Poulos v. New Hampshire, 345 U.S. 395 (1953)

MR. JUSTICE BLACK, dissenting.

The Court’s holding in this case is one more in a series of recent decisions which fail to protect the right of Americans to speak freely. I join MR. JUSTICE DOUGLAS’ forceful dissent, and wish to add only a few words.

I agree with the Court that the validity of the speech licensing phase of this New Hampshire law was not upheld in Cox v. New Hampshire, 312 U.S. 569. That case merely recognized that the power of a state to regulate streets for traffic purposes carried with it a right to regulate street parades.{1} Nothing said there indicated that a state’s power to regulate traffic carried with it a right to censor public speeches or speakers merely because the state did not wish certain speakers to be heard. Here, the record shows beyond doubt that objection to Poulos’ talking was not rooted in a permissible regulation as to the time and place street or park speeches could be made. For the New Hampshire Supreme Court tells us that its officials "arbitrarily and unreasonably" refused to grant Poulos a "license" to talk. This shows that the State’s speech licensing officials actually denied Poulos his constitutional right of free speech.{2} The Court now holds Poulos can be branded a criminal for making a talk at the very time and place which the State Supreme Court has held its licensing officials could not legally forbid. I do not challenge the Court’s argument that New Hampshire could prosecute a man who refused to follow the letter of the law to procure a license to "run businesses," "erect structures," "purchase firearms," "store explosives," or, I may add, to run a pawnshop. But the First Amendment affords freedom of speech a special protection; I believe it prohibits a state from convicting a man of crime whose only offense is that he makes an orderly religious appeal after he has been illegally "arbitrarily and unreasonably" denied a "license" to talk. This, to me, is a subtle use of a creeping censorship loose in the land.

1.

They [appellants] were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, or for maintaining or expressing religious beliefs. Their right to do any one of these things apart from engaging in a "parade or procession" upon a public street is not here involved, and the question of the validity of a statute addressed to any other sort of conduct than that complained of is not before us.

Cox v. New Hampshire, 312 U.S. 569, 573.

2. In the Superior Court, Poulos took the position that the city council’s refusal to "license" him to speak was "arbitrary and unreasonable" and in violation of the right freely to assemble, speak and worship guaranteed by the First and Fourteenth Amendments. The State Supreme Court affirmed the Superior Court’s holding that the council’s refusal was arbitrary and unreasonable.