Central Figure in Constitutional Free-Speech Case

Irving Feiner, who played a significant role in the Constitutional debate over free speech when the Supreme Court upheld his conviction on charges of disorderly conduct for dangerously provoking a crowd as he spoke from a soapbox in Syracuse in 1949, died on Jan. 23 in Valhalla, N.Y. He was 84. The cause was a ruptured cerebral aneurysm, a ballooning blood vessel in the brain, his daughter Emily said.

Mr. Feiner said years after his conviction that he was “a contentious young man” when, as a Syracuse University student, he mounted the soapbox at South McBride and Harrison Streets around 6:30 p.m. on March 8, 1949, to promote a leftist rally to be held at a hotel in Syracuse. The police said he urged blacks to take up arms against whites. Among other targets, he castigated the Syracuse mayor, the local political system and the American Legion.

(He always denied widespread reports that he called President Harry S. Truman a bum, saying that if he had meant to insult the president, he would have used an earthier phrase.)

The police estimated that 75 to 80 whites and blacks — 25 or 30, according to Mr. Feiner’s side — had gathered and were blocking the sidewalk and becoming restive. People heckled Mr. Feiner, and at least one man threatened him.

Saying he feared a riot, a police officer at least twice asked Mr. Feiner to get down from the box. Mr. Feiner refused and was arrested on the misdemeanor charge of disorderly conduct, found guilty by a judge and sentenced to 30 days in jail.

The conviction was upheld by two New York State appellate courts, and on Jan. 15, 1951, the United States Supreme Court followed suit by a 6-to-3 vote. Writing for the majority in Feiner v. New York, Chief Justice Fred M. Vinson said that he had no objection to the content of Mr. Feiner’s remarks, but that the reaction they engendered justified his arrest and conviction.

A dissenting opinion by Justice Hugo Black said that Mr. Feiner’s arrest resulted from his “deliberate defiance” of an arbitrary command and nothing else.

“I understand that people in totalitarian countries must obey arbitrary orders,” Justice Black wrote. “I had hoped that there was no such duty in the United States.”

The legal principle involved came to be known as the “heckler’s veto,” meaning that a disruptive listener could effectively stop a controversial speaker by threatening havoc. Over time, the Supreme Court’s 1951 decision, which put public peace ahead of freedom of expression, was superseded by nearly opposite judgments in later cases.

“The court abandoned the approach that the expression of mere ideas themselves could be punished as fighting words leading to breaches of the peace,” Jack Levin and Gordana Rabrenovic wrote in the journal American Behavioral Scientist in 2001.

Irving Hyman Feiner was born in Brooklyn on Nov. 23, 1924, to immigrants from Poland who ran a candy store. He grew up in Harlem and the Bronx and dropped out of high school to serve in the Army in Europe in World War II. After the war, he attended Syracuse University on the G.I. Bill.

He was a junior, and active in a leftist organization called the Young Progressives of America, when the group invited O. John Rogge, a former United States assistant attorney general, to speak. Mr. Rogge was part of the defense team for a group of black men accused of killing an elderly white shopkeeper in Trenton.

Called the Trenton Six, they were first sentenced to death by an all-white jury on the basis of confessions that later proved to be false. They became a celebrated cause of the left and civil rights groups. Eventually, four were acquitted, and two were convicted and sentenced to life imprisonment.

Mr. Rogge and the folk singer Pete Seeger were scheduled to appear in a public school auditorium in Syracuse, but at the last moment Mayor Frank J. Costello revoked the permit. Mr. Feiner and others took to the streets with loudspeakers to promote attendance at the new location, the Hotel Syracuse.

After his arrest, Mr. Feiner was expelled from Syracuse University, and his admission to several law schools was revoked. He went on to success in the printing, movie exhibition and tropical-fish businesses. He ran unsuccessfully for offices that included Rockland County executive, state assemblyman and mayor of Nyack, N.Y., where he lived. He wrote more than one cantankerous letter to newspapers.

Mr. Feiner is survived by his wife of 58 years, the former Trudi Kramer; his daughters Susan Feiner and Emily Feiner; and five grandchildren. Another daughter, Rachael, died in 1971.

He returned to Syracuse and finished the work for his undergraduate degree, which he received in 1984. In 2007, the university invited him back to lecture on free speech.

February 3, 2009
Irving Feiner, 84, Central Figure in Constitutional Free-Speech Case, Is Dead
By DOUGLAS MARTIN