Monday, March 26, 2012

Davis v. Commonwealth of Massachusetts

To understand contemporary United States law, it's necessary to look back at its development. Since I want a better handle on free speech rights on public property, I've decided to start with a Supreme Court case which denied that citizens have any rights to free speech on public property.
"No person shall, in or upon any of the public grounds, make any public address, discharge any cannon or firearm, expose for sale any goods, wares or merchandise, erect or maintain any booth, stand, tent or apparatus for the purposes of public amusement or show, except in accordance with a permit from the mayor." — Revised Ordinances of the City of Boston, Sec. 66. (in 1893, as cited by Davis v. Massachusetts)
William F. Davis preached in a public park without getting permission from the mayor. I'm seeing some hints that he was preaching against government officials, so he may not have gotten a permit if he had asked.

Davis was charged by the city court and found guilty at the county level. The Massachusetts Supreme Court reviewed the case in the county court's favor. Finally, the Supreme Court of the United states reviewed the case in Massachusetts' favor, with no dissent.

There were two main issues in Davis v. Massachusetts:
1. Whether the state could restrict speech in public.
2. Whether such restrictions could be left to a mayor's decision.
The second issue was handled by pointing out that state law did grant such powers to local government. If the state government could restrict speech on public property, then it could delegate this authority to local governments. "[T]he greater power contains the lesser." The local government, in turn, had delegated permit responsibility to the mayor. If Massachusetts could restrict speech, then so could the mayor of Boston.

Can Massachusetts restrict speech? According to the Supreme Court in 1897: yes it can!
"As representative of the public, [the state legislature] may and does exercise control over the use which the public may make of such places, and it may and does delegate more of 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." — Davis v. Massachusetts (emphasis added)
Think about the implications here. A political party currently in control of the legislature could ban all opposing political speech from public spaces while allowing friendly political speech. Davis himself was prosecuted for preaching in public. It's hard to think of a more anti-democratic policy without directly suppressing votes.

In the next post of this informal series, I'll look at a ruling that gave Davis v. Massachusetts a spin sufficient to start granting free speech rights to citizens, whether their state legislatures like it or not.


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