Act was in question. The test was later placed upon a constitutional level by Justice Holmes' dissent in Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625 (1925). See also Justice Jackson's dissent in Tenniniello v. Chicago, 337 U.S. 1, 69 S.Ct. 894 (1949), and Justice Brandeis' concurring opinion in Whitney v. California, 274 U.S. 357, 372, 47 S.Ct. 641 (1927). At the present time it is not dear how much support this test has among members of the Supreme Court. 7 Chaplinsky v. New Hampshire, 315 U.S. 568 at 571-572, 62 S.Ct. 766 (1942); Cantwell v. Connecticut, 310 U.S. 296 at 308-310, 60 S.Ct. 900 (1940). 8 Terminiello v. Chicago, supra note 6, (live-four decision). 9Terminiello v. Chicago, supra note 6, at 3. 898 MICHIGAN LAw R:svmw [Vol. 49 a public sidewalk, thus obstructing traffic, and agitated a crowd of mixed sym-pathizers and opponents with intent to create a breach of the peace. These are probably valid distinctions which may facilitate limitation of the scope of the Terminiello case, should the Supreme Court so desire.10 Alan C. Boyd, S. Ed. 10 Certiorari granted May, 1950. People v. Feiner, 339 U.S. 962, 70 S.Ct. 987, affd. 1951. See note 3 supra. 

bepress Legal Repository

https://repository.law.umich.edu/cgi/viewcontent.cgi?article=8606&context=mlr

CONSTITUTIONAL LAW-FREEDOM OF SPEECH

Abstract

Similar works

Full text

Available Versions

University of Michigan School of Law

University of Michigan School of Law

bepress Legal Repository

bepress Legal Repository