Kunz v. New York
The Supreme Court struck down a New York City ordinance that let the police commissioner decide, with no written standards, who could get a permit to preach on the streets. Because a Baptist minister had been denied permits after his 1946 permit was revoked, the city was letting one official control in advance who could speak on religious topics in public.
The Court held this kind of open-ended licensing power over speech is an unconstitutional prior restraint under the First Amendment, even though the city could still punish genuine disorder after the fact through ordinary law enforcement.
“It is sufficient to say that New York cannot vest restraining control over the right to speak on religious subjects in an administrative official where there are no appropriate standards to guide his action.”
The Court's core holding that unchecked permit discretion over religious speech violates the First Amendment.
How it got here: New York's Court of Special Sessions convicted Kunz; the Appellate Part and the New York Court of Appeals affirmed over dissent, and he appealed to the Supreme Court.
The Case in Depth
What happened
Carl Jacob Kunz, an ordained Baptist minister, preached on New York City streets under a required city permit. In 1946 the police commissioner revoked his permit after complaints that he ridiculed and denounced other religions, including harsh remarks about Catholics and Jews. When Kunz reapplied in 1947 and 1948, the city refused each time without giving reasons. He kept preaching without a permit and was arrested and fined $10 in 1948.
The question before the Court
Could New York City require a street preacher to get a police permit before holding religious meetings, and let the police commissioner deny future permits without any written standards?
The Court's answer
No — the Court ruled that New York City could not require a street preacher to hold a police-issued permit when the ordinance gave the police commissioner unchecked power to deny renewal applications without any written standards. Because the commissioner could refuse a permit based solely on his own after-the-fact judgment about a speaker's past preaching, the scheme amounted to an unconstitutional prior restraint on speech protected by the First Amendment.
The Court distinguished this advance licensing power from the city's separate ability to punish actual disorder or violence after it happens through ordinary criminal law. It left that punitive option open, ruling only that the city could not condition the right to preach on the streets on a permit granted or withheld at one official's discretion.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Cities cannot hand a police official unchecked discretion to approve or deny permits for street preaching or similar speech based on vague or unwritten standards. Religious and political speakers gain protection against being silenced in advance by an administrator's personal judgment, while cities retain the power to prosecute actual violence or disorder after it happens.
What changes now
This is a final merits decision reversing Kunz's conviction. The city's ordinance, as applied through the police commissioner's unguided discretion to deny renewal permits, cannot be enforced against Kunz for preaching without a 1948 permit. The Court did not decide whether the city could punish him afterward if his preaching actually caused disorder, leaving that separate legal avenue open.
What this does not decide
The Court did not decide whether New York could later punish Kunz if his speeches actually caused disorder or violence — it addressed only the city's power to block his speech in advance through the permit system. It also did not review the fairness of the original 1946 permit revocation, since Kunz never sought judicial review of that decision.
Concurrences and dissents
Concurrence — Justice Black
Justice Black agreed with the outcome reversing the conviction but did not join the majority's reasoning, indicating he would have reached the same result on different or narrower grounds.
Dissent — Justice Jackson
“The end of the Court's method is chaos.”Jackson's warning that removing permit controls would let street speakers provoke uncontrollable disorder.
Justice Jackson argued the Court wrongly assumed Kunz's inflammatory street speeches were protected without evaluating whether they were 'fighting words' likely to provoke violence. He contended cities may reasonably use permit systems, with hearings and review, to control street preaching that threatens public order, and that New York's system—unlike a bare police order to disperse—gave Kunz notice, a hearing, and judicial review. He would have upheld the ordinance and conviction, warning that the decision would produce chaos by letting any speaker provoke disorder without prior check.
How the Court got there
The legal reasoning, step by step
- The Court examined the ordinance's structure and found it nowhere specified what conduct could justify refusing a permit application, meaning the police commissioner set the standard himself after the fact.
- Because an administrative official could deny future permits based on his own after-the-fact judgment about what counted as forbidden conduct, the Court treated this as a system of unchecked discretion over who may speak.
- Applying its line of cases on licensing schemes for speech, the Court held that any system letting an official grant or withhold permission to speak based on broad, undefined criteria unrelated to legitimate street-use regulation amounts to a 'prior restraint' — government approval required before speech can happen at all, which the First Amendment strongly disfavors.
- The Court distinguished restraint from later punishment, noting that if Kunz's speeches actually caused disorder or violence, the city had ordinary legal remedies to address that afterward, so protecting against prior restraint here did not leave the city defenseless against genuine unrest.
- Because the ordinance gave the commissioner this open-ended power to block speech in advance without guiding standards, the Court concluded the permit denial could not stand under the First Amendment as applied to the states through the Fourteenth Amendment.
Doctrinal impact
Cases affected by this decision
Overrules Smith v. New York (292 U.S. 606)
Jackson's dissent states the majority effectively overrules this earlier decision upholding the identical permit ordinance.
Reaffirms Cantwell v. Connecticut (310 U.S. 296)
The majority relies on this case's rule against licensing religious solicitation as still-controlling law.
Reaffirms Saia v. New York (334 U.S. 558)
The majority reaffirms this ruling striking down standardless permit requirements for loudspeakers.