This is an action testing the constitutional validity of a licensing ordinance of the City of Orange. The plaintiffs are The Progressive Action Coordinating Team ("PACT"), a politically motivated association, and various individuals who are presumably members of PACT. Named as defendants are the City of Orange, its mayor, its director of public safety, and its chief of police.
The action was commenced by a complaint and order to show cause. Initially both temporary and permanent relief were sought. The temporary relief asked was a restraint against interfering -- solely on the basis that plaintiff had not obtained a permit -- with certain activities scheduled for December 1969 and sponsored by PACT for the purpose of protesting American involvement in the conflict in Vietnam. That relief was granted and the questions raised with regard to temporary restraints are now moot. By way of permanent relief plaintiffs seek a declaratory judgment that the Orange ordinance is unconstitutional and an injunction against its enforcement. The claim of unconstitutionality is based entirely on the ordinance as written, and not as it has been applied. That being so, the parties have agreed, with the approval of the Court, to have the case summarily considered. Briefs have been submitted by counsel on each side, each brief containing an identical stipulated statement of facts and a detailed discussion of the law.
The provision in question is Section 5 of an ordinance enacted by the City of Orange on or about August 17, 1954, entitled "Aggregations of People." Section 5 reads as follows:
No parades or other prearranged aggregations of people shall be permitted on the streets or sidewalks of the City of Orange until written permission for the same shall have been obtained from the Director of the Department of Public Safety. Requests for such permission must be made in writing and must specify the route to be taken, the time and purpose of the parade, the sponsor or such other information as shall be required by said Director for such parade or aggregation except as provided under Section 39:43-197.1 [39:4-197.1] of the revised statutes.
Plaintiffs argue that this provision is invalid on two related grounds. First, they say, it is a "previous restraint" on the freedoms of speech and assembly in violation of the First and Fourteenth Amendments to the United States Constitution. Second, it is violative of the Fourteenth Amendment's "due process" clause, because it fails to specify the standards by which the Director of Public Safety should guide himself in exercising his discretion on the issuance of permits. Defendants, on the other hand, remind the court that the freedoms of speech and assembly are not absolute; they contend that Section 5 does not place unbridled discretion in the director, but rather constitutes a reasonable and valid exercise of police power by a municipality trying to cope with such real problems as crowd control and flow of traffic.
The case at hand is not without precedent. Various ordinances similar to Section 5 of the Orange ordinance have been tested in the courts in the past, and a number of them have reached, and been finally determined by, the United States Supreme Court. In almost all of these cases, the ordinances have been struck down on the grounds urged here by plaintiffs.
Hague v. C.I.O. , 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), involved a Jersey City ordinance prohibiting "public parades or public assembly in or upon the public streets, highways, public parks or public buildings" without a permit issued by the Director of Public Safety. The ordinance provided in part:
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. [307 U.S. at 502, 59 S. Ct. at 958]
Although there was no majority opinion, the Supreme Court having been divided over the proper scope to be accorded to the Fourteenth Amendment's "privileges and immunities" clause, it is clear from the separate opinions that a majority of the justices concluded that the Jersey City ordinance was void on its face. As Mr. Justice Roberts stated, speaking for himself and Mr. Justice Black:
We think the court below was right in holding the ordinance . . . void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent "riots, disturbances or disorderly assemblage." It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly "prevent" such eventualities. But uncontrolled official suppression of ...