Feiner v. New York 1951

Petitioner: Irving Feiner

Respondent: State of New York

Petitioner's Claim: That convicting him for disorderly conduct for speaking to a public crowd violated his freedom of speech.

Chief Lawyer for Petitioner: Sidney H. Greenberg

Chief Lawyer for Respondent: Dan J. Kelly

Justices for the Court: Harold Burton, Tom C. Clark, Felix Frankfurter, Robert H. Jackson, Stanley Forman Reed, Fred Moore Vinson

Justices Dissenting: Hugo Lafayette Black, William O. Douglas, Sherman Minton

Date of Decision: January 15, 1951

Decision: Feiner's conviction did not violate the First Amendment.

Significance: Freedom of speech does not allow people to incite riots.

On his soapbox

In 1948, city officials in Syracuse, New York, gave O. John Rogge a permit to speak at a public school building. A group that was working for equal rights for African Americans, called the Young Progressives, organized the speech. The planned subject of Rogge's talk was racial discrimination and civil rights.

On the day of the speech, Syracuse cancelled the permit. The Young Progressives then arranged for Rogge to speak at the Hotel Syracuse. Irving Feiner, a college student, announced the change of plans to the public on a street corner. Standing on a wooden box and using a loudspeaker attached to an automobile, Feiner attracted a crowd of about seventy-five people, both white and black.

During his announcement, Feiner made comments about public officials. He called President Harry S. Truman and the mayor of Syracuse "bums." Feiner said the local government was run by "corrupt politicians" and that the American Legion was a "Nazi Gestapo." At least one witness recalled Feiner saying African Americans should "rise up in arms and fight for their rights."

The law arrives

After receiving a call about a public disturbance, two policemen arrived at the scene of Feiner's speech. The crowd was blocking foot traffic on the sidewalk and spilling into the street, so the police moved the crowd onto the sidewalk. The officers said Feiner's speech caused mumbling, grumbling, and shoving in the crowd. After Feiner made the comment about African Americans fighting for their rights, one man told the officers that if they did not stop Feiner, he would.

The police then decided the crowd was getting out of control. They approached Feiner and asked him to disperse the crowd. Feiner kept talking, urging everyone to attend Rogge's speech that evening at the Hotel Syracuse. The officers then told Feiner to get down, but Feiner continued to talk. As the crowd moved forward towards Feiner, the officers told Feiner he was under arrest and ordered him to get down. Feiner stepped down saying, "the law has arrived, and I suppose they will take over now."

In New York, the law of disorderly conduct made it a crime to cause a breach of the peace by using insulting language, annoying others, or disobeying a police order to move from a public street. Feiner was convicted of disorderly conduct and sentenced to thirty days in prison. Feiner appealed. He argued that his conviction violated the First Amendment freedom of speech. The First Amendment says, "Congress shall make no law . . . abridging [limiting] the freedom of speech." States, including New York, must obey the First Amendment under the Due Process Clause of the Fourteenth Amendment.

During his appeals, Feiner argued that the police arrested him because the city did not like his criticism of public officials or his support for equal rights for African Americans. Feiner said convicting him for such speech violated the First Amendment. The county court and the New York Court of Appeals rejected this argument and affirmed Feiner's conviction, so Feiner took his case to the U.S. Supreme Court.

No freedom to riot

With a 6–3 decision, the Supreme Court ruled in favor of New York and affirmed Feiner's conviction. Writing for the Court, Justice Fred Moore Vinson said the evidence clearly showed that the police did not arrest Feiner to stop his speech. Instead, after Feiner spoke for about thirty minutes, the police decided that the crowd, which was blocking foot and automobile traffic, was getting out of control. According to the Court, the police arrested Feiner to protect public safety, not to interfere with Feiner's freedom of speech.

Justice Vinson quoted from a previous case, Cantwell v. Connecticut (1940), to support the Court's decision. "When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious."

Justice Vinson emphasized that the police cannot arrest a speaker just because the crowd does not like what it hears and that the freedom of speech is designed to protect unpopular speech. But when the speaker encourages a riot that may cause a breach of the peace, the freedom of speech ends and public safety takes over. The Court believed Feiner encouraged a riot by urging African Americans to "rise up in arms and fight for their rights."

Official censorship

Three justices disagreed with the Court's decision. Justice William O. Douglas wrote a dissenting opinion. He said the evidence did not prove that Feiner was urging African Americans to start a riot. Instead, Feiner said the crowd should "rise up and fight for their rights by going arm in arm to the Hotel Syracuse, black and white alike, to hear John Rogge." Justice Douglas said the police should have protected Feiner while he made this speech.

Justice Hugo Lafayette Black also wrote a dissenting opinion. He said the evidence did not prove that the crowd was about to riot. Instead, one man complained to the police officers about Feiner's speech. Justice Black said the police should have protected Feiner's freedom of speech by stopping the man who threatened to stop Feiner. Justice Black feared that the Court's decision meant "minority speakers can be silenced in any city."

Suggestions for further reading

Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Mikula, Mark, and L. Mpho Mabunda, eds. Great American Court Cases. Vol. 1. Detroit: Gale Group, 1999.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

TERMINIELLO V. CHICAGO

C ases in which speakers cause a public disturbance do not always have the same result. In Terminiello v. Chicago (1949), decided only three years before Feiner, the Supreme Court reversed the conviction of a man who actually caused a riot. The man was Father Terminiello, a priest from Birmingham, Alabama, who was prejudiced against Jews, African Americans, and almost anyone who was not a white Christian.

In 1946, a group called the Christian Veterans of America invited Father Terminiello to give a speech at the West End Women's Club in Chicago, Illinois. During his speech to a crowd of eight hundred people, Terminiello criticized Jews, African Americans, and President Franklin D. Roosevelt. An angry group of one thousand protestors outside began to riot. They threw rocks, bricks, bottles, and stink bombs, breaking 28 windows and leading to 17 arrests.

Father Terminiello was convicted for disturbing the peace. The U.S. Supreme Court, however, reversed Terminiello's conviction. The Court said it violates the First Amendment to convict someone for using speech that angers other people. The very reason for the freedom of speech is to protect the right to say things that others might not like to hear. Unfortunately, this same reasoning did not influence the Court's decision in Feiner.

Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.