Kovacs v. Cooper/Concurrence Jackson

by Robert H. Jackson

United States Supreme Court

336 U.S. 77

Kovacs  v.  Cooper

 Argued: Oct. 11, 1948. --- Decided: Jan 31, 1949

Mr. Justice JACKSON, concurring.

I join the judgment sustaining the Trenton ordinance because I believe that operation of mechanical sound-amplifying devices conflicts with quiet enjoyment of home and park and with safe and legitimate use of street and market place, and that it is constitutionally subject to regulation or prohibition by the state or municipal authority. No violation of the Due Process Clause of the Fourteenth Amendment by reason of infringement of free speech arises unless such regulation or prohibition undertakes to censor the contents of the broadcasting. Freedom of speech for Kovacs does not, in my view, include freedom to use sound amplifiers to drown out the natural speech of others.

I do not agree that, if we sustain regulations or prohibitions of sound trucks, they must therefore be valid if applied to other methods of 'communication of ideas.' The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each, in my view, is a law unto itself, and all we are dealing with now is the sound truck.

But I agree with Mr. Justice BLACK that this decision is a repudiation of that in Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148. Like him, I am unable to find anything in this record to warrant a distinction because of 'loud and raucous' tones of this machine. The Saia decision struck down a more moderate exercise of the state's police power than the one now sustained. Trenton, as the ordinance reads to me, unconditionally bans all sound trucks from the city streets. Lockport relaxed its prohibition with a proviso to allow their use, even in areas set aside for public recreation, when and where the Chief of Police saw no objection. Comparison of this our 1949 decision with our 1948 decision, I think, will pretty hopelessly confuse municipal authorities as to what they may or may not do.

I concur in the present result only for the reasons stated in dissent in Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS, and Mr. Justice RUTLEDGE concur, dissenting.

Notes