Feiner v. New York
340 U.S. 315 (1951)
Rule of Law:
When a speaker's words create a clear and present danger of disorder or riot, police do not violate the First Amendment by stopping the speech and arresting the speaker for disorderly conduct after he defies their orders to cease.
Facts:
- On March 8, 1949, Irving Feiner gave an open-air speech on a sidewalk in Syracuse, New York, to a crowd of about 75-80 people of mixed race.
- Standing on a wooden box and using a loudspeaker, Feiner made derogatory remarks about President Truman, the American Legion, and local political officials.
- Feiner urged Black people in the audience to "rise up in arms and fight for equal rights."
- The crowd became restless, with pushing and shoving. Some listeners appeared to support Feiner, while others grew angry.
- One onlooker told the police officers, "If you don't get that son of a bitch off, I will go over and get him off there myself."
- Believing a fight was imminent, an officer approached Feiner and asked him to get down from the box.
- Feiner ignored the officer's request and continued speaking.
- Over the course of several minutes, the officer asked Feiner to stop speaking a total of three times, which Feiner refused to do.
Procedural Posture:
- Irving Feiner was charged with disorderly conduct in violation of § 722 of the New York Penal Law.
- Feiner was tried without a jury and convicted in the Court of Special Sessions of the City of Syracuse, a trial court.
- Feiner's conviction was affirmed by the Onondaga County Court, an intermediate appellate court.
- The conviction was subsequently affirmed by the New York Court of Appeals, the state's highest court.
- The Supreme Court of the United States granted a writ of certiorari to review the decision.
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Issue:
Does a conviction for disorderly conduct violate the First Amendment's guarantee of free speech when a speaker refuses police orders to stop an inflammatory speech that has agitated a crowd to the point of imminent violence?
Opinions:
Majority - Chief Justice Vinson
No. The conviction does not violate the First Amendment because the police action was a justified and necessary response to a clear and present danger of public disorder. The Court found that Feiner was not arrested for the content of his speech, but rather for the reaction it engendered and his subsequent defiance of police orders. Citing Cantwell v. Connecticut, the Court held that when a speaker "passes the bounds of argument or persuasion and undertakes incitement to riot," the state has an obvious power to prevent a breach of the peace. The police were motivated by a proper concern for public safety, not a desire to suppress unpopular views, and their judgment that disorder was imminent was supported by the facts.
Dissenting - Justice Black
Yes. The conviction violates the First Amendment because it allows police to censor unpopular speech. The evidence of imminent riot was "far-fetched," as restlessness and disagreement are normal at controversial public meetings. The police have a duty to protect a speaker's constitutional right to talk, even from a hostile audience, and should have controlled the crowd or arrested the man who made a threat. Instead, the police shirked their duty and acted only to suppress the speech, giving them a tool to silence any speaker who draws a hostile reaction, which is a "long step toward totalitarian authority."
Dissenting - Justice Douglas
Yes. The conviction violates the First Amendment because the police's primary function is to protect lawful public speech, especially for unpopular causes. An unsympathetic audience and the threat of one man do not justify silencing a speaker. By arresting Feiner instead of protecting him from the heckler, the police failed their duty and became "the new censors of speech." The record shows no incitement to riot, only a hostile reaction, which is precisely when a speaker requires police protection to exercise their constitutional rights.
Analysis:
This case is significant for its articulation of the "heckler's veto" doctrine, where the hostile reaction of an audience can justify the suppression of speech to maintain public order. The decision grants substantial discretion to law enforcement on the scene to determine when speech crosses the line into incitement, creating a potential chilling effect on controversial or unpopular speech. While later cases have placed a greater emphasis on the police's duty to protect speakers, Feiner remains a key precedent for balancing First Amendment rights against the state's interest in preventing imminent public disorder.
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