Feiner v. New York, 340 U.S. 315 (1951)

Irving Feiner was an undergraduate student at Syracuse University in l949. As a member of the Young Progressive Party, he had participated in the Party’s decision to invite John Rogge, a past Assistant Attorney General of the United States and a member of the American Progressive Party, to give a speech to be held in public school about what he, and the Progressives, thought was the unfair conviction of several young blacks in a New Jersey courtroom. The mayor was enraged about this invitation, as was the chapter of the Syracuse American Legion, and the mayor orchestrated a denial of the permit for Rogge to speak in the school auditorium.

Feiner, and his associates from the Progressives, arranged to have Rogge speak in a private hotel in Syracuse. To publicize this new venue and to advertise some of the themes they expected Rogge to emphasize, Feiner held a street corner rally in downtown Syracuse. Standing on a box and using a microphone, Feiner condemned the Mayor, the local political system, and the American Legion. Quoting from the subsequent trial court record (and Feiner disputed some of these contentions), the judge found that specifically Feiner said: ‘‘ Mayor Costello is a champagne- sipping bum; he does not speak for the Negro people. . . The 15th Ward is run by corrupt politicians, and there are horse rooms [betting parlors] operating there.. . . President Truman is a bum.. . . Mayor O’Dwyer [of Syracus] is a Nazi Gestapo.. . . The Negroes don’t have equal rights; they should rise up in arms and fight for their rights.’’ A crowd of approximately seventy-five to eighty (the police estimate accepted by the trial judge; twenty-five to thirty were estimated by the defense) gathered on the street corner to hear Feiner’s comments. Some in the crowd voiced approval; other objected, some vociferously. Passersby on the sidewalk might also have had their paths partially blocked by the crowd. The police alleged that one spectator (never a witness during trial however) shouted to them: ‘‘If you don’t get that son of a bitch off, I will go over and get him off there myself.’’ The police judged that the situation was becoming dangerous and asked Feiner to stop speaking. When he ignored them, they asked him to step down from the box and informed him that he was under arrest for disorderly conduct.

Feiner’s arrest was upheld in the local court, and he was sentenced to thirty days in jail. The case was appealed (unsuccessfully for Feiner) to two New York courts and finally to the U.S. Supreme Court. The Court in a six to three decision in 1951 also upheld the trial court’s decision reasoning that police should have discretion to decide when a local rally was becoming a danger to the community. The Court stressed that Feiner was not arrested for the political content of his speech but for the effects his words were having on the crowd, and the Court thought that the police could legitimately conclude that a disturbance or breach of the peace was imminent. The dissenting justices, in addition to calling into question the ‘‘factual’’ record the trial judge had sustained, also questioned the premise of the majority Supreme Court decision. Specifically, they thought that the police, rather than ask Feiner to stop speaking in the face of a potentially hostile audience, should have asked-insisted that the crowd move aside and allow pedestrians to pass and should have informed any one in the crowd threatening the speaker that this kind of threat was unacceptable, and that if a threat was serious, it could lead to the spectator’s arrest. In the dissenters’ view, the majority deferred too much to both the police and trial judge version of the events, but even if the view of the police and judge was accepted for the sake of the argument, Feiner’s right to speak nonetheless should have been upheld by the majority. The decision, the dissenters maintained, gave the police too much discretion to decide when a speaker’s words were likely to lead to a breach of the peace and did not make the dissenters sufficiently responsible for those in a crowd threatening a speaker.

Feiner had been expelled from Syracuse shortly after the trial court’s decision but was free on Bail pending the final resolution of the case. After the Supreme Court’s decision was announced, Feiner served his thirty days in jail.

The Feiner case has become known as the case that supported what has been called the ‘‘heckler’s veto.’’ The police could legitimately conclude—here by the crowd’s demeanor in general, by the ‘‘get the son-of-abitch’’ comment in particular—that continued speech would result in a breach of peace.

And so the legal history ends, but the question that remains is ‘‘whatever happened to Irving Feiner,’’ what happened to this idealistic student arrested because the courts decided to defer to local police assessments of the consequences of his words. Several years ago, with the help of my students, we tracked Irving Feiner to his home outside of New York City. It was wonderful to learn that he had had a relatively successful business career, ultimately was reaccepted into Syracuse and earned his college degree, and now stands as a kind of icon for ‘‘doing the right thing.’’ He has spoken at several law schools about the case and is an annual speaker in my undergraduate class at Rutgers. Still the fighter for principled issues, two pieces of Irving Feiner’s take on Feiner are important to include in this entry. First, he notes that his ‘‘take up arms’’ comments were referring to what he had experienced in post-war France, when thousands of citizens walked down the Champs-Elysee ‘‘arm in arm’’ to insist on greater social justice. Second, he thinks the recollection of calling Truman a ‘‘bum’’ was incorrect. Noting that he knows his own rhetorical style, he now invariably tells his audience that he would never have used the word ‘‘bum’’ but instead would have said something more colorful, something that included a reference to Truman’s relationship to his mother!

MILTON HEUMANN

References and Further Reading

• Barker, Lucius, and Twiley Barker, Jr. Civil Cases and Commentaries Liberties and The Constitution. 4th Ed. Englewood Cliffs, NJ: Prentice Hall, 1982, pp. 17–28.
• Cushman, Robert. Cases in Civil Liberties. New York: Appleton-Century-Crofts, 1968.
• Heumann, Milton. Interview with Irving Feiner. New Brunswick, NJ: Rutgers University, March 2005.
• Konvitz, Milton. Bill of Rights Reader. 5th Ed. Revised, Ithaca: Cornell University Press, 1973.

Cases and Statutes Cited

• Feiner v. New York 340 U.S. 315 (1951)

See also Captive Audiences and Free Speech; Fighting Words and Free Speech; Heckler’s Veto Problem in Free Speech