Committee for Industrial Organization v. Hague

• Decision Date: 27 October 1938
• Citation: 25 F. Supp. 127
• Parties: COMMITTEE FOR INDUSTRIAL ORGANIZATION et al. v. HAGUE, Mayor, et al.
• Court: U.S. District Court — District of New Jersey

25 F. Supp. 127

COMMITTEE FOR INDUSTRIAL ORGANIZATION et al. v. HAGUE, Mayor, et al.^*

District Court, D. New Jersey.

October 27, 1938.

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Spaulding Frazer, of Newark, N. J. (David Stoffer, of Newark, N. J., Morris L. Ernst, Lee Pressman, Benjamin Kaplan, and Harriet F. Pilpel, all of New York City, of counsel), for plaintiffs.

James A. Hamill, of Jersey City, N. J. (John A. Matthews, of Newark, N. J., and Charles Hershenstein, Edward J. O'Mara, Joseph C. Glavin, and Charles A. Rooney, all of Jersey City, N. J., of counsel), for defendants.

CLARK, District Judge.

This case seeks the solution of a problem inevitable and inherent in a democratic form of government. Upon its sound solution the preservation of that form of government may well be said to depend. For that reason we repeat the hope, expressed at the trial, that this opinion will prove only an indistinct sign-post on the road to the ultimate wisdom of the highest tribunal. We spoke of seeking a solution advisedly. We are going to assume, or should we say presume, that both parties to the litigation are convinced that their opposing points of view are in the interest of that democracy we are sure both believe in. Any contrary assumption, or presumption, depends for its validity upon psychological factors difficult of determination and of no help in arriving at a conclusion. So we disregard the spasmodic spirit evinced by such respective trial amenities as "tin-pot Hitler" and "busybodies" (as the merchant said of the fire engines). As in many matters of political science there exists a necessity for balance and a consequent inability to agree as to the proper adjustment of the scales. The committee which prepared the learned and interesting discussions in anticipation of the recently held convention for revision of the New York Constitution puts it thus:

"Quite apart from the previous considerations, there is an inherent difficulty in defining the proper scope of freedom to speak, to publish and to assemble. The difficulty arises from the fact that speech, publication and assembly of some sorts, occurring under some circumstances may lead to undesirable consequences. These consequences may be sufficiently undesirable and the probability that they will occur sufficiently high to justify action by the State which is addressed to preventing the speech, publication or assembly which creates such danger." 151, "* * * The difficulty lies in the multiple variations that may occur between the extremes." 152. Vol. 6, Problems Relating to Bill of Rights and General Welfare, New York State Constitutional Convention Committee, 1938.

And similarly Professor Chafee, Freedom of Speech and Eliel Freedom of Speech During and Since the Civil War, 18 American Political Science Review, 712:

"The true meaning of freedom of speech seems to be this. One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion, for, as Bagehot points out, once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advantage in the contest. Nevertheless, there are other purposes of government, such as order, the training of the young, protection against external aggression. Unlimited discussion sometimes interferes with these purposes, which must then be balanced against freedom of speech, but freedom of speech ought to weigh very heavily in the scale. The First Amendment gives binding force to this principle of political wisdom." Chafee, p. 34.

"There is also a social interest in free speech as a guarantee of political efficiency and an instrument of progress; and this social interest must be balanced against the social interests in repression. * * * Another doctrine for the interpretation of the use abuse-theory, the test of clear and immediate danger is suggested in determining which, not only the words uttered, but the situation in which they are uttered must be considered. * * * Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command." Eliel, p. 734-735.

We think the mere statement of the question acquits our opening sentences of pompousness or exaggeration. The City of Jersey City, through its appropriate elective officials the Mayor and Commissioner of Public Safety, has adopted a deliberate policy. It has not been necessary to seek for proof of that policy in the usual unsatisfactory process of weighing the conflicting testimony of witnesses or in the even more unsatisfactory study of counsel's conflicting interpretations of that testimony. In fact, the only exception to this pleasant posture of the litigation lies in the rather unsuccessful attempts of counsel to cut the cloth of some of that testimony to their conception of the law. We say this with a full appreciation of the difficulty inherent in reconciling the views of a positive city official with the pronouncements of a powerful Supreme Court.

That deliberate policy of Jersey City is this. Certain individuals and groups of individuals (whether incorporated or not), the plaintiffs in this case, are alleged to be the kind of persons and to hold the kind of opinions to which the people of Jersey City or a majority of them are, to use a current and expressive medical term — allergic. In the practice of preventive medicine, so to speak, these individuals and groups are not permitted to come in contact with the body (politic) in which they produce the undesirable symptoms of "riot, disturbance and disorderly assemblage" (the words of the contested ordinance). In two particulars this medical metaphor breaks down. The effect of mustard, let us say, upon the human body lies in the field of physiology, an exact science, and is certain. Mustard is not protected by the Constitution. The effect of opinion upon the human mind lies in the field of psychology, not an exact science and is not certain. Opinion is protected by the Constitution. That breakdown or difference precludes the accurate answer implicit in all exact science and requires the writing of this opinion.

An analysis of the prescription of Drs. Hague (the Mayor) and Casey (The Commissioner of Public Safety) indicates five ingredients (not necessarily in equal parts, for one at least telescopes the rest). The individuals or groups diagnosed as giving rise to the alarming symptoms aforesaid are not allowed to (1) be in Jersey City, (2) express their opinions in Jersey City either to (a) those who signify their willingness to receive them by (1) accepting circulars or (2) going to privately owned meeting places or (b) those who receive them involuntarily (1) in the form of speeches made in public places or (2) placards displayed on public streets.

To turn from medicine to law: The City of Jersey City has prevented these plaintiffs, both singly and in groups, from being, moving about, and communicating their thoughts within the city limits. Do they have legally enforceable rights corresponding to these human powers? If they have such rights, what is their extent? Has the action of the defendants impinged upon that extent? Since this democracy happens to be cast in the Federal mold, our answer to these questions must be sought in some clause or clauses of a written constitution.

That there are such corresponding rights and, of course, their complimentary liberties is conceded. So in nearly all modern legal systems we find a right (or liberty) of locomotion (movement) of free speech (and press) and of free assembly. Whether these liberties should be called natural or civil has been the subject of theoretical discussion. Professor Lieber in his book entitled Civil Liberty and Self-Government gives us this definition: "Civil liberty is the idea of liberty in connection with politics, and must necessarily partake of the character of, or intertwine itself with, the whole system of politics of a given nation." Chap. 3, The Meaning of Civil Liberty, at p. 42.

The matter seems rather one of scholarly description than of constitutional significance and we may, therefore, agree with Ambassador Bryce that it is: "Enough to say that although the conception of Individual Liberty may be made to include the exemptions our ancestors contended for in the seventeenth century, and though every kind of individual liberty may be called a Civil Liberty, there is this significant difference that the Civil liberties of those older days were extorted from arbitrary monarchs, whereas what we call Individual Liberty today has to be defended, when and so far as it needs defence, against the constitutional action of a self-governing community." Modern Democracies, at p. 63. And see, also, Modern Political Constitutions, Strong, p. 34; Our Ineffective State, Hessler, p. 21; The Story of Civil Liberty in the United States, Whipple; Political Theories from Rousseau to Spencer, Dunning, p. 118.

As our particular legal system depends upon a rigid constitution, we are faced at once with its Pythias, interpretation. Mr. Justice Story pointed with pride to the fact that constitutions spoke in general terms, quoting Chief Justice Marshall in the case of Martin v. Hunter, 1 Wheat. 304, 326, 327, 4 L.Ed. 97: "The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties to provide for minute specifications * * *." Story's Commentaries, Vol. 1, 5th Ed. p. 323.

Any examination of Federal Constitutions generally demonstrates that their particularity increases in inverse proportion to their age. Real Democracy in Operation, Felix Bonjour (Swiss); Canada's Federal System, A. H. F. Lefroy; The Law of the Australian Constitution, Donald Kerr; The Law and Custom of the South...