69 N.Y.2d 576 (1987)
A municipality cannot, without duly enacted and content-neutral regulations, grant or deny access to public forums (like sidewalks) for the distribution of publications based on the subjective discretion of a government official.
Summary
The City of New York sought to prevent American School Publications from placing news bins for its Learning Annex Magazine on city sidewalks. The City argued the magazine was primarily commercial speech and thus could be restricted to maintain sidewalk aesthetics and safety. The court found that the City lacked any formal regulations governing sidewalk news bins, instead relying on an informal approval process managed by the Corporation Counsel. Because the city had not enacted any ordinances governing the placement of news boxes, the court ruled that the arbitrary discretion vested in a government authority is inconsistent with valid time, place and manner regulations because such discretion has the potential for suppressing a particular point of view.
Facts
American School Publications sought permission from New York City to install news bins on sidewalks to distribute its Learning Annex Magazine, which advertised courses offered by The Learning Annex, Inc.
The City’s Corporation Counsel denied permission, deeming the magazine “mere advertisement” and unsuitable for sidewalk distribution.
The Learning Annex modified the magazine to include articles and short stories, but the City still refused permission.
Without City approval, the Learning Annex placed approximately 220 news bins on sidewalks.
The City then sued, arguing that the bins were unsightly, unsanitary, and unsafe, seeking an injunction to remove them.
Procedural History
The Supreme Court initially viewed the modified magazine as a sham to convert commercial speech into non-commercial speech, but ruled the City lacked a narrowly drawn statute, rendering the City’s action unconstitutional.
The Appellate Division affirmed, emphasizing the absence of any statute or regulation and stating that the City must allow all applicants equal access or none at all.
The City appealed to the Court of Appeals.
Issue(s)
Whether, in the absence of local ordinances, the City of New York can invoke judicial enforcement to remove bins placed on sidewalks for the distribution of a free publication, based on the City’s determination that the publication is commercial speech.
Holding
No, because the City’s action was taken without the benefit of any regulation. The arbitrary discretion vested in some governmental authority is inconsistent with a valid time, place, and manner regulation because such discretion has the potential for suppressing a particular point of view.
Court’s Reasoning
The Court of Appeals held that while the City can regulate the installation of news bins, it must do so through properly drawn regulations that balance the City’s interest in health and safety with First Amendment freedoms of speech and press. The court emphasized that “[l]iberty of circulating is as essential to [First Amendment] freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value’.
The Court found that the City’s denial was made on the “private criteria of a subordinate attorney” without established guidelines. The court stated, “When a city allows an official to ban [a means of communication] in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas.”
The court noted that proper legislative bodies, such as the City Council, should enact regulations and that the Board of Estimate holds the exclusive implementing authority with respect to the use of City property. The court cited Heffron v. International Society for Krishna Consciousness, noting that arbitrary discretion in a government authority creates the potential for suppressing a particular point of view.
The Court stated that the City may distinguish between commercial and noncommercial speech in future regulations, which would not inherently offend the content neutrality requirement.