"For the legislature absolutely or conditionally 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." — Davis v. MassachusettsFurthermore, the legislature could delegate this authority. Under the right circumstances, a mayor could have the power to grant or deny permits to speak in public according to his individual whim. This was the policy until 1939 when another Supreme Court case radically changed the situation in favor of free speech rights.
The Boss of Jersey City
Frank Hague, a very unscrupulous character, used his power as mayor of Jersey City to deny a certain organization any access to public meeting spaces or permission to hand out literature in public. This group was the Committee for Industrial Organization (CIO). Why silence the CIO? As you might have guessed by their name, the CIO was a labor organization. They were trying to inform workers of their new rights under the 1935 National Labor Relations Act. I suspect Mayor Hague saw any political competition as a threat to his regime.
Lower courts found the city's actions unconstitutional. The case was brought before the Supreme Court which, surprisingly, agreed. We wouldn't consider this surprising now-days, but remember the precedent set by Davis which I quoted above.
Even stranger: Davis v. Massachusetts itself was not questioned; the Court decided that it didn't apply!
"The ordinance there in question apparently had a different purpose from that of the one here challenged, for it was not directed solely at the exercise of the right of speech and assembly, but was addressed as well to other activities, not in the nature of civil rights, which doubtless might be regulated or prohibited as respects their enjoyment in parks. In the instant case the ordinance deals only with the exercise of the right of assembly for the purpose of communicating views entertained by speakers, and is not a general measure to promote the public convenience in the use of the streets or parks.I find this extremely disingenuous. While it's true that the ordinance in Davis was broader than speech issues— it banned firing canons in the city, for example — the focus of Davis was preaching in a public park without a permit. The lesson, apparently, is that any law which mixes constitutional and unconstitutional elements is...constitutional?
We have no occasion to determine whether, on the facts disclosed, the Davis Case was rightly decided, but we cannot agree that it rules the instant case." — Hague v. CIO
Justice Butler was also bewildered. He wrote in his dissent to Hague:
"I am of opinion that the challenged ordinance is not void on its face; that in principle it does not differ from the Boston ordinance, as applied and upheld by this Court, speaking through Mr. Justice White, in Davis v. Massachusetts[....]"Much as I like the outcome to Hague, I agree with Justice Butler that it makes no sense in light of Davis.
The New Old Way
If a person doesn't like the way things are going, it's easier to justify a change by dressing it up in talk of "tradition." And if recent tradition goes the opposite way, ancient tradition is preferable. Vague ancient tradition is best of all!
"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." — Hague v. CIOIn other words, the Court wanted to allow authorities to keep order in the streets, but not to suppress unwanted ideas on the false pretext of keeping order. This is the beginning of what has come to be called public forum doctrine. At this point, only public streets and parks are covered, and the only permissible restrictions have to do with maintaining general convenience and order. Things will become more complex from here, as I'll detail in future posts.