COX v. NEW HAMPSHIRE

Legal Principle at Issue

Whether a state law prohibiting a parade or procession on a public street without a special license violates the First Amendment.

Action

Affirmed (includes modified). Petitioning party did not receive a favorable disposition.

Facts/Syllabus

Appellants Willis Cox and 67 other Jehovah's Witnesses met at a hall in the City of Manchester on the evening of Saturday, July 8, 1939, "for the purpose of engaging in an information march." The company was divided into small groups, which then proceeded to a different part of the business district of the city and there "would line up in single-file formation and then proceed to march along the sidewalk, single-file,' that is, following one another." 

Each of the defendants carried a small staff with a sign reading "Religion is a Snare and a Racket," and, on the reverse, "Serve God and Christ the King." Some of the marchers carried placards bearing the statement "Fascism or Freedom. Hear Judge Rutherford and Face the Facts." The marchers also handed out printed leaflets announcing a meeting to be held at a later time in the hall from which they had started, where a talk on government would be given to the public free of charge. Defendants did not apply for a permit, and none was issued. Appellants claim that each of the defendants was a minister ordained to preach the gospel in accordance with his belief, and that the participation of these ministers in the march was for the purpose of disseminating information in the public interest, and was one of their ways of worship.

The sole charge against appellants was that they were "taking part in a parade or procession" on public streets without a permit, as was required by a state law providing that no parade or procession upon any public street shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town, or from a licensing committee for the city. Appellants were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, or for maintaining or expressing religious beliefs. Their right to do any one of these things, apart from engaging in a "parade or procession" upon a public street, was not at issue before the Supreme Court.

The New Hampshire Supreme Court construed the statute and defined the limitations of the authority conferred for the granting of licenses for parades and processions. The state court observed that, if the clause of the act requiring a license "for all open-air public meetings upon land contiguous to a highway" was invalid, that invalidity did not nullify the act in its application to the other situations described. Recognizing the importance of the civil liberties invoked by appellants, the state court thought it significant that the statute prescribed "no measures for controlling or suppressing the publication on the highways of facts and opinions, either by speech or by writing"; that communication "by the distribution of literature or by the display of placards and signs" was in no respect regulated by the statute; that the regulation with respect to parades and processions was applicable only "to organized formations of persons using the highways", and that "the defendants, separately, or collectively in groups not constituting a parade or procession," were "under no contemplation of the Act." In this light, the state court thought that interference with liberty of speech and writing seemed slight; that the distribution of pamphlets and folders by the groups "traveling in unorganized fashion" would have had as large a circulation, and that "signs carried by members of the groups not in marching formation would have been as conspicuous, as published by them while in parade or procession." The state court held that the licensing board was not vested with arbitrary power or an unfettered discretion; that its discretion must be exercised with "uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination."