Full opinion text
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 African Constitution, Kennedy and Schlosberg; Government of India Act, 1935, 26 Geo. 5, Ch. 2; Federations, A Study in Comparative Politics, D. G. Karve; India, A Federation, Sir Frederick Whyte, K.C.S.I.; La Constitution de la Republique Argentine, E. Rouys; American Constitutions, A compilation of the Political Constitutions of the Independent Nations of the New World, Rodriquez (International Bureau ol the American Republics, Vol. 2, July 1905). The historical fact seems to be that Mr. Justice Story’s vaunted vagueness was due rather to a distrust for any constitution than to a scientific preference for indefiniteness. Whatever the merits of the two schools of constitutional draftsmanship it is plain that the learned justice places a greater burden, or should we say benefit, of governance upon the interpreting agency. The constitutional provisions here applicable are contained in the First and Fourteenth' Amendments, U.S.C.A.Const. Amends. 1, 14, and the pertinent words are liberty, due process and free as applied to speech and assembly. Can one conceive of words more flexible in content and in more complete fulfillment of Mr. Justice Story’s ideal? Their very pliability is in fact the reason for our current capacity. The Supreme Court has recently adopted the dissent of Mr. Justice Harlan in Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879, 10 Ann.Cas. 689, and has declared that freedom of speech and assembly come within the meaning of liberty as used in the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Burns v. U. S., 274 U.S. 328, 47 S.Ct. 650, 71 L.Ed. 1077; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660, and are therefore protected against action by the states (or their agencies as here). This is a direct reversal of a doctrine, expounded in the cases from Barron v. Baltimore, 1833, 7 Pet. 243, 8 L.Ed. 672, where Chief Justice Marshall referred to the “extraordinary occupation of improving the constitutions of the several states” [page 250] to Prudential Insurance Co. v. Cheek, 1922, 259 U.S. 530, 42 S.Ct. 516, 66 L.Ed. 1044, 27 A.L.R. 27. It is not our place to comment and much less to criticize. Those who are interested are referred to the articles of Judge Shattuck and Mr. Warren, The True Meaning of the Term “Liberty” In Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty and Property”, 4 Harvard Law Review, 365 (Shattuck), The New “Liberty” Under the Fourteenth Amendment, 39 Harvard Law Review 431 (Warren) and see Bill of Rights and Fourteenth Amendment, 31 Columbia Law Review 468, Constitutional Law: Liberty of Assembly Under the Fourteenth Amendment, 25 California Law Review 496. In any event this change of position on the part of the Supreme Court is indicative of the elastic character of the interpretative function and perhaps also of our favorite theory that rigid constitutions must be construed in the light of political science. The words “liberty” and “free” are absolute in grammatical form. Are they absolute in constitutional or for that matter in any other interpretation? Mr. Lippman thinks not: “There are, so far as I can discover no absolutists of liberty; I can recall no doctrine of liberty which under the acid test does not become contingent upon some other ideal. * * * For what every theorist of liberty has meant is that certain types of behaviour and classes of opinion better regulated should be somewhat differently regulated in the future.” 124 Atlantic Monthly 616 quoted in 21 Columbia Law Review 526 at 529. If they are not absolute but conditional how must we determine the conditions: In part certainly from the history and philosophy of the concepts for which they stand. To attempt any extended exposition of either would enlarge this opinion beyond any reasonable limits and be an impertinence to those better qualified than this court. In the case of “liberty” it would be a word of supererogation because the meaning applicable to the case at bar is not in dispute. That meaning is an acknowledgment of a right of locomotion and a consequent right to freedom from restraint of the person except as a result of due legal process. It may not be amiss, however, to give some brief attention to the history and philosophy of the more controversial word free as applied to speech and assembly. As the history of free speech is the outgrowth of its philosophy the latter takes precedence. Furthermore it can best be gathered from wiser and more eloquent pens. We are arranging the quotations under headings that seem to us appropriate to the logic of the thesis. A fortiori we have included excerpts indicating dissent. A. From the point of view of the persons expressing the thought— I. The instinct for the expression of thought in human beings is as inevitable as the thought process itself: “ * * * nam nec peritissimi, ne dicam plebem, tacere sciunt. Hoc hominum commune vitium est, consilia sua, etsi tácito opus est, aliis credere.” Spinoza. Translation: “Not even the wisest can hold their tongues and it is a universal vice of men to tell their ideas to others even when silence is needful.” “For as long as human beings have tongues and minds they will say what they think and they will think differently.” Freedom of Speech During and Since The Civil War, 18 American Political Science Review 712 (Eliel), above cited. “Force in matters of opinion can do no good, but is very apt to do hurt, for no man can change his opinion when he will, or be satisfied in his reason that his opinion is false because discountenanced.” Rev. Jeremy Taylor. “The power of communicating thoughts and opinions is the gift of God, and the freedom of it is the source of all science, the first fruits and the ultimate happiness of society; and therefore it seems to follow that human laws ought not to interpose, nay, cannot interpose, to prevent the communication of sentiments and opinions in voluntary assemblies of men.” Lord Chief Justice Eyre. “Man has a right to think all things, speak all things, write all things, but not to impose his opinions.” Machiavelli. “It is not the law that is to be found in books that constitutes — that has constituted, the true principle of freedom in any country at any time. No, it is the energy, the boldness of a man’s mind which prompts him to speak not in private, but in large and popular assemblies, that constitutes, that creates in a state the spirit of freedom. This is the principle that gives life to liberty; without it the human character is a stranger to freedom.” Rt. Hon. C. J. Fox. II. So to repress it is dangerous: “Finally the most efficient of means for the preservation of the state from revolution is that which is in general the least considered — a system of education in the spirit of the constitution.” Aristotle. “Since, therefore, no one can abdicate his freedom of judgment and feeling; since every man is by indefeasible natural right the master of his own thoughts, it follows that men thinking in diverse and contradictory fashions cannot, without disastrous results, be compelled to speak only according to the dictates of the supreme power.” Spinoza. ( “But there is one only thing which gathers people into seditious commotions, and that is oppression. “There is a remedy at hand, better than force, if you and your friends will use it, which cannot but prevail; and that is, let the ministers of truth be as diligent; and they bringing truth with them, truth obvious and easy to understand, as you say what is necessary to salvation is, cannot but prevail.” John Locke. “The Épress must be free; it has always been so and much evil has been corrected by it. If Government finds itself annoyed by it, let it examine its own conduct and it will find the cause — let it amend it and it will find the remedy.” Thomas Lord Erskine. But see contra: “We lawyers, who have seen the unreliability of evidence, know the truth about truth, which is that, unsupported by the sanction of Authority, it is as little conducive to public order as a lie. To the ignorant and brawling fanatics who stir you with their pother about liberty, political or civil liberty seems to be the principal end for which government ought to exist, instead of the furtherance of the commonwealth to the greatest extent.” Austin. “Democracies which have gone fascist have gravely sinned by their leniency, or by too legalistic concepts of the freedom of public opinion. Slowly, the remaining democracies are remedying the defect. In some instances, the criminal codes are reformed in order to cope with the misuse of the press and of free speech to foster subversive propaganda or recriminations which affect the dignity of the republican and democratic institutions.” Militant Democracy and Fundamental Rights, by Karl Loewenstein, 31 American Political Science Review, 417, 638, at 652. III. And to permit it salutary: “The only security of all is a free press. The force of public opinion can not be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It keeps the waters pure.” Thomas Jefferson. “With effervescing opinions as with not yet forgotten champagnes, the quickest way to let them get flat is to let them get exposed to the air.” Mr. Justice Holmes, letter to a friend, January, 1921. “We have learned considerable from the affair and I might say that the lesson briefly is this: Street speaking should be allowed as far as possible, where it does not absolutely interfere with traffic, so as to give to an agitator the right to give vent to his feelings if he desires. It is safer to let him talk than to shut him up.” Freedom of Assemblage and Public Security, Brooks, Vol. 9, Publications of the American Sociological Society pp. 11, 12. “Pent-up volcanoes destroy far and wide when they burst their barriers, but the open crater pointed heavenward furnishes an excellent safety valve for hidden fires. Suppress social discontent, and riots follow; but allow men through their natural leaders to speak their grievances freely, through press and platform, and the very expression of them relieves the situation and becomes a method of education. We of the twentieth century are as yet such babes in knowledge, that we might far better furnish free forums at public expense, to any man or set of men who believe they have some new thing under the sun to talk about.” Discussion by J. Q. Dealey, Brown University, Vol. 9, Proceedings of the American Sociological Society, p. 42 at p. 43. B. From the point of view of the thoughts expressed— I. Truth is not absolute: “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, m a free and open encounter?” John Milton. “The opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common.” John Stuart Mill. “Evidently such proposals to limit the right of free speech, political or religious, can be defended only by making the tacit assumption that whatever political or religious beliefs are at the time established, are wholly true; and since this tacit assumption has throughout the past proved to be habitually erroneous, regard for experience may reasonably prevent us from assuming that the current beliefs are wholly true. We must recognize free speech as still being the agency by which error is to be dissipated, and cannot without papal assumption interdict it.” Herbert Spencer. “If persecution is unnecessary in the defense of truth, it has a fearful efficacy in preventing men from discovering it; and when it is so employed, as infallibility does not exist among mankind, no man can assuredly decide. For truth is scattered far and wide in small portions among mankind, mingled in every system with the dross of error, grasped perfectly by no one, and only in some degree discovered by the careful comparison and collation of opposing systems.” W. H. H. Lecky. “He that will not reason is a bigot; he that cannot reason is a fool; he that dares not reason is a slave.” Sir William Drummond. “If there is anything in the universe that can’t. stand discussion, let it crack.” Wendell Phillips. “The man who will not investigate both sides of a question is dishonest.” Abraham Lincoln. “To court discussion, is, of course, no certain proof that we are right, but to be afraid of it, is conclusive indication that we suspect at least we may be wrong.” Abraham Lincoln. But see contra: “There is nothing so true and good that skilful talkers cannot make it appear doubtful.” Bodin. II. The heterodoxy or minority of today is the orthodoxy or majority of tomorrow : “When there are persons to be found who form an exception to the apparent unanimity of the world on any subject, even if the world is in the right, it is always probable that dissentients have something worth hearing to say for themselves, and that truth would lose something by their silence.” John Stuart Mill. “In his person though he were the worst of men I contend for safety and security”. Chatham. “The community'which dares not protect its humblest and most hated member in the free utterance of his opinions, no matter how false or hateful, is only a gang of slaves.” Wendell Phillips. “But the consideration which has the most enduring weight is the weakness of our capacity for truth. So much is doubtful, so much is altogether unknown; so indolent, so timid, so careless of truth, are the mass of men; so ill-situated and so ill-provided for knowing what is true are the rulers of every state, that the public cannot be too wary in committing to a government, a government cannot be too lenient in exercising any control over the expression and diffusion of ideas. And what holds good of governments, holds good also, although in a less degree, of public opinion. * * * * * * “And as it is with the reformer, so is it with the public whom he addresses. They may dislike his projects, they may suspect his motives, but they must debate the case upon its merits. For they too must confess that out of the numberless heresies of the past their present orthodoxy has arisen. They see that their own orthodoxy was once an innovation and may come to be a relic. It is but a relative orthodoxy. It too will pass, and they cannot say for certain what will succeed it. Thus 'forced to abandon dogmatism, they must be content to cling to honesty of purpose and scientific method.” Montague. “One danger — the smaller one — yet sometimes troublesome, is the difficulty of ascertaining the will of the majority. The other danger is that minorities may not sufficiently assert themselves. Where a majority has erred, the only remedy against the prolongation or repetition of its error is in the continued protests and agitation of the minority, an agitation which ought to be peaceably conducted, carried on by voice and pen, but which must be vehement enough to arouse the people and deliver them from the consequences of their blunders.” James Bryce. III. This is particularly so in the field of political science because of— (a) The nature of the subject matter: “No good -government has anything to fear from paper shot.” Oliver Cromwell. “So true it is, however, that the discontent of the people is the only means of removing the defects of vicious governments, that the freedom of the press, the main instrument of creating discontent, is, in all civilized countries, among all but the advocates of misgovernment, regarded as an indispensable security, and the greatest safeguard of the interests of mankind.” James Mill. “It is the ancient and constitutional right of this people to canvass public measures, and the merits of public men. It is a homebred right, a fireside privilege. * * It is not to be drawn into controversy. It is as undoubted as the right of breathing the air and walking on the earth. Belonging to private life as a right, it belongs to public life as a duty. This high constitutional privilege, I shall defend and exercise in all places in time of war, in time of peace and at all times. Living, I will assert it.” Daniel Webster. “The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.” The Continental Congress of 1774. But see contra: “First, the exercise of final judgment as to the expression of opinions and doctrines. So prolific in discord is freedom of expression that the great end of civil life is ever in peril without a strict supervision of speech and writing by the supreme authority. This is Hobbes’s concise reply to the Miltonic plea for unlicensed printing.” Bodin. “Curbing the speech of the governed is one of the first measures of a government when it is ever so slightly alarmed, and except in ancient Athens no one has ventured to suggest that it is not a legitimate exercise of power.” Freedom of Speech in Ancient Athens, Max Radin,' Vol. XLVIII, American Journal of Philology, at p. 215. (1) And more especially where the specimen of that subject matter happens to be a democracy: “The sun might as easily be spared from the universe as free speech from the liberal' institutions of society.” Socrates. “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” Thomas Jefferson. “Freedom of opinion, of speech, and of the press is our most valuable privilege, the very soul of republican institutions, the safeguard of all other rights. * * * Nothing awakens and improves men so much as free communications of thoughts and feelings. “If men abandon the right of free discussion; if, awed by threats, they suppress their convictions; if rulers succeed in silencing every voice but that which approves them; if nothing reaches the people but what would lend support to men in power— farewell to liberty. The form of a free government may remain, but the life, the soul, the substance is fled.” William Ellery Channing. “Repression of full and free discussion is dangerous in any government restin'g upon the will of the people. The people cannot fail to believe that they are deprived of rights, and will be certain to become discontented when their discussion of public measures is sought to be circumscribed by the judgment of others upon their temperance or fairness.” Cooley. “The theory of ‘government requiring royalty to be invested with perfection, which forbids question or discussion, is diametrically opposed to our theory of popular government in which the utmost latitude and freedom in the discussion of business affecting the public and the conduct of those who fill positions of public trust, that is consistent with truth and decency is not only allowable but essential to the public welfare.” Storey v. People, 79 Ill. 45, at page 51, 52, 22 Am.Rep. 158, Scholfield, J. “The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” Mr. Chief Justice Waite, in U. S. v. Cruikshank, 92 U.S. 542, at page 552, 23 L.Ed. 588. “The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.” Mr. Chief Justice Hughes in De Jonge v. Oregon, 299 U.S. 353, at page 365, 57 S.Ct. 255, at page 260, 81 L.Ed. 278. (b) The unavoidably biased character of its judge (the censor) : “In other words, printing and speaking are to be subject to general rules of law, not to administrative censorship or arbitrary legislative restriction.” Equitable Relief Against Defamation and Injuries to Personality, Roscoe Pound, 29 Harvard Law Review 640, 651. “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy.” Thomas Jefferson. (c) Because of an obvious distinction between thought and action, words and deeds: “that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.” Thomas Jefferson. “The true distinction (between persecution and punishment) is. perfectly obvious. To punish a man because he has committed a crime, or is believed, though unjustly, to have committed a crime, is not persecution. To punish a man because we infer from the nature of some doctrine which he holds, or from the conduct of other persons who hold the same doctrines with him, that he will commit a crime, is persecution; and is, in every case, foolish and wicked.” Lord Macaulay. “silly leaflet of an unknown man.” Mr. Justice Holmes, dissenting opinion in Abrams v. United States, 250 U.S. 616, at page 628, 40 S.Ct. 17, at page 21, 63 L.Ed. 1173. “It is the essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the holding of opinion or to mere intent in the absence of overt acts.” Charles Evans Hughes on the ouster of the Socialist assemblyman, at Albany, New York, January, 1920. • “Our state rests too firmly upon the devotion of its citizens to require for its protection an imprisonment of five years for the mere expression of an erroneous, or even an illegal, political doctrine, unaccompanied by an overt act.” Governor Alfred E. Smith. Anything more than an outline of the history of free speech would be a pedantic display of very easily obtainable knowledge. The standard authorities in the Anglo-Saxon countries are in England, Liberty of the Press, Speech and Public Worship, Paterson; in the United States, Constitutional Free Speech, Schroeder; Freedom of Speech, Chafee; The Inquiring Mind, Chafee (the law review article quoted at some length by the learned Supreme Court of New Jersey in a recently filed opinion is to be found in Chapter 1 of Freedom of Speech, Chafee); Law of American Constitution, Chap. 13, Freedom of Religion, Press & Assembly, Burdick; The Reference Shelf, Vol. 4, Civil Liberty, Edith M. Phelps, No. 9; Freedom of the Press, Dawson; Censorship of Speech and the Press, Beman; Essays on Jurisprudence and Ethics, Sir Frederick Pollock, Chapter six, The Theory of Persecution; Proceedings of the American Sociological Society, Vol. 9, p. 67, Schofield. There are in addition a galaxy of articles in legal periodicals, the best of which in our judgment are found in: Freedom of Speech and of the Press, 2 Minn.Law Review 239; Does the Constitution Protect Free Speech, 19 Mich.Law Review 487; Power of Government Over Free Speech and the Press, 29 Yale Law Journal 410; Free Speech in War Time, 21 Columbia Law Review 526; The Courts and Free Speech, 8 Ill. Law Review 141; Freedom of Speech and the Press, 30 Yale Law Journal 48; Free Trade in Ideas, 11 Journal of the American Institute of Criminal Law and Criminology, 181; Freedom of Speech and the Espionage Act, 55 American Law Review 695; Freedom of Speech and of the Press in the Federal Period, Sedition Act, 18 Michigan Law Review 615; Freedom of Speech and of the Press, 4 Indiana Law Journal 445; Freedom of Speech During and Since the Civil War, above cited; Freedom of Speech and the Press, 21 Georgetown Law Journal 35, 161. To summarize their very thorough expositions : The problem of free speech became acute, as might be expected with the invention of and perfection of the printing press. At first as part of its policy of control over monopolies, the Crown made this new art subject to license. The advantage of such control by license as the handmaid of tyranny soon became apparent. Although not considered a liberty essential enough to be included in the Petition of Right (1628) or the Grand Remonstrance (1641), the struggle to free the printing press finally became part of the contest of the people against the Crown. This battle included, of course, a simultaneous resistance to another way of accomplishing prevention, namely, repression. So we find the agitation against the laws of seditious libel, the letters of Junius, the trial of the Printer and “that devil Wilkes”. The first controversy ended in the victory expressed in Blackstone’s pronouncement about previous restraints. Blackstone’s Commentaries, Vol. 4, Chapter 2, p. 151. He raised freedom of press from a literary and political watchword to an accepted legal concept. Freedom of Speech and the Press, 30 Yale Law Journal (Corwin) 49.) The second in a transference of adjudication from the King’s Judges (whether in the Star Chamber or .Lord Mansfield in open court) to the “people’s shopkeepers”. See Law of the Constitution 4th Edition 234, Dicey. There has been much discussion as to the substance of any distinction between previous restraint and subsequent punishment. Freedom of Speech, Chafee, above cited (Chap. 2, Opposition to the War With Germany); Freedom of Speech and the Press, 21 Georgetown Law Journal 35, 161, above cited; Does the Constitution Protect Free Speech, 19 Michigan Law Review 487, above cited; Power of Government Over Free Speech and the Press, 29 Yale Law Journal 410, above cited; Constitutional Free Speech, Schroeder, above cited (Blackstone’s Critics, Chapter 2); Freedom of Speech During and Since the Civil War, Eliel, above cited; Section 2 of Chapter 12, Vol. 6, Problems Relating to Bill of Rights and General Welfare, New York State Constitutional Convention Committee, above cited. There is at least this difference. Advance action forestalls the opportunity for martyrdom. The United States came into being almost simultaneously with the outcome of the struggle we have been talking about. The Colonies had had a similar history of repression at the hands of the Royal Governors: “There are no free schools or printing and I hope we shall not have these 100 years hence, for learning has brought disobedience and heresy and sects into this world and printing has divulged them. Libels against the best government have resulted. God keep us from both.” Governor Berkely, Watson Const. Vol. 2, p. 1400; Development of Freedom of the Press in Massachusetts, Dunniway; Constitutional Free Speech, Schroeder, particularly Chapters 5 and 7. One might therefore expect to find some countervailing provision in the Constitution. One was submitted, but here we come across that fear of the central government which is both the reason for and the handicap of Federations (Le Fur’s Etat Federal, Le Fur, Les Etats FedereauxEtude Droit Constitutional Positif Ch. Durand, Dr. en Droit; La Theorie Juridique De L’Etat Federale, M. Mouskeli, Dr. en Droit; Failure of Federalism in Australia, Canaway). The suggestion drafted by Mr. Pinckney was rejected (Records of the Federal Convention, Max Farrand, II, 334, 340, 341, 545, III, 122, 256, 290, 595, 599, 609). The rejection was of short duration. The ratifying states considered the fear of centralization in this instance exaggerated and the danger great. They insisted on the inclusion of a guarantee of free speech and assembly in the bill of rights. Elliot’s Debates (2d ed. 1836) I, 359, 360, 362, 369, 371, 375, II, 424, 511, 537, III, 411, 414, 415, 481, 551, IV, 159, 175, 269, 301, 302; Pennsylvania and the Federal Convention, J. B. McMaster and F. D. Stone. Since then the Supreme Court has given its approval to the Blackstone definition. Patterson v. Colorado, above cited; Near v. Minnesota., above cited; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Grosjean v. American Press Co., above cited. The principal dispute has revolved around the validity of a distinction between prevention and repression above referred to. It would be accurate to say, we think, that the high court has found a distinction but has divided both in the same and in different decisions between clear and present (imminent) danger and tendency, remote or otherwise, as a definition of that distinction. Schenck v. U. S., 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Frohwerk v. U. S., 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v. U. S., 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566; Abrams v. U. S., 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; Schaefer v. U. S., 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360; Pierce v. U. S., 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; O’Connell v. U. S., 253 U.S. 142, 40 S.Ct. 444, 64 L.Ed. 827; Gilbert v. Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287; Grosjean v. American Press Co., above cited; and Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066. Free assembly is free speech in particular circumstances. It is in one sense free speech carried to its ultimate and logical conclusion and in another free speech in its most complicated and delicate phase. However that may be, the history and philosophy of free speech itself are applicable and in so being account for the comparative paucity of material on free assembly. Apart from the foreign sources referred to later, we have found the authorities to be as follows: (a) One reference by Representative Sedgwick in the Debate on the Bill of Rights, Annals of Congress (1788) p. 759; (b) a. chapter in Liberty of the Press, Speech and Public Worship, Paterson (Chapter 2, Freedom of Public Meetings and Addresses and Petitions), and one in The Law of the Constitution, Dicey, (Chapter >7, The Right of Public Meeting) ; (c) sections in Paterson and the New York Committee book, above cited, those sections being entitled, Freedom of Thought as Developed in Public Meetings, Chapter 1, p. 12, Paterson; Freedom of Assembly as an Independent Right, Chapter 12, section 3, p. 154, New York book; and . Publication, Speech or Assembly Which Creates a Danger That Unlawful Acts Will Be Committed, Chapter 12, section 4, p. 163, New York book; (d) four. law review articles, The Right of Assembly, 9 New York University Law Quarterly Review 1, Jarrett and Mund; Public Order and the Right of Assembly in England and the United States — a comparative study, 47 Yale Law Journal 404; Police Powers and Public Meetings, 6 Cambridge Law Journal 175, E. S. Wade; Reasonable Restrictions Upon Freedom of Assembly, Vol. 9, Proceedings of American Sociological Society p. 29, Hon. Arthur Woods, Police Commissioner; (e) two law review notes, Limitations on the Right of Assembly, 23 California Law Review 180; Restrictions on the Right of Assembly, 42 Harvard Law Review 265; (f) debates in the House of Commons on the Public Order Bill of 1936 (1 Edw. VIII and George VI, Chapter 6, p. 60) 317 Parliamentary debates 1350, also 318 Parliamentary debates 150, 582, 1730; (g) certain United States Supreme Court cases all of which except one commingle the right of free speech and free assembly in the same case, U. S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Davis v. Commonwealth of Massachusetts, 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71; De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; (h) and two books not available in the United States, Law of Political Uniforms, Public Meetings and Public Armies, Baker; Law Relating to Public Meetings and Processions, Crew. Inasmuch as free assembly is a special form of free speech, the philosophy of the latter applies. Because it is only a form of free speech we can expect to find and do find that .philosophy and that history modified by the particular form. For that reason, if for no other, we need not indulge in any elaborate discussion and confine ourselves therefore to a few quotations on both of the stated phases and to a short history. A. Free assembly is a special form of free speech: “Closely connected with the right just mentioned is the right of citizens peaceably to meet and to take public matters into consideration.” Civil Liberty and Self-Government, Francis Lieber, Chapter 12, Sec. 16, p. 127. “So long as such public meeting can be held at the call of any voice from the crowd, and the people can meet in any numbers without let or hindrance and discuss and exchange their sentiments on anything and everything that concerns them — that touches their interests or their feelings — this is as near the enjoyment of perfect liberty as is attainable.” Paterson, above cited, at pp. 12, 13. “The right of assembly is a self-evident, inalienable right of the people and to dwell at such length upon it must make us appear trifling in the eyes of our constituents. It might as appropriately be declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased and go to bed when he thought proper. Surely it was not necessary to enter these trifles in a declaration of rights in a government where none of them were intended to be infringed.” Annals of Congress 1834, 759. “The close relationship between the right to assemble and the right to speak and publish is apparent. Indeed, to many, the function of freedom of assembly is merely to give occasion and force to freedom of speech and press.” New York Committee book, above cited, p. 154. “Man is a gregarious animal. Since earliest times men have assembled together for purposes of feasting, hunting, sympathy, and companionship. In the course of time when the family or household became the economic unit, people assembled for social, religious, political and judicial purposes.” The Right of Assembly, 9 N.Y. U. Quarterly Law Review, p. 1 at 4. B. Because it is only a form of free speech: “The ancient tyrants always feared any large congregation of men in towns, and endeavored to find rustic occupations for them, so as to separate them and divert their minds; and it is said Peisistratus commenced the building of the Temple of Jupiter for some reason of this kind.” 2 Thirlw.Gr. 71. “The right of assembly thus appears more restricted than many other elements of personal liberty. This is inevitable, for in the misuse of concerted group action lies the most powerful menace to public peace. Salus reipublicae suprema lex. But, for the present at least, the limit of restriction seems to have been reached, and the rights of the individual demand a wise and fair application of the existing laws.” Restrictions on the Right of Assembly, 42 Harvard Law Review at 269. “A proper consideration of the law relative to any of the civil liberties must recognize the unique character of this brand of jurisprudence. Civil liberties derive their justification from a philosophy which tends to weaken or disappear in the face of passions and fears aroused by social stress and economic change. It is not enough to write freedom of assembly into the constitution. The constitution is not self executing. Yet it takes on vitality indirect proportion to the unpopularity of the groups whose liberties are successfully guarded. “If freedom of assembly is not protected on the immediate occasion, it stands little opportunity of later vindication. Minority groups are seldom equipped with the requisite funds or influence to render vindication by legal process either consistent or certain. The consequence is a sporadic declaration of the lawfulness of a disrupted meeting, the occasion for which has long since passed.” Pages 191, 192. “The subject is a confused and difficult one. A proper balance between civil liberty and public safety depends on a long maintained tradition of wisdom and moderation in the laws themselves, and no less wisdom and moderation in their administration.” Page 193, Limitations on the Right of Assembly, 23 California Law Review 180. “To those who wish to preserve free speech, more pressing problems are presented by the limitations on the right of public assembly, for the cumulative effect of these restrictions is serious. Repression of this sort is sought to be justified by the plea that it is necessary to maintain the public order. Some restrictions are necessary to curtail conduct which actually interferes with the public safety, but these measures are frequently used where the threat of disturbance is remote. In the long run the public order may best be served by risking a little disorder. To let off steam may scorch the ceiling; it does not blow off the roof. “Several proposals for reform recur. It is sometimes urged that all discretion be taken away from the law-enforcing agencies. The suggestion is futile. Every statute, every ordinance must look to men for its interpretation. But this study has indicated that the wording of statutes does have some significance.- It might therefore be helpful to attempt to tighten up those statutes seeking to maintain the public order. Within broad limits, a standard of conduct can be described which should be extremely difficult to twist or distort. But a word can have only that meaning which a man imports to it. “There is of course some hope that the law-enforcing agencies might be induced to use their discretion more wisely. The American policeman might at least be taught to follow the example of his English contemporary by discarding some of his more brutal tactics. And judges might be educated to be frankly suspicious of police administration in civil liberties cases. But these vague hopes are hardly likely to be achieved.” Public Order and Right of Assembly, 47 Yale Law Journal, page 404 at 431, 432. “If you are going to allow the free play that is necessary for political demonstration and discussion in a democracy you must sometimes have occasions when tempers and feelings run high in particular districts and you must then have the li-. ability of some public disorder taking place.” Debates on Public Order Bill (House of Commons) Vol. 318, Parliamentary Debates, 1936-1937, p. 182. But see contra: “But liberty, gentlemen, must not be converted into license. What they ask for is license, and this I shall never grant! You can, if you wish, organize and march along in processions and I shall have you escorted.” Mussolini as Revealed in His Political Speeches, November, 1914-August, 1923, by Bernando Quaranta di San Severino. The same may be said of the history of free assembly. If free speech was considered obnoxious and was restricted, its indulgence in the presence of more and. perhaps involuntary listeners must be deserving of even more attention. So in the England of Charles the Second the judges were consulted as to whether the King could by proclamation shut up the coffee houses (nurseries of idleness and pragmaticalness) . It was not apparently until the excitement attendant upon the expulsion of Wilkes from the House of Commons that the holding of public meetings was developed. The government acted promptly to prevent any meetings called except by public officials. 32 Parl.Hist. 308, 35 Parl.Deb. 1230. It took similar action 20 years later when the delay in the reform of Parliament led to the irritation of the people and the Manchester meetings. This last enactment was limited to five years and since then speech at public assemblies in England has been subject only to conditions peculiar to them and accordingly more appropriately developed later in this opinion. In this country we have been able to find practically no separate history of free assembly as .distinguished from free speech other than that developed in the cases and in the articles and books already cited. We have already quoted the only reference to the matter in the Debates on the Bill of Rights. The guarantee itself is in effect in nearly all the state constitutions. “A survey of the state constitutions today reveals that all but four states have made an express guarantee of this right. (The four exceptions are Maryland, Minnesota, New Mexico and Virginia). Aside from these four exceptions, the state provisions show a marked degree of similarity. They may be classified first of all into two major divisions: The temper or manner of assembly; and the purpose of the assembly.” The Right of Assembly, 9 University Law Quarterly, New York, above cited, at p. 16. This survey of the philosophy and history of liberty, free speech and assembly leaves an impression of some qualification of their meaning. We ascribe that qualification to the nature of democracy itself. That type of government is based on the consent of the governed. It is based on peace and opposed to violence. It follows that in violence we must look for the limitations on or qualifications of the meanings we have been discussing. That violence may be directed against the government itself, it may be directed by some of the people against others of the people. This right of the government to protect itself against violence has not always been acknowledged. “But mere verbal insults were not considered treason (Digest or- Pandect, 48th Book, 4th Title, 7th Fragment, 3rd edition) ; for said the Emperors Theodosius, Arcadius, and Honorious, in language that is a standing rebuke to pusillanimous tyrants, if the words are uttered in a spirit of frivolity, the attack merits contempt; if from madness they excite pity; if from malice, they are to be forgiven.” Code of Justinian 9th Book, 7th Title, First Constitution. “I hold that a little rebellion now and then is a good thing, and as necessary in the political world as a storm is in the physical. * * * An observation of this truth should render honest republican governors so mild in their punishment of rebellions as not to discourage them too • much. It is a medicine necessary for the sound health of government.” Thomas Jefferson. “This whole theory as to the power of society to displace the holders of governmental authority, is, of course, merely one version of the so-called ‘right of resistance’. Locke’s phrase for designating this right is the ‘appeal to Heaven’, which he regards as the privilege not only of the body of the people but even of any single man. * * * * * * “ ‘The people’ are as a rule ‘more disposed to suffer than right themselves by resistance.’ Only when injustice and oppression have gone very far and have become obvious to a majority of the people will the ‘appeal to Heaven' actually be made.” Political Theories, From Luther to Montesquieu, Dunning, p. 362-363. It can be attributed to the right of self-preservation and as such is applicable to every form of organized society. Commonwealth v. Widovich, 295 Pa. 311, 145 A. 295. Our own attribution seems more in the spirit of the democratic circumstance. At any rate, it is acknowledged and any doubts relate first to the wisdom of its exercise in respect to mere words as opposed to acts and second what words should be proscribed 'or punished. (Cf. United States Supreme Court cases and articles cited under distinction between prevention and repression). In this last aspect we have again the cause and effect problem of Judge Learned Hand’s famous phrase about words as the “triggers of action rather than keys of persuasion” and presumably the same difference among the judges as to its correct answer. The people of the United States have shown a complete faith in the effectiveness of dealing with words even before they are transmuted into deeds and have not been impressed with the quotations expressed in the sentiments of two English legal worthies: “The sergeant in a very grave speech laid open the inconvenience of making words treason — they were often ill-heard and ill-understood and were apt to be misrecited by a very small variation.” Bishop Burnett’s History of His Own Time, Vol. 3, p. 39. “How dangerous it is to depart from the letter of that statute and to multiply and enhance crimes into treason by ambiguous and general words such as accroaching of royal power, subversion of fundamental laws and the like. Since this offense which from its nature is so capable of being created and judged of by rules of political expediency is made the spear of the occasion.” Erskine. This faith and its resulting action seems to have .followed closely upon the alarm natural to manifestations here and in the world generally of symptoms more germane to political systems based not upon the peaceful consent of the governed but upon the violent coercion of the dissenting. So after the French Revolution we had the alien and sedition law and after the tragic assassination of President McKinley the anarchy statutes; a typical one is Laws of New Jersey, Ch. 133 (1902), R.S.1937, 2:173-6 et seq. The Nation and the Anarchists, Wambaugh, 13 Green Bag 461, 25 N.J.Law Journal (1902) p. 32, editorial note; Charge to the Grand Jury, 31 N.J.Law Journal (1908) p. 140, and see also State v. Boyd, 86 N.J.L. 75, 91 A. 586. The spirit behind all this legislation is well epitomized in Burke’s reflections on the French Revolution: “These associators to prosecute, who keep watch of late upon our words and upon our looks, are associated, it seems, to preserve our excellent constitution from the contagion of France, where an arbitrary and tyrannous democracy, under the colour of popular freedom, destroys all the securities and blessings of life — but how does it destroy them ? How, but by the very means that these new partners of executing power would themselves employ, if we would let them.” And see also: “Fisher Ames died in 1808 obsessed by fears his children (one of whom lived to be Chief Justice of Massachusetts), must look forward to their future servitude to the French.” Henry Adams, History of the United States, 183. Their success or failure is in the case of the Alien and Sedition Law a matter of past history. The American Leviathan —The Republic in the Machine Age, Beard, p. 55. In the case of the anarchy and criminal syndicalism statutes it is a matter of present prophecy. We have given these possible qualifications of the significant constitutional words on the theory that their assumption may eliminate the unsatisfactory factual disputes that beset law suits. Let us now consider them in the light of the defendants’ specific acts. We have seen that they fall into five different categories. First the police of Jersey City removed (or ex-eluded if prompt enough) the plaintiffs from the municipal limits. This removal (or exclusion) was by administrative (police) fiat alone. They exercised a censorship of persons. The constitutional word applicable here is that appropriate to persons, namely, liberty. That liberty includes the right of locomotion (movement) is both obvious and recognized by the writers: “The right of locomotion, or of free egress and regress as well as free motion within the country, is another important individual right and element of liberty.” Civil Liberty and Self-Government, Lieber, above cited, p. 95. Also Manual of Political Ethics, Vol. 1, Lieber; Book 2, Chapt. 5, p. 184. “I should say that it means exemption or immunity from unlawful imprisonment or detention of the body, freedom to go and come on lawful business or pleasure, commonly called the right of locomotion; the right to acquire, hold and convey property ; the right to make contracts and to labor in any lawful calling to earn a living; to marry and have family.” A Treatise on the Rights and Privileges Guaranteed by the Fourteenth Amendment of the Constitution of the United States, Brannon at 110. “There are naturally few invasions of this cardinal right so far as a man’s person or free movement is concerned in our country.” (97.) “Further, the right to liberty includes constitutionally the right to move, go and come, live where he will, emigrate, and if a citizen, to return; also to forswear his allegiance and expatriate himself, but not against his will; he can- never, even as a punishment for crime, be banished.” (99.) The American Constitution as it Protects Private Rights, Stimson. And by the cases: The Passenger Cases, 7 How. 283, 12 L.Ed. 702; Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 745; Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186; Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Territory of Hawaii v. Anduha, 9 Cir., 48 F.2d 171; U. S. v. Miller, D.C., 17 F.Supp. 65. Although relegated to the general terms in the law of England and in our Constitution, it has been considered deserving of specific mention in the constitutions of other federations. “Art. 44 Aucun canton ne peut renvoyer de son territoire un de ses ressortissants, ni le priver du droit d’origine ou de cite. “Art. 45 * * * Exceptionnellement, l’etablissement peut etre refuse ou retire a ceux qui, par suite d’un jugement penal, ne jouissent pas de leurs droits civiques.” Swiss Constitution, 1874. Translation: “Art. 44 No Canton can send out from its territory anyone of its residents nor can it deprive anyone of his right of domicile or of citizenship.” “Art. 45 * * * By way of exception the right to settle can be refused or withdrawn from those who by reason of conviction of crime have lost their civil rights.” “Art. 14. All the inhabita