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Hague v. Committee for Industrial Organization

January 26, 1939


Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.

Author: Biggs

Before DAVIS, BIGGS, and MARIS, Circuit Judges.

BIGGS, Circuit Judge.

The question presented by the appeal at bar is whether or not certain fundamental civil liberties safeguarded by the Constitution of the United States shall be observed and protected in Jersey City or shall there stand abridged.

The appellants, the defendants below, are the Mayor of Jersey City, the Director of Public Safety, the Chief of Police, and the Board of Commissioner of Jersey City. The appellees, the plaintiffs below, are the Committee for Industrial Organization, labor organizations affiliated with the CIO, individual representatives of such organizations, and the American Civil Liberties Union, a membership corporation.

The Nature of the Proceedings.

The bill of complaint alleges that the appellants have denied the appellees the right to hold lawful meetings within the territorial limits of Jersey City allegedly upon the authority of an ordinance adopted April 15, 1930. It is further alleged that this denial was pursuant to a plan and conspiracy entered into by the appellants as public authorities of Jersey City to forbid all meetings organized by the appellees for the purposes of carrying on and discussing the work of the CIO and that to effect such ends the appellants exercised unlawful restraints upon the appellees and persons acting in sympathy with them. It is also alleged that the apellants denied the appellees and those acting in sympathy with them the right to disseminate information concerning the CIO by handbills or circulars and that this denial allegedly was pursuant to the authority of another ordinance of Jersey City passed upon January 22, 1924. It is also alleged that the appellants refused to permit picketing, excluded and deported agents of the appellees and persons acting in sympathy with them from the territorial limits of Jersey City, conducted searches and seizures without warrant or probable cause and generally harassed and molested the appellees and their agents in disregard of their constitutional rights. The bill of complaint prayed for injunctive relief. The appellants filed an answer in substance denying the charges made by the appellees, and setting up as a defense that the appellees, their sympathizers and agents invaded Jersey City to cause and create confusion and riot and to intimidate the police. At the trial, which consumed many days, voluminuous testimony was taken which we will briefly summarize.

The Evidence.

It appeas that in November, 1937, the appellee William J. Carney, regional director of the CIO in New Jersey, prepared to inaugurate a drive for CIO membership in Jersey City. Learning of this fact, upon November 23, 1937, the Newark Evening News published an article headed, "CIO Prepared for Invasion - Mass Drive by 3,000 to be Launched Monday in Jersey City." The article went on to set forth certain statements alleged to have been made by Carney to the effect that there would now be a "show down" between the CIO and Mayor Hague. Carney was also reported to have said, "We will go to Jersey City to organize in a peaceful manner. Whether this will be possible in the fact of denials of civil rights in that city I am unable to say at this time." Article of similar tenor appeared about this time in other newspapers in and about Jersey City.

The record also shows that about 6 o'clock upon the morning of November 29, 1937, a number of persons, CIO members or sympathizers, gathered or attempted to gather at the CIO headquarters at No. 76 Montgomery Street, Jersey City. We use the phrase attempted to gather because the police were present about the headquarters in force, engaged in searching individuals and confiscating circulars and handbills relating to CIO union activities. A substantial number of these individuals were deported from Jersey City by the police by placing them upon ferry boats bound for New York City or by conducting them in motor vehicles beyond the territorial limits of Jersey City. A small number of individuals were arrested and a few were tried before a city magistrate who sentenced each defendant to five days' imprisonment for the offense of illegally distributing the circulars referred to. There is evidence that the police held CIO sympathizers for a time within the CIO headquarters, searching individuals as they went out through the door into the street, and thereafter entered the premises and made further searches and some seizures of the offending handbills.

The evidence is not entirely clear as to how many persons came to Jersey City or were in Jersey City attempting to take part in CIO activities upon the morning of November 29th, but an examination of it indicates that the total number of these persons did not exceed a hundred, and their activities did not constitute an invasion within any accepted meaning of that word. What they had planned to accomplish presented no serious threat to the peace and good order of Jersey City. Upon the other hand the police of Jersey City sought to disorganize the forces of the CIO rather than to proceed in a manner calculated to preserve the civil rights of individuals. As we have stated, there were but few arrests and fewer trials. The conduct of the police upon this occasion was in gross violation of the civil rights of the persons concerned.

Within a comparatively short time thereafter the appellee American Civil Liberties Union attempted to secure a permit from the Director of Public Safety of Jersey City to hold an open air meeting in the City of Jersey City for the purpose of addressing the public upon the subject of civil liberties. The speakers were to be three members of Congress and a member of the bar of New York. At about this time also the CIO made an application for a permit for an outdoor meeting for the purpose of petitioning the Board of Commissioners of Jersey City to modify the ordinance prohibiting the distribution of circulars and to take action in respect to the alleged intimidation of owners of halls by certain officers of Jersey City. Certain persons were named as the speakers, including a member of Congress, CIO orgnaizers, Roger N. Baldwin, and others. Permits to hold these meetings were refused by the Director of Public Safety of Jersey City upon the ground that the meetings would lead to riots and disorder. A permit to speak was also refused to Norman Thomas, a former socialist candidate for President of the United States. A permit for a meeting was also refused to the American Whig Cliosophic Society of Princeton University, which desired to hold a public meeting in Jersey City at which Senator Willim E. Borah was to be the speaker. This permit was also denied upon the ground "that the said meeting would tend to create disturbance and disorderly assemblage." William M. Callahan, managing editor of "The Catholic Worker," was not granted a permit for a meeting though he stated that its purpose was to explain the Papal Encyclicals.

Protests in respect to the holding of CIO meetings were made to the Mayor and to the Department of Public Safety by organizations in and about Jersey City. These included protests of the Jersey City Chamber of Commerce, the Association of the Sons of Poland, the Catholic War Veterans, the Jersey City Lions Club, the Jersey City Real Estate Board, the Ladies of the Grand Army of the Republic and the Italian War Veterans. There is evidence that Mayor Hague and his associates inspired at least some of these protests. The evidence is uncontrovertible that he was the spearhead of the movement to keep the appellee labor groups out of Jersey City. For example, a very large mass meeting of veterans' organizations was held at the Jersey City Armory and was addressed by Mayor Hague and other persons. The record indicates that the calling together of thse organizations was done upon the instructions of Mayor Hague and that the himself actively collaborated in procuring the record attendance at the armory. At least one threat of violence was voiced against the CIO and its sympathizers.Mayor Hague, however, in testifying in the court below, made plain his belief that this threat was simply one by an overzealous individual and there was no real danger of physical violence from the veterans' organizations. This mass meeting voiced its approval of the stand of the appellants in respect to the CIO and its sympathizers and protested against CIO speakers being allowed to address meetings in Jersey City.

The protects are important in that they serve as the basis expressed by the appellants for their refusal to grant permits for public meetings to the CIO and its sympathizers.While permits were refused to these persons by the Director of Public Safety, other groups whose views were not at variance with the opinions of the majority of the inhabitants of Jersey City received permits freely or the requirement of a permit was waived. It should be noted also that throughout this period of protecting mass meetings, the conduct of the police in respect to the appellees was similar to their conduct upon November 29, 1937. CIO members and sympathizers were deported from Jersey City and searches of individuals continued to be made without warrant or probable cause.

The reason given by Mayor Hague and certain of the other appellants in their testimony for such acts upon the part of the police was the necessity of preserving peace and good order in Jersey City and obviating the possibility of riot, strife and injury of the speakers and the citizens of Jersey City.It in no wise appears, however, from the record before us that the police of Jersey City would have been powerless to maintain order at any meeting proposed by the appellees.

Findings of Fact and Conclusions of the Trial Court.

After the trial of the cause the learned trial judge filed an exhaustive and able opinion and made exact and clear findings of fact and conclusions of law. He thereupon entered a decree granting the appellees substantially the relief they sought.

Among the findings of fact so made by the trial court are findings to the effect that the CIO, Steel Workers Organizing Committee, United Electrical Radio and Machine Workers of America and United Rubber Workers of America were established and are maintained for the purpose of organizing into labor unions unorganized workers and to cause such labor unions to function as collective bargaining agencies for the betterment of terms and conditions of employment; that the American Civil Liberties Union was established and is maintained for the purpose of taking measures deemed by it to be essential for the enforcement of the rights secured by the First and Fourteenth Amendments to the Constitution of the United States, U.S.C.A. The court also found that the purposes of these appellees "are in the letter and spirit of our Constitution and laws and of the theory of our democratic institutions." The trial court also found that there was no competent proof that these appellees entertained other purposes or that the appellees or any of them "incited or advocated the overthrow of the government of the United States or the State of New Jersey by force or violence or incited or advocated the commission of any other acts in violation of the laws of the United States or the State of New Jersey."

Specifically in relation to the acts alleged by the appellees to have been committed by the appellants, the learned trial judge found that the appellants acting in their official capacities had adopted and enforced a deliberate policy of excluding and removing from the territorial limits of Jersey City the agents of the CIO and of the American Civil Liberties Union and persons acting in sympathy with them, had exercised unlawful personal restraints over these individuals and had interfered with their right of free locomotion on and free access to the public streets and parks of Jersey City. The trial court also found that such exclusions and removals, personal restraints and interferences were frequently carried out by members of the police force of Jersey City upon their own fiat and without authority of law and without bringing the persons excluded, removed or restrained before any judicial officers in order to afford such individuals the benefits of judicial hearings.

Further findings of fact state that the appellants prevented the appellees or their agents from distributing circulars and leaflets, from carrying placards or signs or otherwise publicizing the work of the CIO.

Particularly in respect to public meetings, the trial court found that the appellants officially adopted and enforced the deliberate policy of forbidding the appellees from communicating their views to the citizens of Jersey City by public gatherings or assemblies though there was competent proof that the appellants had granted permits to various persons, not associated with the appellees, to speak at meetings in the public streets of that city. The trial judge also found that there was no competent proof that the parks of Jersey City had been dedicated to any other purpose than the general recreation of the public. The trial court also found that there was no competent proof that the persons who were to speak at the meetings proposed by the appellees were such that any of them "either in their choice of words or in the manner of uttering the words chosen" would violate canons of decent discussion or speak such words that breaches of the peace would ensue. The trial judge found also that the appellants had caused permits to be refused for the holding of outdoor meetings of citizens to be addressed by the divers persons, sympathizers of the appellees, named in the findings of fact.

As a matter of law the trial court held that the appellants' deliberate official policy and acts were in violation of the rights of the appellants under the Fourteenth Amendment and the Commerce Clause (Art. 1, § 8, cl. 3) of the Constitution of the United States, U.S.C.A.*fn1 These are the substantive questions of law presented by this appeal. A question of jurisdiction is also raised and will be considered later in this opinion.

The Questions of Law.

As to Liberty of the Person.

As to Exclusion and Removal of Individuals from Jersey City.

Idividuals coming into or going about a city upon their lawful concerns must be allowed free locomotion upon the streets and public places.

Section 1 of the Fourteenth Amendment to the Constitution of the United States provides, inter alia, that "No State shall make or enforce any law which shall abridge the priviledges or immunities of citizens of the United States; * * * ". There is no doubt that the right of an individual to pass with freedom of movement and without molestation between the States of the Union is one of the privileges of federal citizens which is protected by this clause. As was stated in Williams v. Fears, 179 U.S. 270, 274, 21 S. Ct. 128, 129, 45 L. Ed. 186, "Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution." See Crandall v. Nevada, 6 Wall. 35, 36, 18 L. Ed. 745; Colgate v. Harvey, 296 U.S. 404, 56 S. Ct. 252, 80 L. Ed. 299, 102 A.L.R. 54; United States v. Miller, D.C., 17 F.Supp. 65, 67; Marcus Brown Holding Co. v. Pollak, D.C., 272 F. 137, 141; In re Ah Fong, 1 Fed. Cas., pp. 213, 217, No. 102; Twining v. New Jersey, 211 U.S. 78, 97, 29 S. Ct. 14, 53 L. Ed. 97.

The record before us shows numerous instances where CIO sympathizers were removed from Jersey City by police officers acting with the approval of the appellants. The findings of fact of the trial court in this regard are fully supported by the evidence and injunctive relief was properly granted.

As to Unlawful Searches and Seizures.

The Fourth Amendment to the Constitution of the United States provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, * * ". The right so protected is a fundamental civil right and in our opinion is a privilege of Federal citizenship. As such it is secured against abridgment by the states by the privileges or immunities clause of the Fourteenth Amendment as well as by the due process clause of that Amendment. We shal consider this question further when dealing with the jurisdiction of the court below.

Constitutional provisions granting freedom from unlawful searches and seizures are "of the very essence of constitutional liberty." Gouled v. United States, 255 U.S. 298, 304, 41 S. Ct. 261, 263, 65 L. Ed. 647; Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S. Ct. 153, 75 L. Ed. 374. Searches and seizures are unreasonable if they are carried out without probable cause. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790; United States v. O'Connell, D.C., 43 F.2d 1005. As was so succinctly stated by Judge Woods of the Circuit Court of Appeals for the Fourth Circuit in Elrod v. Moss, 278 F. 123, 130, " * * * to justify search and seizure * * * without warrant, the officer must have direct personal knowledge, through his hearing, sight, or other sense, of the commission of the crime by the accused."

In the case at bar the searches and seizures were made without probable cause, without personal knowledge upon the part of the searching officer and in fact without any crime or crimes having been committed.

It is apparent therefore that the injunctive relief from unreasonable searches and seizures given to the appellees by the court below was granted providently.

As to Interferences in General.

An examination of the record leads us to the conclusion that the police of Jersey City pursued a course of conduct towards the appellees which possessed no sanction whatsoever in statute or ordinance. The appellees contend that, "If the police policy were in terms embodied in a criminal statute * * * " such a statute would be unconstitutional. They cite the language of Mr. Justice Brandeis in Senn v. Tile Layers Protective Union, 301 U.S. 468, 478, 57 S. Ct. 857, 862, 81 L. Ed. 1229, stating, "Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution." It is demonstrated by the record in the case at bar that though there is no ordinance of Jersey City which deals specifically with the right of picketing in labor disputes, none the less the practical effect of the actions of the police in the case at bar was to prohibit picketing except upon terms and conditions impolsed by the individual members of the police force.

It follows that when members of a police force remove individuals from a picket line, deport them from the territorial limits of a city or detain them in police custody under guise of arrest and release them without charges and without trial, the police are acting in defiance of due process of law as guaranteed by the Fourteenth Amendment. When, as in the case at bar, such conduct receives the consent and approbation of those charged with the conduct of city government, justice is destroyed. Such a condition is abhorrent in a democratic community.

An individual has a right to trial by properly constituted judicial authority upon a defined standard of criminal responsibility set forth by statute or ordinance. He must have the opportunity to be heard and to call witnesses in his own defense. This is the very essence of due process of law as prescribed by the Fourteenth Amendment. Powell v. Alabama, 287 U.S. 45, 68, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527; Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 78 L. Ed. 674, 90 A.L.R. 575; United States v. Ballard, D.C., 12 F.Supp. 321, 325.

The findings of the trial court in respect to the issues under this heading are fully supported by the evidence and injunctive relief was properly granted.

As to Liberty of the Mind.

Interference with the Distribution of Handbills and the Carrying of Signs.

An ordinance of Jersey City passed by its Board of Commisioners upon January 22, 1924, provides in part that "No person shall distribute or cause to be distributed or strewn about any street or public place any newspapers, paper, periodical, book, magazine, circular, card or pamphlet," and prescribes severe penalties for its breach. There are no licensing provisions in the ordinance and the prohibition it contains is absolute.

Such an ordinance is invalid upon its face in that it violates freedom of speech and of the press, fundamental civil rights protected by the Fourteenth Amendment from any abridgment by State action. It is squarely within the decision of the Supreme Court of the United States in Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949.

Indeed, we do not understand that the appellants themselves today contend to the contrary. As we apprehend their position, it is to the effect that there was no need to lay the burden of an injunction upon them since they themselves are prepared to respect and honor the ruling of the Supreme Court. The record shows clearly, however, that for some time after the handing down of the decision in Lovell v. City of Griffin, supra, the police of Jersey City continued their practice of refusing to permit the distribution of handbills by the sympathizers of the appellees upon the streets and in the public places of Jersey City.

The posting of placeards and signs in public places is part of the freedom of the press. In our opinion such is clearly within the principle of Lovell v. City of Griffin, supra.

The findings of the trial court as to the violation of these fundamental civil rights by the appellants are fully supported by the evidence and the injunctive relief granted is affirmed.

As to the Right of Free Assembly, the Holding of Meetings upon the Streets or in the Public Parks of Jersey City.

An ordinance of Jersey City adopted April 15, 1930 by the Board of Commissioners provides that " * * * no public parades or public assembly in or upon the public streets, highways, public parks or public buildings of Jersey City shall take place or be conducted until a permit shall be obtained from the Director of Public Safety." The ordinance also states that the Director of Public Safety is authorized to grant permits for parades and public assembly " * * * upon application made to him at least three days prior to the proposed parade or public assembly." The ordinance provides further that the Director of Public Safety is authorized to refuse a permit " * * * when, after investigation of all of the facts and circumstances pertinent to said application, he believes it to be proper to refuse the issuance thereof; provided, however, that said permit shall only be refused for the purpose of preventing riots, disturbances or disorderly assemblage." Substantial penalties are provided for the violation of the ordinance.

It is the contention of the appellants that permits for the holding of public meetings in Jersey City were properly refused to the appellees because such meetings would have resulted in riots and disorderly assembly.

We are of the opinion that the ordinance is unconstitutional in view of the fact that it permits the imposition of previous restraint upon the right of the individual to speak before an assembly of his fellows in a public place. The ordinance therefore prohibits peaceable assembly except upon terms repugnant to free speech. Freedom of speech and of the press are fundamental civil rights which are safeguarded to the individual by the due process clause of the Fourteenth Amendment.

As was stated by Mr. Chief Justice Hughes, delivering the opinion of the Supreme Court in De Jonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, 260, 81 L. Ed. 278, "These rights may be abused by using speech or press or assembly in order to incite to violence and crime.The people through their Legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed."

The refusal of the courts to allow previous restraint to be imposed upon the freedom of the press is well exemplified by the decision of the Supreme Court of the United States in Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 628, 75 L. Ed. 1357. In the cited case a statute of Minnesota, Chapter 285 of the Session Laws of Minnesota for the year 1925. See Mason's Minnesota Statutes, 1927, §§ 10123-1 to 10123-3, provided for the abatement, as a public nuisance, of " * * * a malicious, scandalous and defamatory newspaper" and authorized suits in the name of the State to abate such periodicals and to enjoin publishers from further violations. Such a suit was brought against "The Saturday Press" published in Minneapolis. From the opinion of the Supreme Court it appears that the articles contained in The Saturday Press were inflammatory and had led to actual violence. By its decision the Supreme Court of the United States reversed a decree of the Supreme Court of Minnesota sustaining an injunction abating the publication of the periodical. Mr. Chief Justice Hughes, delivering the opinion of the Court, stated: "It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment [U.S.C.A. Const.] from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property."

The Chief Justice went on the state, "If we cut through mere details of procedure, the operation and effect of the [Minnesota] statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter. * * * This is of the essence of censorship.

"The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed. In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication. * * * "

The Chief Justice also stated, "Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends to disturb the public peace and to provoke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication. 'To prohibit the intent to excite those unfavorable sentiments against those who administer the Government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the Government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it by free animadversions on their characters and conduct.' There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well-understood tendency did not alter the determination to protect the press against censorship and restraint upon publication. As was said in New Yorker Staats-Zeitung v. Nolan, 89 N.J.Eq. 387, 388, 105 A. 72; 'If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited.' The danger of violent reactions becomes greater with effective organization of defiant groups resenting exposure, and, if this consideration warranted legislative interference with the initial freedom of publication, the constitutional protection would be reduced to a mere form of words."

In Grosjean v. American Press Co., 297 U.S. 233, 56 S. Ct. 444, 449, 80 L. Ed. 660, the Supreme Court held that the predominant purpose of the grant of immunity there invoked by the appellees, viz., the immunity granted by the Fourteenth Amendment, was " * * * to preserve an untrammeled press as a vital source of public information." The Supreme Court thereupon proceeded to affirm the decree of the court below declaring unconstitutional a socalled licensing tax sought to be imposed upon the appellees by the State of Louisiana (La. Act. No. 23, July 12, 1934). See also Dearborn Publishing Co. v. Fitzgerald, D.C., 271 F. 479.

There is strong analogy between the right freely to publish the written or printed word and the right here in issue freely to speak in a public assembly. It may be argued that inflammatory words spoken before an audience may lead more quickly to violence than the printed word dispersed throughout a city. The question, however, is one of degree. Free speech and free assembly are commonplaces of democratic governments. They are unheard of under totalitarian regimes. In New York and in London, cities possessing populations as diverse as Jersey City, free speech and free assembly are allowed as a matter of course and speakers may there call even for the destruction of existing laws and governments and be received with tolerance or amusement.

The rights of free speech and free assembly are essential parts of our American heritage. If the words used by a speaker are slanderous, the injured person may sue for damages in a court at law. If the speaker incites to riot or crime, the police may arrest him forthwith and the criminal processes of a democracy are available to punish him.In his concurring opinion in Whitney v. People of State of California, 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095, in which the question before the court was one of punishment of the defendant, she having spoken in defiance of the Criminal Syndicalism Act of California (Statute 1919, c. 188, p. 281), Mr. Justice Brandeis stated at page 378, 47 S. Ct. at page 649, "The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly." We can perceive no valid reason why the situation should be otherwise in Jersey City. Speakers may not be prohibited from speaking because they may say something which will lead to disorder. The function of the police at public meetings is not to prevent speakers from presenting their views but to preserve order while they speak. Otherwise, freedom of speech and assembly is destroyed.

The interpretation of the rights of free speech and free assembly contended for by the appellants is shocking and places these rights in the hands of those who would destroy them. If the ill-intentioned threaten riot, speech may not be had. Under what conditions then would not the cry of riot be raised? Applying the appellants'doctrine literally, political speakers might not stump a city in an election if their opponents objected to what they had to say and threatened disorder. The strict application of such a rule would result eventually in the existence of but one political party as is now the case under totalitarian governments.

The rule contended for by the appellants is scarcely one which commends itself to practical democratic government. Nor do we think that the appellants have followed such a rule. The record shows that the appellees and their sympathizers were not permitted to speak because they were deemed to be undesirables by the city authorities. The cries of impending riot raised by the appellants are not candid. In other words, Mayor Hague and his associates, reversing the usual procedure, troubled the waters in order to fish in them.

There are of course both proper and improper times and places for holding public meetings. It is difficult to conceive a time when a public meeting might properly be held at Broad and Chestnut Streets in Philadelphia or at Broadway and Forty-Second Street in New York City. If public meetings are to be held upon the streets of a city, they must be held at such places or such times as will permit them not to interfere unreasonably with the traffic and all that it implies. Such a rule, however, should not be too narrow a one, for if a public meeting is held, it is to be assumed that volume of traffic will be increased. If mass meetings are to be held in public parks, they must be held at such times and in such localities that they will not unduly interfere with the public recreation to which parks are dedicated.A statute or ordinance embodying these principles of regulation would in our opinion be constitutional.

Much emphasis is placed by the appellants upon the decision of the Supreme Court in Davis v. Massachusetts, 167 U.S. 43, 17 S. Ct. 731, 42 L. Ed. 71, upon appeal from a decision of the Supreme Judicial Court of Massachusetts, Commonwealth v. Davis, reported in 162 Mass. 510, 39 N.E. 113, 26 L.R.A. 712, 44 Am.St.Rep. 389. In the cited case an ordinance of Boston forbade speaking on the Common without a permit from the city authorities. Davis desired to use the Common for religious services. He proceeded to speak without asking for a permit and was arrested and convicted. Upon the appeals that conviction was sustained.

The Davis case, however, may be distinguished upon its circumstances from that at bar. As we have stated, Davis never applied for a permit to the city authorities. In the case at bar, the appellees sought permits in accordance with the terms of the Jersey City ordinance and permits were denied to them. Upon the question of the constitutionality of the ordinance now under discussion, however, it is in point and we cannot state otherwise. In our opinion, however, the rule laid down in the Davis case has been modified by the later decisions of the Supreme Court in Gitlow v. People of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138; Fiske v. Kansas, 274 U.S. 380, 47 S. Ct. 655, 71 L. Ed. 1108; De. Jonge v. Oregon, supra; Near v. Minnesota, supra, and Lovell v. City of Griffin, supra. In these later cases the Supreme Court declared the modern doctrine of protection of liberty of speech and assembly against state and municipal restrictions and made plain by judicial interpretation that the freedom of press and speech expressly protected by the First Amendment of the Constitution against Federal interference was also protected by the Fourteenth Amendment against interference by the States. Moreover, in the Dvis case there is but small discussion of civil liberties. The Supreme Court took the position that " * * * for the legislature * * * to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house." [167 U.S. 43, 17 S. Ct. 733.] This view of the powers of city authorities in respect to a public park, viz., likening them to the powers of an individual over his own dwelling, does not seem consonant with the expressions of the Supreme Court upon germane subjects in a later period. On the contrary we think it cannot now be doubted that a city owns and its officials administer its streets and parks, not as private proprietors, but as trustees for the people. While streets and parks are to be administered primarily for the use of the people for travel and recreation it is equally certain that, consistent with such uses, the public places of a city must be open for the use of the people in order that they may exercise their rights of free speech and assembly. If this were not so it is obvious that these rights would be but empty forms for those unable to obtain suitable private places in which to exercise them.

The Ordinance Has Been Administered In An Unconstitutional Manner.

But even if we were to assume that the ordinance of Jersey City under consideration is valid and constitutional, none the less we find that it has been administered in a discriminatory and therefore undonstitutional manner.

The learned trial judge in three of his findings of fact treats the past performances of the speakers designated by the appellees, whether they have spoken with decency and without causing disorder, as constituting the test, or at least the most important single factor of the test, as to whether they will cause disorder if permitted to speak. He then found as a fact that none of the speakers designated by the appellees had ever spoken at any public meetings in the open air at the places designated in the applications for permits and that none of the designated speakers in past performances had ever given reasonable grounds for belief that breaches of the peace would result from their utterances. The test so applied by the trial judge seems to us to be a proper one if it be conceded that previous restraint may be imposed. We can conceive of no other unless the speeches sought to be given are subjected to prior censorship by the authorities, a course completely incompatible with the right of free speech and assembly. The findings of fact referred to are fully supported by the evidence.

We can find no competent evidence from the record before us that violence or disorder would have resulted either from the meetings which the appellees desired to hold or from the words which the speakers were likely to deliver at such meetings. Nor was there any reasonable apprchension that the public in Jersey City would have rioted. The record, however, presents an extraordinary fact. The Mayor of Jersey City and the other appellants endeavored to build up a dangerous situation, one in which sympathizers of the appellees could not safely speak. That such efforts did not result in actual danger seems to us to have resulted rather from the good sense of the citizens than from the good will of Mayor Hague and his associates. As we have stated, while denying permits to the appellees and their sympathizers, the appellants granted permits for meetings to other groups. Discrimination is therefore plainly shown.

Such conduct upon the part of the appellants is in violation of the due process and equal protection clauses of the Fourteenth Amendment. The cirterion imposed by the authorities of Jersey City upon the right to speak therein is simply whether or not the individual who is to speak is a right thinking person in the view of those who constitute the city authorities. No other test is applied. The authorities upon this subject are very clear. In Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352, 38 S. Ct. 495, 62 L. Ed. 1154, Mr. Justice McReynolds, delivering the opinion of the Supreme Court, stated, "The purpose of the equal protection clause of the Fourteenth Amendment [U.S.C.A. Const.] is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents."

In Concordia Fire Insurance Co. v. Illinois, 292 U.S. 535, 545, 54 S. Ct. 830, 834, 78 L. Ed. 1411, Mr. Justice Van Devanter stated, "Whether a state statute is valid or invalid under the equal protectionm clause of the Fourteenth Amendment [U.S.C.A. Const.] often depends on how the statute is construed and applied. It may be valid when given a particular application and invalid when given another." See also Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, and People ex rel. Doyle v. Atwell, 232 N.Y. 96, 102, 103, 133 N.E. 364, 367, wherein Cardozo, J., stated, "The mayor refused a permit, it is said, because the applicants were Socialists. If that is so he was guilty of a grave abuse of power."

The appellants contend that the ordinance does not concern itself with speech at all and does not attempt to regulate what may or may not be said at public meeting; that it was designed merely to regulate the manner in which the streets and public places of the city might be used. The appellants argue this is a valid exercise of the police power and does not infringe or abridge any of the constitutional rights of the appellees. This is really the contention that the ordinance is valid and constitutional upon its face, a contention which we have dealt with in an earlier part of this opinion. It is obvious that whether the ordinance be valid upon its face or otherwise, none the less it has been used by the authorities of Jersey City for abridging the rights of free speech and free assembly.

The findings of fact made by the trial judge upon this phase of the case are supported fully by the evidence and the injunctive relief sought by the appellees was properly granted to them.

As to the Defense of Unclean Hands Advanced by the Appellants.

The appellants urge that the appellees are not entitled to the injunctive relief granted them because they come into court with unclean hands. This contention is controverted by the express finding of the trial court that there was no competent proof that the appellees had so conducted themselves as to forfeit the protection of a court of equity. Our conclusions are substantially similar to those of the trial judge. We think that an American community, devoted to American principles, cannot exist upon the terms offered by the appellants. Minorities, however unpopular, must be allowed to make their voices heard and the whipping up of public indignation and public clamor to the end that free expression of opinion and free assembly may not be had sits with little grace upon the officials of an American city. Fundamental civil liberties must not be tampered with if our system of democratic government is to survive.

We do not find the appellees guilty of having unclean hands.

As to the Enforcement of the Dccree.

The appellants contend that it is not feasible for the court below to enforce the provisions of the decree entered by it and that therefore it should not have been made. Giles v. Harris, 189 U.S. 475, 23 S. Ct. 639, 47 L. Ed. 909. More specifically, the appellant's contention is that it would require the court below to exercise supervisory powers over the administration of government in Jersey City and to interfere with the orderly exercise of governmental duties. The appellants also contend that the court below has in effect constituted itself an ordinance making body and has involved itself directly in the administration of the public business of Jersey City.

We consider these objections to the decree to be without merit and consider it unnecessary to treat them in detail. We state that in our opinion the decree is enforcible and does not substitute the will of the court for that of the governing authority of Jersey City. Moreover, the decree is carefully worded. The police are left free to pursue the duties placed upon them by law, and in so far as they act within the scope of the law their activities are in no wise interfered with or hindered. The authorities of Jersey City, by the terms of the decree carefully drawn by the court below, are free to carry out their duties in respect to preserving the safety of the lives and property of the inhabitants of Jersey City within the structure of existing law.

In our opinion, however, paragraph 4(d) of the decree requires modification in that it enjoins the appellants from enforcing their deliberate policy of forbidding the appellees or their sympathizers to hold meetings upon the public streets or places of Jersey City other than parks, "unless and until" the appellants, acting in their official capacities, adopt and enforce a deliberate policy of forbidding meetings of any kind upon the streets or public places of Jersey City, other than parks. For the reasons heretofore stated it is our opinion that the clause of paragraph (d) beginning with the word "and" in the seventh line thereof and ending with the word "City"*fn2 in the twelfth line thereof should be stricken from the injunction, enlarging it as will appear.

As to the Questions of Jurisdiction.

Much of the argument of counsel and of the briefs of the parties has been devoted to the question of whether there was jurisdiction of the cause in the court below. In our opinion the issue of jurisdiction must be resolved in favor of the appellees, not only under the provisions of Section 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1), but also under the provisions of subsection 14 of that section, 28 U.S.C.A. § 41(14). We will deal first with the last mentioned but more vital section.

As to Jurisdiction Under Section 24(14) of the Judicial Code.

The appellants contend that the fundamental civil rights here in issue were brought into the American Colonies from England and therefore antedated the adoption of the Federal Constitution.They also contend that these rights were not secured to citizens of the United States by the Constitution in the sense that they were created in the first instance by that instrument. It follows therefore, contend the appellants, that the court below did not have jurisdiction of the cause at bar under the provisions of Section 24(14) of the Judicial Code, 28 U.S.C.A.§ 41(14), because that subsection relates only to rights "secured by the Constitution" i the sense the appellants have indicated, while the rights sub judice were not secured to the appellees by the Constitution in that sense.

The appellants refer to the right of freedom from unreasonably searches and seizures and state that it is elementary that this right granted by the Fourth Amendment is protected by that Amendment only against abridgment by the Federal government. The appellants point out that because the right to be free of unreasonable searches and seizures is set forth in the Bill of Rights, it is proven that this right existed in the states prior to the adoption of the Constitution.

This is of course true and it is elementary that the Bill of Rights was designed as a curb upon the power of the Federal government which it was feared might encroach upon the rights of the states. We are unable to perceive any reason, however, why the right to be free from unreasonable searches and seizures set forth in the Fourth Amendment should not stand upon a parity today with freedom of religion, of speech, of the press and of assembly as guaranteed by the First Amendment. All of these rights are of equal importance to the individual and in our opinion they stand as pari materia.

Liberty of the person, including freedom of locomotion, is, as we have seen, one of " * * * the privileges or immunities of citizens of the United States * * * " protected by the Fourteenth Amendment against abridgment by the states. Among those rights and liberties of which the states may not deprive the individual under the due process clause of that Amendment are freedom of speech, Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484, and freedom of the press, Gitlow v. New York, supra. In our opinion freedom from unreasonable searches and seizures is included as well.

These fundamental civil rights were secured to the individual against infringement by the Federal government by the First and Fourth Amendments. In a very real sense thus they became privileges of Federal citizenship. Consequently they are among the privileges of citizens of the United States as distinguished from those appertaining purely to state citizenship and are privileges which no state may abridge under the Fourteenth Amendment. Protected from abridgment by the Federal government by the First and Fourth Amendments, they are protected from abridgment by the states by the Fourteenth Amendment. See Colgate v. Harvey, supra, at page 428, 56 S. Ct. at page 258, wherein it was stated by Mr. Justice Sutherland, " * * * a state cannot, under the Fourteenth Amendment, [U.S.C.A. Const.] abridge the privileges of a citizen of the United States, albeit he is at the same time a resident of the state which undertakes to do so. * * * " See also the Slaughter House Cases, 16 Wall. 36, 79, 21 L. Ed. 394, in which Mr. Justice Miller described the right of peaceful assembly as a rivilege of citizens of the United States. It follows therefore that the fundamental civil rights secured to citizens of the United States by the First and Fourth Amendments are secured in the sense of being protected or guaranteed against interference by State action by the Fourteenth Amendment.

To discuss now the specific statutes under which jurisdiction is invoked in the suit at bar, R.S. 1979, 8 U.S.C.A. § 43, provides that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Section 24, subdivision fourteenth of the Judicial Code, 28 U.S.C.A. § 41(14), gives the district courts of the United States original jurisdiction, without regard to the amount in controversy, " * * * of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States." These provisions were brought forward from Section 1 of the Act of April 20, 1871, c. 22, 17 Stat. 13, 8 U.S.C.A. § 43 note, entitled "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes." It is clear therefore that they refer to the civil rights secured by the Fourteenth Amendment, including those fundamental rights which are involved in this suit. See Holt v. Indiana Manufacturing Co., 176 U.S. 68, 20 S. Ct. 272, 44 L. Ed. 374.

Since the statutory provisions set out above were enacted originally to enforce recognition by the states of the civil rights secured by the Fourteenth Amendment and in view of the fact that the civil rights to which the Fourteenth Amendment affords protection are secured by it only in the sense of being protected or guaranteed against invasion by the states, we think that it is entirely clear that Section 24(14) of the Judicial Code uses the phrase "secured by the Constitution" in that sense which is its plain and ordinary meaning, viz., to put beyond hazard of losing.

In the case of Smith v. United States, 8 Cir., 157 F. 721, decided in 1907, a contention similar to that of the appellants was made in respect to the interpretation of rights under the Thirteenth Amendment, U.S.C.A. Const., by the defendants with regard to the jurisdiction of a district court of the United States to try them upon an indictment which charged them with conspiracy to place negroes in a condition of involuntary servitude. Freedom from involuntary servitude is as important as, and bears a status precisely similar to, freedom of religion, of speech and of the press. The Circuit Court of Appeals for the Eighth Circuit demolished the argument. Judge Adams stated, pages 724, 725, "A complete answer to defendants' contention is afforded by the fact that the statute*fn3 protects a right 'secured' by the Constitution and laws; not one originating in, created, or granted by them. * * *

"A right which has been conferred by law is manifestly secured by that law. Such concession, however, is no authority for the contention that a right secured by law must necessarily have been conferred by some law."

But if we were of the opinion that the words used in the statute "secured * * * by the Constitution" mean created in the first instance by the Constitution we would still be compelled to hold that these rights were secured by the Constitution since, as we have seen, they were secured in that sense to the people of this country by the First and Fourth Amendments which conferred these rights upon citizens of the Federal government and protected them against infringement by that government.

Consequently it follows that upon either view, since the suit at bar was brought to secure the protection and enforcement of rights of which the appellees had been deprived by the appellants, it was authorized by R.S. § 1979, quoted above, and the District Court had jurisdiction of the cause by virtue of the provisions of Section 24(14) of the Judicial Code.

As to Jurisdiction under Section 24(1) of the Judicial Code.

We are of the opinion that the court below also had jurisdiction of the cause under the first subdivision of Section 24 of the Judicial Code, 28 U.S.C.A. § 41(1), which provides that the District Courts of the United States shall have original jurisdiction " * * * of all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States * * * ". It is obvious that the suit at bar arises under the Fourteenth Amendment and the only question which remains to be determineed is the value of the matter in controversy.

As we have seen, the suit involves the deprivation of civil rights. R.S. §§ 1979 and 1980, 8 U.S.C.A. §§ 43, 47, give to the individuals thus deprived a right of action at law. Irrespective of these statutes, however, a right of action in the individual for damages for loss of political rights existed at common law. Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759. Such an action sounds in tort and the jury may award exemplary or punitive damages. Barry v. Edmunds, 116 U.S. 550, 6 S. Ct. 501, 29 L. Ed. 729; Wiley v. Sinkler, 179 U.S. 58, 21 S. Ct. 17, 45 L. Ed. 84. In such an action the jurisdictional sum is to be determined by the amount claimed by the plaintiff in his complaint or declaration, Hulsecamp v. Teel, Fed.Cas. No. 6862, 2 Dall. 358, 1 L. Ed. 414; Wiley v. Sinkler, supra, including an amount claimed by way of punitive damages, Ragsdale v. Rudich, 5 Cir., 293 F. 182, unless it appears from the complaint or declaration that it is not possible for the plaintiff to recover the amount claimed or that the amount is claimed fraudulently in order to create jurisdiction in the court. Smithers v. Smith, 204 U.S. 632, 27 S. Ct. 297, 51 L. Ed. 656. This rule applies as well to suits in equity. Maurel v. Smith, D.C., 220 F. 195.

In the suit at bar the amount in controversy is to be determined by the value of the civil rights of which the appellees were deprived in the past and which are threatened with loss in the future. The value is to be measured by the amount of damages which might be recovered by the appellees in an action at law. In the bill of complaint the appellees aver that the amount in controversy exceeds $3,000, exclusive of interest and costs. The court below found that the rights of the appellees and of each of them which had been abridged or destroyed by the appellants had a value to each appellee in excess of $3,000, exclusive of interest and costs. This was in effect a finding by the court that each of the appellees might have recovered such a sum in damages for each deprivation of a right. It was also the equivalent of a finding that the amount claimed by the appellees to be in controversy was averred by them in good faith.

In our opinion the court below would not have been justified in holding otherwise. Wiley v. Sinkler, supra. Its finding is precisely similar to that of a jury in an action for damages brought to redress the deprivation of civil rights and was not required to be based on specific evidence as to the value but rather upon the trial judge's own knowledge and opinion as to the value and as to the exemplary or punitive damages which might be reasonably awarded. Wayne v. Venable, 8 Cir., 260 F. 64.

As to the Capacity of Certain of the Appellees to Maintain the Action at Bar.

The appellants contend that because one of the appellees is a corporation and others are unincorporated associations they are not entitled to enjoy some of the civil rights which are the subject of the suit. All of the appellees referred to however are membership corporations or associations and it clearly appears that the suit was brought by them for the benefit of their members. In our opinion these appellees were proper parties and able to conduct the suit in representative capacities on behalf of the interests of their respective members. International News Service v. Associated Press, 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293.

As to the Contention That the Actions of the Appellants Did Not Constitute State Action.

The appellants also contend that their actions complained of by the appellees did not constitute action by the State of New Jersey within the prohibition of the Fourteenth Amendment. The acts enjoined by the court below were of three types: (1) acts pursuant to the express mandate of city ordinances found to be void on their face; (2) acts carried on under color of city ordinances discriminatively and therefore unconstitutionally applied; and (3) acts not under the authority of any ordinance or statute but committed under color of municipal office and as part of a deliberate munincipal policy.

As to the first class, we entertain no doubt but that the appellants' acts constituted action by the state since an ordinance adopted by a city under authority of state legislation*fn4 has been held to be an act of the state within the meaning of the Fourteenth Amendment.New Orleans Water-Works Co. v. Louisiana Sugar Refining Co., 125 U.S. 18, 8 S. Ct. 741, 31 L. Ed. 607. The actions of the appellants in the second category must be held likewise to be state actions. fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 46 s.Ct. 331, 70 L. Ed. 664. Indeed, there is no doubt that the provisions of the Fourteenth Amendment guaranteeing equal protection of the law are violated if, as the court below found in the case at bar, municipal officers failed systematically to enforce an ordinance equally against all the members of the class affected by it. Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 52 S. Ct. 48, 76 L. Ed. 146. The third category of acts must also be held to be the acts of the State within the meaning of the Fourteenth Amendment. Ex parte Virginia, 100 U.S. 339, 25 L. Ed. 676; Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 33 S. Ct. 312, 315, 57 L. Ed. 510. As Chief Justice White said of the Fourteenth Amendment in the case last cited, "It provides, therefore, for a case where one who is in possession of state power uses that power to the doing of the wrongs which the Amendment forbids, even although the consummation of the wrong may not be within the powers possessed, if the commission of the wrong itself is rendered possible or is efficiently aided by the state authority lodged in the wrongdoer. That is to say, the theory of the Amendment is that where an officer or other representative of a state, in the exercise of the authority with which he is clothed, misuses the power possessed to do a wrong forbidden by the Amendment, inquiry concerning whether the state has authorized the wrong is irrelevant, and the Federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result of his exertion of power."

As to the Adequacy of the Appellees' Remedy at Law.

The appellants contend that the appellees have a full and adequate remedy at law and that therefore the causes of action set upon in the bill of complaint are not cognizable in equity. In our opinion this contention cannot be sustained. The record clearly shows a shocking and constant disregard of the basic civil rights of the appellees by the appellants. These acts were torts and their threatened continuance is sufficient ground for the equitable relief sought and granted. Terrace v. Thompson, 263 U.S. 197, 214, 44 S. Ct. 15, 68 L. Ed. 255; Walla Walla v. Walla Walla ...

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