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Commonwealth v. Davis

Supreme Judicial Court of Massachusetts · 1895 · Constitutional Law

Constitutional Lawpublic speechpublic parksBoston Commonmunicipal ordinancedelegationlicensepublic address

Facts

Boston had an ordinance providing that no person shall make any public address on Boston Common without permission under the city’s regulatory scheme. The defendant challenged the ordinance as unconstitutional and also argued that the revised wording of the ordinance did not reach his speech. The court treated the constitutionality of such an ordinance as already implied by the earlier Commonwealth v. Davis decision, leaving construction of the present ordinance as the main open question. The ordinance was described by the court as a regulation of the use of public grounds rather than a suppression of free speech generally.

Issue

May the Legislature, or a city acting under legislative authorization, constitutionally forbid public speaking on Boston Common as a regulation of the use of public grounds? Also, does the phrase "make any public address" in the revised ordinance cover the kind of speech previously covered by language forbidding a "sermon, lecture, address, or discourse"?

Rule

The Legislature, as representative of the public, may control and limit the uses of public parks and highways and may absolutely or conditionally forbid public speaking there; it may delegate that authority to a municipality. A prohibition that would be valid if absolute is not invalid merely because a city officer or smaller body may remove it by license in particular cases. The phrase "make any public address" includes any speech on the Common addressed to all persons who choose to gather and listen.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Ohio legislature authorizes cities to manage the uses of municipal parks. Acting under that authority, Cleveland adopts an ordinance providing that no person may give a public talk in Lakefront Green Park without prior permission from the parks superintendent. Nora Kim is cited after addressing passersby about tax policy and argues the ordinance is unconstitutional because it restricts speech in a public place.

Under the majority's reasoning, which is the best analysis?

Explanation. The majority treated such a rule as a regulation of the modes in which a public park may be used, not as a suppression of free speech generally. As representative of the public, the legislature may limit the public's use of parks and may forbid public speaking there. That is the core doctrinal move of the opinion.