Today in history: free-speech victory for leafleters nationwide

Tuesday, November 22, 2011

More than 70 years ago today, the U.S. Supreme Court ruled that four ordinances from different cities across the county violated fundamental First Amendment freedoms.

The Court had consolidated four cases that involved a similar issue — the power of city officials to limit the distribution of handbills on city streets. The cities or towns were:

  • Los Angeles, which had a broad ordinance that prohibited the distribution of any handbills on “any street, sidewalk or park”;
  • Milwaukee, which had an ordinance that prohibited the distribution of “any circular, hand-bills, cards, posters, dodgers or other printed or advertising matter … in or upon any sidewalk, street, alley, wharf, boat landing, dock or other public place, park or ground within the City”;
  • Worcester, Mass., whose law said, “No person shall distribute in, or place upon any street or way, any placard, handbill, flyer, poster, advertisement, or paper of any description”; and
  • Irvington, N.J., which had an ordinance a little different from the other three that prohibited individuals from distributing circulars or soliciting door-to-door without receiving a written permit from the police chief.

The four cases involved individuals advocating different causes. The leafleter in the Los Angeles case was distributing notice of a meeting of the “Friends Lincoln Brigade” to discuss the war in Spain. The Milwaukee case involved an individual who was picketing a meat market. The Worcester case involved several individuals who were announcing a protest about state unemployment insurance. The Irvington case involved a Jehovah’s Witness who wanted to proselytize door-to-door.

The cases were consolidated before the U.S. Supreme Court, and on Nov. 22, 1939, the high court ruled 8-1 in favor of the handbillers, pamphleteers, picketers and Jehovah’s Witnesses in Schneider v. New Jersey.

Writing the opinion for the Court, Justice Owen Roberts first addressed the ordinances in Los Angeles, Milwaukee and Worcester, which imposed flat bans on distributing handbills. The cities had justified the ordinances on anti-littering grounds. Roberts, however, found this argument lacking.

“We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it,” he wrote. “There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the street.”

Roberts then addressed the Irvington law, which required people to obtain a police permit before going door-to-door. “To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees,” he explained. He noted that the ordinance would give too much discretion to the police chief to determine which permits to grant or deny.

Only Justice James R. McReynolds disagreed, but he did not write a separate opinion explaining the reason for his dissenting vote.

The consolidated cases collectively known as Schneider v. New Jersey established a ringing victory for First Amendment freedoms, rejecting flat bans on the distribution of materials, prior restraint through permitting schemes and unbridled discretion by government officials to favor some speakers over others.

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