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Thomas v. Casey

Decided: October 18, 1938.


On mandamus.

For the relator, Arthur T. Vanderbilt.

For the respondent, James A. Hamill.

Before Brogan, Chief Justice, and Justices Bodine and Heher.


[121 NJL Page 185] BODINE, J. The relator, often a candidate of the Socialist party for high office, seeks in this proceeding to compel the director of public safety of Jersey City to issue to him a permit for a meeting to be held sometime in the future in Journal Square, or in some other place in that city, in order that he may deliver an address to those interested in the views he holds

on public questions. He has, for years, been a close student of the social and economic order and his books and writings have been widely read. Many of the citizens of Jersey City are, however, out of sympathy with the views he has often expressed, and protested to the director against permitting a socialist meeting in Journal Square, or in other highways and parks under the control of the city. Italics wherever they appear without other note are mine.)

The legislature of the state delegated to the municipal government of Jersey City power to pass ordinances to preserve the public peace and order. Rev. Stat. 40:48-1. Pursuant to that authority, the city adopted an ordinance which provides as follows: "1. From and after the passage of this ordinance, no public parades or public assembly in or upon the public streets, highways, public parks or public buildings of Jersey City shall take place or be conducted until a permit shall be obtained from the Director of Public Safety. 2. The Director of Public Safety is hereby authorized and empowered to grant permits for parades and public assembly, upon application made to him at least three days prior to the proposed parade or public assembly. 3. The Director of Public Safety is hereby authorized to refuse to issue said permit when, after investigation of all of the facts and circumstances pertinent to said application, he believes it to be proper to refuse the issuance thereof; provided, however, that said permit shall only be refused for the purpose of preventing riots, disturbances or disorderly assemblage. 4. Any person or persons violating any of the provisions of this ordinance shall upon conviction before a police magistrate of the city of Jersey City be punished by a fine not exceeding two hundred dollars or imprisonment in the Hudson County Jail for a period not exceeding ninety days or both."

It is to be noted that the above ordinance forbids parades or public assembly in the highways and parks of Jersey City without a permit, and the director of public safety is authorized to refuse a permit when, after investigation, he believes that the refusal is necessary in order to prevent riots, disturbances or disorderly conduct.

The Constitution of New Jersey, article 1, paragraph 5, provides that: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." Paragraph 18 of the same article provides: "The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives and to petition for redress of grievances."

The Constitution of the United States in the first amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press; or the right of the people peaceably to assembly, and to petition government for a redress of grievances."

"That this amendment was intended to secure to every citizen an absolute right to speak, or write or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. * * * It is plain, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government." 3 Story's Commentaries 731.

"The first amendment was written by men to whom Wilkes and Junius were household words, who intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America. * * * Although the free speech clauses were directed primarily against the sedition prosecutions of the immediate past, it must not be thought that they would permit unlimited previous restraint. They must also ...

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