Commonwealth v. Dubin

327 Mass. 681 (1951)

100 N.E.2d 843

COMMONWEALTH vs. ROBERT DUBIN (and two companion cases[1]).

Supreme Judicial Court of Massachusetts, Suffolk.

May 8, 1951.

September 12, 1951.

Present: QUA, C.J., LUMMUS, WILKINS, SPALDING, & WILLIAMS, JJ.

D. Holmes, (G. Kantrovitz with him,) for the defendants.

J.F. McAuliffe, Assistant District Attorney, for the Commonwealth.

QUA, C.J.

These are three complaints for alleged violation of Rule 3 of the rules governing reservations under control of the metropolitan district commission (see G.L. [Ter. Ed.] c. 92, § 37) by displaying certain signs and other advertising. The material portion of Rule 3 reads, "No *682 person shall ... post, paint, affix, distribute or display any sign, notice, circular, program, placard or any other advertising device...."

There was evidence that on the afternoon of July 23, 1950, the three defendants, with from fifteen to seventeen other persons, assembled on Revere Beach Reservation within the metropolitan park district and occupied an area of about fifty square feet,[1a] within which area the group had posted signs attached to sticks embedded in the sand. Four of the signs were on cloth eight feet by fourteen inches and were about five feet above the ground. Six of the signs were on cardboard twenty-four inches by thirty inches. On the signs were printed these words, "We Want Peace"; "Homes and Schools not Atomic Bombs"; "Support the International Red Cross Peace Proposal"; "Outlaw the Atom Bomb"; "We Want to Grow up in a World at Peace"; "Young Progressives of America." There was evidence that there was some inconvenience to the public in moving across the area, but that there was "no unrest or commotion at the scene," although the beach was crowded. There was also evidence of admissions by the defendants that they posted or assisted in posting some of the signs.

The fundamental question in the case is whether so much of Rule 3 as prohibits the display of any sign is unconstitutional on its face as an infringement upon the right of free speech as guaranteed by the Fourteenth Amendment under the rule established by recent decisions of the Supreme Court of the United States and followed in our own decisions. We are of opinion that it is.

The part of Rule 3 here involved attempts a complete and sweeping prohibition of the display of any sign or other advertising device in what is substantially a public park where all persons have a right to go. The rule cannot fairly be construed as limited to commercial advertising. See Commonwealth v. Kimball, 299 Mass. 353, 356. It is not aptly and narrowly phrased to protect the public from annoyance *683 or danger or to protect public property. It does not merely regulate the size or position of signs. It seeks to prohibit altogether in a public place one of the common and normally harmless means of communicating ideas. It therefore falls within the scope of the decisions in Commonwealth v. Pascone, 308 Mass. 591, and Commonwealth v. Gilfedder, 321 Mass. 335. See Commonwealth v. Akmakjian, 316 Mass. 97, 101-102; Kenyon v. Chicopee, 320 Mass. 528, 531; Commonwealth v. Carpenter, 325 Mass. 519. These cases contain adequate citations of the decisions of the Supreme Court of the United States upon which they rest. A few of the more recent cases in that court, by which also we are bound, are Saia v. New York, 334 U.S. 558, Niemotko v. Maryland, 340 U.S. 268, and Kunz v. New York, 340 U.S. 290. Compare Kovacs v. Cooper, 336 U.S. 77. See Dennis v. United States, 341 U.S. 494.

This decision is confined to the precise issue here discussed. It is not necessary to consider what position we should take if, for example, instead of simply displaying signs, the defendants had painted a sign upon some permanent structure or had violated any other of the several prohibitions which are joined in Rule 3. The distinction between an unconstitutional prohibition of free speech and a reasonable regulation of the exercise of that right may at times be difficult to draw, but the distinction must be scrupulously maintained.

In each case the entry will be

Exceptions sustained.

Judgment for the defendant.

[1] The companion cases are those of Commonwealth vs. Arthur Jones and Commonwealth vs. Edward S. Mendelsohn.

[1a] The area seems small for so many signs of the sizes stated, but we are following the record.