No, the city's rule is perfectly fine. Think of the city as the owner of the park, like someone who owns a house. The owner gets to decide what happens in their house. In the same way, the city gets to decide what happens in its park. The rule isn't trying to stop all speeches everywhere; it's just managing how this specific park is used. Requiring a permit is just a way for the owner (the city) to control its property.

Yes, the rule is okay. It doesn't stop all free speech, it just controls how one public place can be used. The government can make rules for public places and let cities do the same because it represents the public. The rule isn't bad just because you might be able to get a license to speak. The court decided that the words in the rule mean that you can't give any kind of speech to the public in the park without permission. So, Davis can't win this argument because the government has the complete right to decide who can use public property, which includes setting conditions for its use, similar to how a homeowner can control their own house.

<opinion type="majority"> <author id="b529-7">Holmes, J.</author> The only question raised by these exceptions which was not decided in the former case of Commonwealth v. Davis, 140 Mass. 485, is one concerning the construction of the present ordinance. That such an ordinance is-constitutional is implied by the former decision, and does not appear to us open to doubt. To say that it is unconstitutional means that, even if the Legislature has purported to authorize it, the attempt was vain. The argument to that effect involves the same kind of fallacy that was dealt with in McAuliffe v. New Bedford, 155 Mass. 216. It assumes that the ordinance is directed against free speech generally, (as in Des Plaines v. Poyer, 123 Ill. 348, the ordinance held void was directed against public picnics and open-air dances generally,) whereas in fact it is directed toward the modes in which Boston Common may be used. There is no evidence before us to show that the power of the Legislature over the Common is less than its power over any other park dedicated to the use of the public, or over public streets the legal title to which is in a city or town. Lincoln v. Boston, 148 Mass. 578, 580. As representative of the public, it may and does exercise control over the use which the public may make of such places, and it may, and does, delegate more or less of such control to the city or town immediately concerned. For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary right interferes, the Legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes. See Dillon, Mun. Corp. (4th ed.) §§ 393, 407, 651, 656, 666; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234, 243, 244. If the Legislature had power under the Constitution to pass a law in the form of the present ordinance, there is no doubt that <page-number citation-index="1" label="512">*512</page-number>it could authorize the city of Boston to pass the ordinance, and it is settled by the former decision that it has done so. As matter of history we suppose there is no doubt that the town, and after it the city, has always regulated the use of the Common except so far as restrained by statute.<footnotemark>*</footnotemark> It is settled also that the prohibition in such an ordinance, which would be binding if absolute, is not made invalid by the fact that it may be removed in a particular case by a license from a city officer, or a less numerous ' body than the one which enacts the prohibition. Commonwealth v. Ellis, 158 Mass. 555, 557, and cases cited. It is argued that the ordinance really is directed especially against free preaching of the Gospel in public places, as certain Western ordinances seemingly general have been held to be directed against the Chinese. But we have no reason to believe, and do not believe, that this ordinance was passed for any other than its ostensible purpose, namely, as a proper regulation of the use of public grounds. It follows that, as we said at the outset, the only question open is the construction of the present ordinance. We are of opinion that the words “ No person shall . . . make any public address,” in the Revised Ordinances of 1892, c. 43, § 66, have as broad a meaning as the words “ No person shall . . . deliver a sermon, lecture, address, or discourse,” in the Revised Ordinances of 1883, c. 37, § 11, under which Commonwealth v. Davis, 140 Mass. 485, was decided. See Rev. Ord. 1885, c. 42, § 11. Whether lecture, political discourse, or sermon, a speech on the Common addressed to all persons who choose to draw near and listen is a public address, and the omission of the superfluous words in the last revision is only a matter of style and the abridgment properly sought for in codification. Exceptions overruled. <footnote label="*"> In addition to St. 1854, c. 448, § 35, which, appears in the opinion in Commonwealth v. Davis, 140 Mass. 485, the government in the present case called the attention of the court to § 39 of the same statute, which confers upon the city council the care and management of the public buildings and of all the property of the city. </footnote> </opinion>

The Supreme Court took the position that "*** for the legislature*** to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house

The right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser

—written by Mr. Justice Holmes and holding constitutional an ordinance providing that "no person shall, in or upon any of the public grounds, make any public address... except in accordance with a permit from the mayor."

Indeed, the Court's early jurisprudence recognized the absolute right of the government to exclude the public from using its property.

Indeed, the summary treatment accorded an argument based upon an individual's claim that the First Amendment protected certain utterances indicates that the Court at earlier dates placed no unique emphasis upon that right

At one time it was thought that a municipality could prohibit First Amendment activities in streets and parks on the ground that they constituted an unauthorized use of such facilities

In the latter case the power to exclude altogether generally includes the lesser power to condition and may justify a degree of regulation not admissible in the former.

—affirmed the Supreme Judicial Court of Massachusetts' conviction of a preacher who had addressed crowds in the Boston Common in violation of a city ordinance which forbade, inter alia, "any public address" upon publicly owned property "except in accordance with a permit from the mayor."

—this Court adopted the reasoning of the opinion below written by Mr. Justice Holmes, while on the Massachusetts Supreme Judicial Court.

One case, DeJonge, dealt specifically with the right of assembly in so far as it prohibited punishment for mere participation in a meeting.

No. The ordinance is a constitutional regulation of the use of public property. The Legislature has control over public parks and may delegate that control to the city. For the government to forbid public speaking in a park is no more an infringement of public rights than for a private homeowner to forbid it in their house. This is not a regulation of speech in general, but a regulation of the use of a specific piece of public property. The government, as proprietor, may limit the dedication of the property to certain public uses. The requirement of a license from a city officer to make an exception to the general prohibition does not invalidate the ordinance.

Yes, the ordinance is a proper exercise of the Legislature's power to control the use of public spaces and does not constitute an infringement of constitutional rights because it is not directed against free speech generally but is a regulation of the modes in which Boston Common may be used. The Legislature, as representative of the public, may limit the public use of common spaces to certain purposes, and it may delegate that control to the city. The ordinance is not invalid because it allows for the possibility of obtaining a license to speak. The words 'No person shall ... make any public address' in the Revised Ordinances of 1892, c. 43, § 66, are interpreted to have the same broad meaning as similar language in previous ordinances. Therefore, the exceptions are overruled because the Legislature has the power to forbid public speaking in a public park, just as a private homeowner can forbid it in their house. The right to exclude from public property altogether generally includes the lesser power to condition use and may justify a degree of regulation not admissible in other contexts.

Commonwealth v. Davis

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