City of Milwaukee v. Snyder | Cases | Westlaw

*303 It is contended that the case of Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, overrides the Kassen Case and requires the reversal of the instant one. The ordinance involved in the Griffin Case was held to violate the Constitution of the United States in that it unduly restricted the rights of the citizen as to freedom of speech and press and in the free exercise of religion. U.S.C.A. Const. Amend. 1. No question of religion is here involved. The ordinances involved in the two cases are so widely different that we perceive no conflict between the decisions. The act involved in the Griffin Case was the free distribution within the city of a tract or pamphlet “setting forth the gospel of the ‘Kingdom of Jehovah,”’ [page 667] a religious cult of which the petitioner in certiorari was a member, without having first procured a license so to do as required by an ordinance of the city. The ordinance prohibited “the practice of distributing, either by hand or otherwise, circulars, handbooks, advertising or literature of any kind, whether delivered free or sold, within the limits” of the city unless a license was first procured from the city manager. So doing was declared a nuisance. The ordinance was manifestly not aimed to prevent the littering of streets, as was the instant ordinance. The opinion in the Lovell Case, supra, written by Mr. Chief Justice Hughes negatives the idea that an ordinance aimed to prevent “the littering of the streets” is within the purview of the decision in that case. It is said, 58 S.Ct. page 669, 82 L.Ed. page 953, “It [the ordinance] is not limited to ways which might be regarded as inconsistent with the maintenance of public order, or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.”

The implication plainly is that an ordinance so aimed is not unconstitutional, if reasonable in its terms. The construction of the Milwaukee ordinance, as held by our state court, is binding upon the federal courts, so far as its aim or purpose is concerned. The purpose of the ordinance would not, of course, except it from operation of the freedom of speech, press and religion provisions of the United States Constitution, or from the operation of the XIVth Amendment thereto, U.S.C.A., if it were enforced in a discriminatory manner or in such a way as unreasonably to restrict the rights of the citizen thereunder. But the instant ordinance was found in the instant case not to have been so enforced, and the trial court held and we consider correctly that the defendant's rights were not unreasonably restricted. Unless and until delivery of the handbills was shown to result in a littering of the streets their distribution was not interfered with.

The only contention of the defendant here made, so far as we can discover, that was not made in the Kassen Case, supra, is that the distribution of the handbills was lawful under a statutory provision enacted since that case was decided, sec. 103.53(1) (e) of the State Labor Code, St. 1937. This declares lawful “Giving publicity to and *** communicating information regarding the existence of, or the facts involved in, any [labor] dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat thereof.”