Com. v. Dubin

• Decision Date: 12 September 1951
• Citation: 327 Mass. 681,100 N.E.2d 843
• Parties: COMMONWEALTH v. DUBIN. COMMONWEALTH v. JONES. COMMONWEALTH v. MENDELSOHN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 843

100 N.E.2d 843

327 Mass. 681

COMMONWEALTH v. DUBIN.

COMMONWEALTH v. JONES.

COMMONWEALTH v. MENDELSOHN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 8, 1951.

Decided Sept. 12, 1951.

J. F. McAuliffe, Asst. Dist. Atty, Boston, for Commonwealth.

D. Holmes, Boston, for defendants.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and WILLIAMS, JJ.

QUA, Chief Justice.

These are three complaints for alleged violation of Rule 3 of the rules governing reservations under control of the metropolitan district commission, see G.L. (Ter.Ed.) c. 92, § 37, by displaying certain signs and other advertising. The material portion of Rule 3 reads, 'No person shall * * * post, paint, affix, distribute or display any sign, notice, circular, program, placard or any other advertising device; * * *.'

There was evidence that on the afternoon of July 23, 1950, the three defendants, with from fifteen to seventeen other persons, assembled on Revere Beach Reservation within the metropolitan park district and occupied an area of about fifty square feet, ¹ within which area the group had posted signs attached to sticks embedded in the sand. Four of the signs were on cloth eight feet by fourteen inches and were about five feet above the ground. Six of the signs were on cardboard twenty-four inches by thirty inches. On the signs were printed these words, 'We Want Peace'; 'Homes and Schools not Atomic Bombs'; 'Support the International Red Cross Peace Proposal'; 'Outlaw the Atom Bomb'; 'We Want to Grow up in a World at Peace'; 'Young Progressives of America.' There was evidence that there was some inconvenience to the public in moving across the area, but that there was 'no unrest or commotion at the scene,' although the beach was crowded. There was also evidence of admissions by the defendants that they posted or assisted in posting some of the signs.

The fundamental question in the case is whether so much of Rule 3 as prohibits the display of any sign is unconstitutional on its face as an infringement upon the right of free speech as guaranteed by the Fourteenth Amendment under the rule established by recent decisions of the Supreme Court of the United States and followed in our own decisions. We are of opinion that it is.

The part of Rule 3 here involved attempts a complete and sweeping prohibition of the display of any sign or other advertising device in what is substantially a public park where all persons have a right to go. The rule cannot fairly be construed as limited to commercial advertising. See Commonwealth v. Kimball, 299 Mass. 353, 356, 13 N.E.2d 18, 114 A.L.R. 1440. It is not aptly and narrowly phrased to protect the public from annoyance or danger or to protect public property. It does not merely regulate the size or position of signs. It seeks to prohibit altogether in a public place one of the common and normally harmless means of communicating ideas. It therefore falls within the scope of the decisions in Commonwealth v. Pascone, 308 Mass. 591, 33 N.E.2d 522, and Commonwealth v. Gilfedder, 321 Mass. 335, 73 N.E.2d 241. See Commonwealth v. Akmakjian, 316 Mass. 97, 101-102, 55 N.E.2d 6; Kenyon v. City of Chicopee, 320 Mass. 528, 531, 70 N.E.2d 241, 175 A.L.R. 430; Commonwealth v. Carpenter, 325 Mass. 519, 91 N.E.2d 666. These cases contain...