New Jersey required citizens who wished to march or distribute literature to obtain advance permission of the city manager. In Hague, the Court struck down this regulation. The ordinance failed in part because of a defect inherent in licensing schemes: requiring speakers to obtain ‘‘permission’’ before speaking grants enormous power to the licensing official to determine what is acceptable speech in a public place. This risks the official denying permission arbitrarily or because the speech criticizes government.
More significantly, in a concurring opinion, Justice Owen Roberts emphasized that public places such as streets and parks are presumptively open for speech activities. JusticeHolmes had once argued that the government could forbid use of streets and parks much like a private homeowner could eject trespassers. However, Justice Roberts rejected Holmes’s analogy in this famous passage: ‘‘Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’’
This concept, that public streets and parks (and sidewalks) are presumptively open to the public for communications such as leafleting, marching, or speaking, became a key underpinning of the modern Court’s jurisprudence of the ‘‘public forum.’’ Roberts’s dictum does not mean that public spaces are always open for speech (e.g., consider the importance of maintaining highways for transportation), but does mean that the burden is on officials to justify restrictions on their use for communicative activity.
JOHN T. NOCKLEBY
References and Further Reading
See also Holmes, Oliver Wendell, Jr.; Public Forum Doctrine; Roberts, Owen J.