Hurwitz v. Boyle

• Decision Date: 29 November 1971
• Citation: 284 A.2d 190,117 N.J.Super. 196
• Parties: Ernest HURWITZ et al., Plaintiffs-Appellants, v. J. William BOYLE et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 196

117 N.J.Super. 196

284 A.2d 190

Ernest HURWITZ et al., Plaintiffs-Appellants, v. J. William BOYLE et al., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Nov. 16, 1971.

Decided Nov. 29, 1971.

Robert I. Ansell, Asbury Park, for appellants (Anschelewitz, Barr, Ansell & Bonello, Asbury Park, attorneys; Robert I. Ansell, Asbury Park, on the brief).

Jerry Sokol, Freehold, for respondents.

Before Judges KILKENNY, LABRECQUE and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

Plaintiffs appeal from a denial of their motion for summary judgment to declare invalid ordinance No. 562 of the Borough of Freehold known as 'Parade Ordinance for the Borough of Freehold.' The trial court held certain specific sections invalid and declared the balance of the ordinance valid. Thereafter the borough passed an amendatory ordinance in accordance with the trial court's ruling. We consider the ordinance as amended.

Plaintiffs argue that the ordinance violates due process and is void (1) for substantive vagueness in that it sweeps too broadly and brings within its terms totally innocent and constitutionally protected activity; (2) for procedural vagueness in that it fails to give fair and adequate notice to the citizenry of the activity which it intends to prohibit and the requirements necessary to avoid criminal liability, and (3) in that it constitutes a prior restraint on freedom of speech, assembly and the right to petition the government and fails to provide specific procedural safeguards prior to implementation of final action of the governing body. Plaintiffs further argue that the ordinance violates the provisions of the United States Constitution and the New Jersey Constitution providing for freedom of speech, freedom of assembly and the right to petition the government.

In section II the ordinance defines 'parade' as 'any parade, march, ceremony, show, exhibition, pageant, procession of any kind, or any similar display in or upon any street, park, or other public place in the Borough of Freehold.'

Section III prohibits any parade unless a permit has been obtained from the municipality. Among the exceptions are funeral and wedding processions, a governmental agency acting within the scope of its function, and students participating in educational activities under the authorization of the proper school authorities of the borough. This section also establishes a two-dollar fee for the issuance of a permit.

Section IV sets forth the contents of the application for a permit and provides for its filing at least 20 days before the scheduled date of the parade.

Section V provides that a permit Shall issue upon a finding that:

(a) The conduct of the parade will not substantially interrupt the safe and orderly movement of other traffic contiguous to its routes;

(b) The conduct of the parade will not require the diversion of so great a number of police officers of the Borough of Freehold to properly police the line of movement and the area contiguous thereto as to prevent normal police protection of the Borough of Freehold;

(c) The conduct of such parade will not require the diversion of so great a number of ambulances as to prevent normal ambulance service to portions of the Borough of Freehold other than that to be occupied by the proposed line of march in areas contiguous thereto;

(d) The concentration of persons, animals and vehicles at assembly points of the parade will not unduly interfere with the proper fire and police protection of or ambulance service to areas contiguous to such assembly areas;

(e) The conduct of such parade will not interfere with the movement of fire fighting equipment enroute to a fire;

(f) (Deleted by amendment.)

(g) The parade is scheduled to move from its point of origin and to its point of termination expeditiously and without unreasonable delays enroute;

(h) The parade is not to be held for the sole purpose of advertising any product, goods or event, and is not designed to be held purely for private profit.

Section VI provides:

If the Mayor and Council shall approve the applicant, they shall mail to the applicant at least five days prior to the date of the parade, a notice of their action. In the event that such application shall not be approved, like notice shall be sent at least five days prior to the date of such parade setting forth the reason for such denial of the permit.

Section VII provides:

(a) The Mayor and Council in denying any application for a parade permit shall be empowered to authorize the conduct of the parade on the date, at a time or of a route different than that named by the applicant. Any applicant desiring to accept an alternate permit, shall within three days after notice of the action of the Mayor and Council file a written notice of acceptance with the Borough Clerk. An alternate parade permit shall conform to the requirements of, and shall have the effect of a parade permit under this Ordinance.

(b) The Mayor and Council shall be prohibited from the approving of more than one parade permit for any one 24 hour period. Where there is more than one parade application for the same date, the application received first in time will be granted the parade permit provided all the conditions of the ordinance are complied with.

(c) The engaging in, participating in, aiding, forming or starting any parade before 1:30 P.M. on Sunday shall be prohibited.

The other section to which objection is made is section XIV which provides:

The Mayor and Council shall have the authority to revoke a parade permit issued hereunder upon application of the Standards for Issuance as herein set forth. It shall be a ground for revocation when any such application shall fail to contain all the contents as set forth under Section IV and other Sections of this Ordinance.

Section XV fixes as penalty for a violation of the ordinance 'a fine of not more than $200.00 or imprisonment in the county jail for a term not exceeding thirty days or both.'

Plaintiffs' attack is primarily based on the argument that the ordinance inhibits freedom of speech. The rights of free speech do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order. The control and government of travel on the streets is a clear example of governmental responsibility to insure this necessary order. 'A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.' Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471, 484 (1965); Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049, 1052--1053 (1949).

While the First Amendment does not afford the same kind of freedom to those communicating ideas by conduct such as patrolling, marching and picketing on streets and highways as afforded to those communicating by 'pure speech,' such conduct may nonetheless constitute methods of expression entitled to First Amendment protection. See Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, Supra, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The constitutional right of free speech and assembly cannot be abridged simply because others may take offense at what is being said or advocated and create a disturbance. See Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 1314, 25 L.Ed.2d 570, 574 (1970); Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572, 585 (1969); Cox v. Louisiana, Supra, 379 U.S. at 550--551, 85 S.Ct. 453; Edwards v. South Carolina, Supra, 372 U.S. at 237--238, 83 S.Ct. 680; Terminiello v. Chicago, 337 U.S. 1, 4--5, 69 S.Ct. 894, 896, 93 L.Ed. 1131, 1134--1135 (1949).

Plaintiffs concede that a municipality has the right and duty to regulate and control traffic on its streets.

It is our duty to construe the ordinance to render it constitutional if such a construction is reasonably susceptible. State v. Profaci, 56 N.J. 346, 350, 266 A.2d 579 (1970); Camarco v. Orange, 116 N.J.Super. 531, 283 A.2d 122 (App.Div.1971).

The activity that the ordinance seeks to control is a parade in the usual sense of the word. We construe 'parade' as used in section II of the ordinance to mean what is generally understood to be a parade, I.e., a large group of persons with or without animals or vehicles in a public procession or march in or...