Poulos v. New Hampshire/Concurrence Frankfurter
Mr. Justice FRANKFURTER, concurring in the result.
I am constrained to protest against the Court's discussion under first because it deals with an issue that is not here.
In no area of adjudication is the adage 'silence is golden' more pertinent, when there is no duty to speak, than in the series of problems to which a judicial reconciliation between liberty and order gives rise. It is more than a counsel of wisdom. When there is no duty to speak on such issues there is a duty not to speak. This is not so merely because constitutional pronouncements, when a case before the Court does not call for them, violate a constitutional practice sanctioned by history and reinforced by the costly experience of occasional departures from it. The practice is especially compelling in cases involving the scope and limits of judicial protection of religious freedom and freedom of speech. These present perhaps the most difficult issues for courts. By their very vastness, the themes to be translated into law lend themselves too readily to the innocent deceptions of rhetoric. Every new attempt to translate the legal content of these liberties impliedly brings into question prior attempts; at the least it encourages further efforts at exegesis.
The Court's opinion has carefully and, if I may say so, correctly defined the question to which it addresses itself in First. The Court finds that Poulos presents two contentions:
'first, no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment; second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion.'
If lucid English means what it unambiguously says, the 'first' contention in the above quotation-'no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment'-means that the Due Process Clause of the Fourteenth Amendment bars New Hampshire from requiring a license for 'an open air public meeting,' as is required by the ordinance of Portsmouth.  And this in legal terms is a claim by the appellant that the ordinance (for jurisdictional purposes, a statute) is void on its face. Such precisely was the explicit claim made in Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. In the Cox case the claim was that the scheme of licensing as such was out of constitutional bounds. It was to that issue that our unanimous decision was directed. From the beginning of the litigation that claim was explicitly rejected in the present case and at no subsequent stage of the litigation has Poulos claimed that the licensing scheme as such was void. No such claim is made in his statement as to jurisdiction, in his reply to the statement in opposition, or in his brief and reply brief on the merits. Kai gar, as the expressive Greek phrase ran-naturally so. Experienced counsel for Poulos tried to take himself from under the Cox decision and distinguished it from this case in that here 'the respondents (the codefendant, Derrickson, died after the trial in the New Hampshire Superior Court) have attempted to comply with the ordinance and offered to pay the necessary fee and expenses.' It is not that Poulos estopped himself, by applying for a license, from thereafter assailing the statute as void. It is that throughout he conceded the ordinance to be 'valid on its face.' State v. Poulos, 97 N.H. 352, 354, 88 A.2d 860, 861.
The real constitutional attack that Poulos makes in the proceedings which are here under review, in all the briefs that are here filed, and in the oral argument, is founded on the fact that he was denied the opportunity to set up in a prosecution, under § 25 of the Portsmouth ordinance, for speaking without a license, the claim that in denying the license for which he applied the Portsmouth City Council acted arbitrarily and unreasonably. The only issue that arises from the proceedings had in the Portsmouth Municipal Court, which fined Poulos $20, in the Superior Court, which sustained the fine, and in the Supreme Court of New Hampshire, which affirmed the Superior Court, was whether the remedy for the concededly wrongful refusal to grant Poulos a license was mandamus to the City Council. These courts all agreed that he could not set up as a defense in the prosecution for speaking without a license the arbitrary conduct of the City Council in denying him one.
The matter was put with entire accuracy in the ruling of the Superior Court, which the Supreme Court found unexceptionable:
"Counsel have tried these cases on the theory that the refusal of the City Council to grant licenses to the respondents was in issue. It is found as a fact that the action of the City Council in refusing to grant licenses to the respondents was arbitrary and unreasonable, but the Court rules as a matter of law that this issue is not properly before it in these proceedings." See State v. Poulos, supra, 97 N.H. at page 353, 88 A.2d at page 861.
The validity of this procedural requirement of New Hampshire that the remedy for an unlawful denial of a license is mandamus or certiorari-is the only issue which the New Hampshire Supreme Court had before it:
'According to the (Superior) Court, the defendants misconceived their remedy. It has been conceded by the defense on this transfer (of the case from the Superior Court), as well as on the first one, that the ordinance is valid on its face. It is identical in language with the statute that was construed as valid in State v. Cox, 91 N.H. 137, 14 A.2d 508, which was affirmed in Cox v. (State of) New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. It is not disputed that the ordinance applies to the park that was the scene of the open air meetings in question. No objection has been made to the application of the ordinance to the areas where the meetings took place, and no exception taken to any finding or ruling with respect thereto.' See State v. Poulos, supra, 97 N.H. at page 354, 88 A.2d at page 861.
Nowhere in any one of the four documents submitted to this Court on behalf of Poulos is there any showing that more than this procedural issue is before us. The grievance that is here is not that a license was required for speaking in Goodwin Park. The claim is that, having duly complied with this requirement by applying for a license that was then wrongfully refused, Poulos was free to speak without a license, and that he was not required to go to the Superior Court for a mandamus against the City Council.
In short, what is discussed under First in the Court's opinion would have been precisely appropriate had Poulos made the claim made in Cox, namely, that the congregation of Jehovah's Witnesses were not required to apply for a license, but is wholly without pertinence on the present record.
To be sure, Poulos makes the claim-having conceded that the statute is valid on its face-that the ordinance is unconstitutional 'as applied' 'under the facts in this case.' But what 'facts'? The facts are these: having complied with the statute requiring a license, he was not allowed to set up as a defense for its violation the fact that the want of a license was due to the illegal conduct of the licensing agency.
That is precisely what is correctly defined by the Court as the 'second' contention:
'second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion.'
But that is not the 'second' contention. It is the only contention. It is the only contention that was before the New Hampshire Supreme Court in the proceeding we are reviewing, and it is the only contention, however variously phrased, on which Poulos can obtain review here.  And this is the contention-the statute 'as applied' in this sense-that the Court treats in its discussion under Second.
On this, the only issue that is here, I agree that New Hampshire was not barred by the Due Process Clause from requiring Poulos to mandamus the City Council after it had unlawfully refused him a permit. New Hampshire may in these circumstances, I agree, refuse him permission to set up the Council's arbitrary denial of his application as a defense to prosecution under the ordinance, which fixes the penalty at $20. There is nothing in the record to suggest that the remedy to which the Supreme Court of New Hampshire confined Poulos effectively frustrated his right of utterance, let alone that it circumvented his constitutional right by a procedural pretense. Poulos' application for a permit was denied on May 4, 1950, and the meetings for which he sought the permit were to be held on June 25 and July 2. In the absence of any showing that Poulos did not have available a prompt judicial remedy  to secure from the Council his right, judicially acknowledged and emphatically confirmed on behalf of the State at the bar of this Court, the requirement by New Hampshire that Poulos invoke relief by way of mandamus or certiorari and not take the law into his own hands did not here infringe the limitations which the Due Process Clause of the Fourteenth Amendment places upon New Hampshire. It would trivialize that Clause to bar New Hampshire from determining that legal issues raised by denial of a license, under a constitutionally valid system, should not be adjudicated in the first instance in police courts or, in any event, should be determined in an appropriately designed procedure and not as a defense to a penal action.
In reaching this conclusion the New Hampshire Supreme Court did not construe the ordinance; it did not, in the technical meaning of the phrase, apply the statute. 'We see no reason', said that Court, 'for overruling the law as stated in this jurisdiction that a wrongful refusal to license is not a bar to a prosecution for acting without a license.' State v. Poulos, supra, 97 N.H. at page 354, 88 A.2d at page 861. What the Supreme Court of New Hampshire enforced was not a part of the licensing ordinance but the general procedural law of New Hampshire. It stretches the doctrine of Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239, beyond reasonable limits to find that a requirement. of New Hampshire procedure is an application of the licensing statute, rather than an application of the common law of New Hampshire. Therefore, I think, the case is properly here on certiorari and not appeal.
Mr. Justice BLACK, dissenting.
^1 When the case was first before the New Hampshire Supreme Court on a stipulation of facts essentially different from the findings on which the decision in the present case must rest, there was in issue the claim that the city may not refuse a license for religious meetings in one park even 'if there are still adequate places of assembly for those who wish to hold public open air church meetings.' This question was taken out of the case upon remand for the trial which resulted in the conviction now before us. It was then found that the refusal to grant a license in this case was 'arbitrary and unreasonable.' In its second review of the case, in the only decision that is now here, the New Hampshire Supreme Court assumed that the Council's action was unlawful. Accordingly all that is subject to review now is the question whether the procedural law of New Hampshire, in relation to an illegally withheld license, may constitutionally operate in the circumstances of this case.
^2 See note 1, supra.