New York Law Review

Tag: First Amendment

  • Urowsky v. Board of Regents, 38 N.Y.2d 364 (1975): Regulation of Prescription Drug Price Advertising

    Urowsky v. Board of Regents, 38 N.Y.2d 364 (1975)

    A state regulation prohibiting the advertising of discount prescription prices by pharmacists does not violate the First or Fourteenth Amendments when the regulation is rationally related to preserving local pharmacies and preventing destructive competition, provided consumers can still access price information.

    Summary

    Urowsky, a pharmacist, challenged a New York regulation prohibiting the advertisement of discount prescription prices. The Board of Regents argued the regulation was necessary to prevent destructive competition among pharmacies and ensure their continued availability. The New York Court of Appeals upheld the regulation, finding it rationally related to the state’s interest in maintaining local pharmacies. The court distinguished this case from others involving protected speech, emphasizing that the regulation targeted only price competition advertising, not the dissemination of information about services, and that consumers still had access to pricing information.

    Facts

    Urowsky, a pharmacist and owner of a discount pharmacy, advertised discounts on prescription drugs. The State Board of Pharmacy charged him with unprofessional conduct for violating a regulation prohibiting such advertising. Urowsky sued, seeking a declaration that the regulation was invalid and an injunction against disciplinary action.

    Procedural History

    Urowsky initially filed suit in the Supreme Court, Albany County. Both Special Term and the Appellate Division upheld the constitutionality of the regulation. Urowsky then appealed to the New York Court of Appeals.

    Issue(s)

    Whether a regulation prohibiting pharmacists from advertising discount prescription prices violates the First and Fourteenth Amendments of the U.S. Constitution.

    Holding

    No, because the regulation is a valid exercise of the state’s power to regulate professions, is rationally related to the state’s interest in preserving local pharmacies and preventing destructive competition, and does not unduly restrict access to prescription drug price information.

    Court’s Reasoning

    The court reasoned that the regulation fell within the Commissioner of Education and the Board of Regents’ authority under the Education Law to regulate professions. The court found the regulation was “rationally related to this State’s interest in the preservation of local pharmacies which serve a vital function in the convenient, rapid filling of prescriptions and in the prevention of destructive competition in the pharmaceutical profession.” It distinguished this case from cases involving protected speech, emphasizing that the regulation targeted only price competition, not the dissemination of information about services. The court also noted that another regulation mandated the posting of prescription prices in pharmacies, ensuring consumers had access to the information. The court stated, “the advertising prohibited by the Board of Regents relates exclusively to price competition, an area of particular concern to the State because of the probable deleterious effects of uncontrolled advertising upon the availability of prescription drugs from neighborhood pharmacies.” The court concluded that the regulation only affected the manner in which price information was conveyed, and that the state retains authority to regulate the manner of commercial advertising. The court rejected the argument that a “right to know” was violated as consumers could still obtain price information. The court further reasoned that even if such a right existed, the pharmacist did not have standing to assert the rights of consumers. The court distinguished Bigelow v. Virginia, stating that the regulation here does not prohibit the dissemination of knowledge concerning services intimately related to the exercise of a constitutional right. It stated, “Unlike Bigelow v Virginia (421 US 809, 822, supra), the regulation here does not prohibit the dissemination of knowledge concerning services intimately related to the exercise of a constitutional right (cf. Roe v Wade, 410 US 113).”

  • People v. Duryea, 76 Misc. 2d 947 (N.Y. 1974): Constitutionality of Sound Amplification Permit Requirements

    People v. Duryea, 76 Misc. 2d 947 (N.Y. 1974)

    Municipal ordinances regulating the use of sound amplification equipment in public spaces must be narrowly tailored to serve a significant government interest and must not unduly infringe upon First Amendment rights of free speech and assembly.

    Summary

    The defendant was convicted for using sound amplification equipment without a permit, violating a city ordinance. The County Court reversed, finding the ordinance unconstitutional. The New York Court of Appeals affirmed, holding the ordinance was an overbroad restriction on free speech. The ordinance’s requirements of a five-day waiting period, disclosure of all speakers’ names, denial of permits to those with criminal records, and description of the subject matter to be broadcast, were deemed impermissible infringements on First Amendment rights. The Court emphasized the importance of balancing free speech with the state’s interest in public order but found the ordinance’s restrictions exceeded what was necessary.

    Facts

    The respondent, a candidate for the local school board, used sound amplification equipment on a public street corner in Buffalo without obtaining a permit as required by a city ordinance. She was subsequently convicted in City Court.

    Procedural History

    The City Court of Buffalo convicted the respondent. The Erie County Court reversed the conviction, deeming the ordinance an unconstitutional infringement of First Amendment rights. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether a municipal ordinance requiring a permit for the use of sound amplification equipment in public places constitutes an unconstitutional infringement on First Amendment rights to free speech and assembly.
    2. Whether specific provisions of the ordinance, such as the five-day waiting period, the requirement to disclose the names of all speakers, the denial of permits based on criminal records, and the required description of the broadcast’s subject matter, are impermissible restrictions on free speech.

    Holding

    1. Yes, because the ordinance, as written, imposes overly broad restrictions on free speech and assembly, exceeding what is necessary to serve a legitimate government interest.
    2. Yes, because these provisions individually and collectively create an impermissible prior restraint on speech, are overbroad, and grant excessive discretion to the permitting authority.

    Court’s Reasoning

    The court reasoned that while municipalities can enact legislation to promote public convenience, such laws must be carefully balanced against the fundamental right to free speech and assembly in public spaces. The court found several provisions of the Buffalo ordinance to be unconstitutional:

    • Five-day waiting period: This requirement was deemed to cast a chill on freedom of speech, particularly in time-sensitive contexts like political campaigns, undermining the exercise of a constitutional right, and mere administrative convenience does not justify such a delay.
    • Disclosure of speakers’ names: Requiring the names of all speakers was considered a form of censorship, as the focus of regulation should be the equipment’s use, not the speakers themselves. The court cited Thomas v. Collins, stating that such requirements are superfluous and infringe on free speech.
    • Denial based on criminal records: This provision was found to be an instance of impermissible overbreadth and a prior restraint on speech. The court referenced Saia v. New York, Cantwell v. Connecticut, Lovell v. Griffin, and Hague v. C.I.O., emphasizing that past convictions should not automatically disqualify individuals from exercising their right to free speech.
    • Description of subject matter: Requiring applicants to describe the nature of their broadcast was also deemed a form of prior restraint, granting excessive discretion to the police, contrary to Saia v. New York.

    The court emphasized that the power of the state to infringe on First Amendment freedoms is limited and defined by a stringent requirement of real necessity, not mere rationality. As the court stated, “Where a statute is couched in such broad language that it is subject to discriminatory application, the resulting infringement on the exercise of freedom of speech far outweighs the public benefit sought to be achieved.” (People v. Katz, 21 NY2d 132, 135)

  • Anderson v. New York Telephone Co., 35 N.Y.2d 746 (1974): Telephone Company’s Liability for Subscriber’s Defamatory Messages

    Anderson v. New York Telephone Co., 35 N.Y.2d 746 (1974)

    A telephone company is not liable for defamatory messages transmitted by a subscriber using its equipment, even if the company has notice of the content of the messages, because the company acts as a passive conduit and does not “publish” the defamatory material.

    Summary

    This case addresses whether a telephone company can be held liable for defamatory messages recorded and disseminated by one of its subscribers using equipment leased from the company. The plaintiff, a Bishop, sued the New York Telephone Company after a subscriber broadcasted defamatory accusations about him via recorded telephone messages. The Court of Appeals held that the telephone company was not liable, reasoning that it did not “publish” the defamatory material. The court likened the telephone company’s role to that of a passive conduit, similar to a company that leases typewriters or photocopy machines, and emphasized the company’s obligations as a public utility to provide service without censoring legal content.

    Facts

    Plaintiff was a Presiding Bishop. Defendant leased equipment to Donald L. Jackson, who broadcasted defamatory messages about the plaintiff through recorded telephone messages. Callers would hear accusations against plaintiff, including claims of illegitimate children. Plaintiff informed the phone company about the defamatory messages and provided proof that these claims were unfounded. The phone company’s area manager indicated he would try to get Jackson to terminate the recordings, but the messages continued, with Jackson adding further allegations.

    Procedural History

    Plaintiff sued the New York Telephone Company for defamation. The defendant moved for dismissal, arguing that the complaint failed to state a cause of action. Special Term initially focused on qualified privilege, ruling a factual question existed. Following a trial, the court granted judgment for the defendant, specifically finding that the New York Telephone Company did not publish the scandalous material. The Appellate Division reversed, ordering a new trial, focusing on the phone company’s potential reckless disregard. The Court of Appeals reversed the Appellate Division, reinstating the original judgment dismissing the complaints.

    Issue(s)

    Whether a telephone company, by providing equipment used to transmit defamatory messages, can be considered to have “published” the defamatory material and thus be liable for defamation, even when it has notice of the content of those messages.

    Holding

    No, because in order to be deemed to have published a libel a defendant must have had a direct hand in disseminating the material whether authored by another, or not. The telephone company’s role is merely passive and no different from any company which leases equipment to another for the latter’s use.

    Court’s Reasoning

    The Court of Appeals reasoned that a telephone company is a public utility with an obligation to provide service for legal uses. It cannot be considered a publisher of defamatory material simply because its equipment is used to transmit such material. The court distinguished the telephone company’s role from that of media outlets with editorial functions, such as newspapers or telegraph companies (where employees actively aid in the transmission of messages). The telephone company’s role is passive, similar to a company leasing typewriters or photocopy machines, which would not be liable for libelous content produced using their equipment. The court stated that: “He who furnishes the means of convenient circulation, knowing, of having reasonable cause to believe, that it is to be used for that purpose, if it is in fact so used, is guilty of aiding in the publication and becomes the instrument of the libeler” does not apply to telephone companies. The court emphasized that imposing liability on the phone company would create an undue burden, requiring them to censor content and potentially violating subscribers’ rights. The Court concluded that Jackson published the libel and the equipment from defendant did not change that.

  • Schwartz v. American Federation of Television and Radio Artists, 344 N.Y.S.2d 268 (1973): Union Shop Agreements and Freedom of Speech

    344 N.Y.S.2d 268 (1973)

    A union shop agreement, authorized by federal labor law, requiring employees to pay union dues as a condition of employment, does not violate an employee’s First Amendment right to freedom of speech where the agreement serves a legitimate purpose of promoting collective bargaining and industrial peace.

    Summary

    A radio commentator, Schwartz, challenged the constitutionality of being required to join and pay dues to the American Federation of Television and Radio Artists (AFTRA) as a condition of his employment with Mutual Broadcasting System. He argued that this requirement, authorized by Section 8(a)(3) of the National Labor Relations Act (NLRA), violated his First Amendment right to freedom of speech. The court held that the union shop agreement, permissible under the NLRA, did not unconstitutionally restrain Schwartz’s free speech, emphasizing the NLRA’s purpose of promoting industrial peace and collective bargaining, and noting the absence of evidence that AFTRA censored or restricted Schwartz’s broadcasts.

    Facts

    Schwartz, a radio commentator, was required by his employer, Mutual Broadcasting System, to join AFTRA, pay dues, and comply with its directives as a condition of his employment. This requirement stemmed from a union shop contract between Mutual and AFTRA, which designated AFTRA as the exclusive bargaining agent for Mutual’s employees, including broadcasters like Schwartz. Schwartz had been a dues-paying member of AFTRA since 1966. He claimed that AFTRA’s requirement violated his First Amendment rights, citing a 1967 strike that interrupted his broadcasting and feelings of intimidation from AFTRA’s disciplinary powers.

    Procedural History

    Schwartz filed suit seeking a declaratory judgment that the union shop requirement violated his First Amendment rights. The trial court denied Schwartz’s motion for summary judgment and granted AFTRA’s cross-motion, dismissing the complaint. The Appellate Division modified the order, declaring that Section 8(a)(3) of the NLRA, authorizing AFTRA to require dues, did not violate the First Amendment, and otherwise affirmed the order. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Does Section 8(a)(3) of the National Labor Relations Act, by requiring Schwartz to pay AFTRA dues, unconstitutionally act as a prior restraint on his right to free speech under the First Amendment?

    Holding

    1. No, because the requirement to pay union dues as a condition of employment under a valid union shop agreement, authorized by federal labor law, does not constitute an unconstitutional prior restraint on free speech where it serves a legitimate purpose of promoting collective bargaining and industrial peace, and where there is no evidence of censorship or restriction of the employee’s speech.

    Court’s Reasoning

    The court reasoned that Congress has the power to regulate commerce, including labor relations, to ensure industrial peace. The NLRA, including Section 8(a)(3), was enacted to promote collective bargaining and prevent labor disputes that disrupt interstate commerce. Requiring employees to pay union dues under a union shop agreement is a reasonable means of supporting the union’s role as the exclusive bargaining representative, which benefits all employees in the bargaining unit. The court emphasized that freedom of speech does not protect against all burdens; the key is whether the burden is a prior restraint on utterance or publication. Here, there was no evidence that AFTRA censored Schwartz’s broadcasts or restricted his ability to express his views. The court distinguished this case from situations where unions attempted to punish members for exercising their free speech rights, emphasizing that AFTRA had not attempted to censor or discipline Schwartz. The court observed that union activity is group activity, and its services benefit all, so it is reasonable for all to share the cost. The court noted, “Union activity is by its very nature group activity, and is grounded on the notion that strength can be garnered from unity, solidarity and mutual commitment.” The court concluded that the union shop agreement and dues requirement did not constitute government action infringing on Schwartz’s First Amendment rights, but rather a contractual obligation permissible under federal labor law. The court also observed that jurisdiction to determine unfair labor practices lies with the NLRB, not the court.

  • Bergstein v. Board of Education, Ossining Union Free School District, 34 N.Y.2d 318 (1974): Burden of Proof in Tenure Denial Cases Alleging Constitutional Violations

    Bergstein v. Board of Education, Ossining Union Free School District, 34 N.Y.2d 318 (1974)

    In a tenure denial case where a probationary teacher alleges that the denial was in retaliation for exercising constitutional rights, the teacher bears the burden of proving the unconstitutional motive; the school board does not have the initial burden to prove a proper motive.

    Summary

    Leonard Bergstein, a probationary teacher, was denied tenure. He claimed the denial was due to his exercise of First Amendment rights, including attending a political rally, providing students with a pamphlet on student rights, wearing a western-style hat, and his race, religion, and political activism. The lower court dismissed his petition, finding no evidence linking the denial to these factors. The Appellate Division ordered a new hearing, believing the school board needed to prove tenure wasn’t denied for impermissible reasons. The New York Court of Appeals reversed, holding that the teacher failed to prove his allegations of constitutional deprivation and that the burden of proof improperly shifted to the school board.

    Facts

    Leonard Bergstein was hired as a probationary social studies teacher in June 1968. He remained untenured for three academic years. On August 16, 1971, the Ossining School Board denied him tenure. Bergstein alleged this denial was due to his attendance at a peaceful political rally, providing students optional reading material on student rights, wearing a western-style hat, and his race, religion, and political activism.

    Procedural History

    Bergstein filed an Article 78 proceeding to review the school board’s decision. Special Term dismissed the petition, finding Bergstein failed to establish a prima facie case of constitutional violation. The Appellate Division reversed and ordered a new hearing, stating the board must prove tenure wasn’t denied for impermissible reasons. The New York Court of Appeals then reversed the Appellate Division’s order and reinstated the Special Term’s dismissal.

    Issue(s)

    1. Whether a probationary teacher, alleging tenure denial was retaliatory for exercising constitutional rights, bears the burden of proving the unconstitutional motive.
    2. Whether statements relied upon by school board members in denying tenure constitute inadmissible hearsay.

    Holding

    1. Yes, because the teacher alleging constitutional deprivation must present evidence to show their rights were violated.
    2. No, because the statements were offered to show the board members’ state of mind, not the truth of the statements themselves.

    Court’s Reasoning

    The court emphasized that a school board has broad discretion in granting tenure and can deny it without a hearing or stated reasons. However, this discretion is limited; a school board cannot deny tenure in retaliation for exercising constitutional rights. The court found Bergstein failed to provide sufficient evidence that the tenure denial was based on unconstitutional reasons. The court stated, “While constitutional deprivation must be remedied, the aggrieved petitioner in such cases is required to bear the burden of producing legal and competent evidence to show the deprivation of his rights.” It was not the board’s responsibility to prove their reasons were proper; Bergstein had to prove they were improper. The court also addressed the hearsay issue. Board members testified they based their votes on statements from others, such as Bergstein undermining authority and showing insolence. The court clarified these statements were not offered to prove their truth but to demonstrate the board members’ state of mind when voting. The court cited Ferrara v. Galluchio, 5 N.Y.2d 16 and Provenzo v. Sam, 23 N.Y.2d 256, noting such testimony is an “apparent exception” to the hearsay rule because the out-of-court statements aren’t offered assertively to prove their truth.

  • Russian Church of Our Lady of Kazan v. Terlecky, 414 N.Y.S.2d 459 (1979): Resolving Church Property Disputes Using Neutral Principles

    Russian Church of Our Lady of Kazan v. Terlecky, 414 N.Y.S.2d 459 (N.Y. 1979)

    Civil courts can resolve church property disputes by applying neutral principles of law without delving into religious doctrine, ensuring the free exercise of religion while adjudicating property rights.

    Summary

    This case concerns a dispute between two factions within the Russian Church of Our Lady of Kazan (Kazan) regarding control of the parish and its properties. One faction sought to remain under the jurisdiction of the Metropolia, while the other attempted to align with the Synod of Bishops. The court held that the property belonged to the faction loyal to the Metropolia, the ecclesiastical body under which Kazan was originally incorporated and operated until the schism. The decision was based on neutral principles of law, recognizing Kazan’s initial and sustained affiliation with the Metropolia, without resolving any underlying religious controversies.

    Facts

    In 1942, members of the Russian community in Sea Cliff, New York, organized the Russian Church of Our Lady of Kazan under the guidance of Metropolitan Theophilus of the Russian Orthodox Greek Catholic Church of America (the Metropolia). The community committed to following the Metropolia’s statutes. In December 1942, the church incorporated under New York’s Religious Corporations Law, with a rector appointed by Metropolitan Theophilus serving as a trustee. In 1970, a schism occurred, with one faction (the appellants) attempting to secede from the Metropolia and align with the Synod of Bishops of the Russian Orthodox Church Outside Russia.

    Procedural History

    Two actions were initiated: one by the faction loyal to the Metropolia to enjoin the secessionists (Action No. 1), and another by the secessionists seeking a declaratory judgment validating their actions (Action No. 2). The trial court ruled in favor of the Metropolia faction. The Appellate Division affirmed in Action No. 1 and modified in Action No. 2 to reinstate the complaint and declare the parties’ rights. The New York Court of Appeals then reviewed the case.

    Issue(s)

    Whether the control of the property of the Russian Church of Our Lady of Kazan should be vested in a group loyal to the Metropolia, under which it was founded, or be given over to a dissident faction seeking to align with the Synod of Bishops.

    Holding

    Yes, because the Russian Church of Our Lady of Kazan knowingly and voluntarily chose the Metropolia as its governing body at its founding and consistently recognized its authority until the schism; therefore, the property rights belong to the faction that remained loyal to the Metropolia.

    Court’s Reasoning

    The court emphasized its role was to resolve the property dispute, not to delve into religious doctrine. It relied on the principle that civil courts can apply neutral principles of law to church property disputes without violating the First Amendment. The court noted uncontroverted evidence that Kazan considered itself affiliated with the Metropolia from its organization in 1942 until 1970. The church was incorporated under the Metropolia’s guidance, followed its statutes, and recognized its authority. The court found no evidence of a direct tie to the Synod of Bishops. The court quoted Presbyterian Church v. Hull Church, stating that the First Amendment commands civil courts to decide church property disputes without resolving underlying religious controversies. Because Kazan was incorporated into the Metropolia, the court reasoned that the right to the parish property belonged to the faction that remained loyal to the Metropolia at the time of the schism. The Court stated, “Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. And there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘ establishing ’ churches to which property is awarded.”

  • People v. Keough, 29 N.Y.2d 272 (1971): Flag Desecration and Incitement to Violence

    People v. Keough, 29 N.Y.2d 272 (1971)

    The display of photographs that incorporate the flag of the United States, without evidence of incitement to violence or a breach of the peace, is insufficient to sustain a conviction under a statute prohibiting flag desecration.

    Summary

    Keough was convicted of violating New York’s General Business Law for displaying photographs that allegedly desecrated the U.S. flag. The Court of Appeals reversed the conviction, finding that the photographs, unlike the constructions in a prior case (People v. Radich), did not present a likelihood of inciting disorder or a breach of the peace. The court emphasized the absence of any evidence suggesting that the photographs incited violence or public disorder, thus distinguishing the case from situations where flag desecration posed a tangible threat to public safety. The ruling underscores the importance of demonstrating a direct link between the expressive act and the potential for imminent lawless action.

    Facts

    The defendant, Keough, was indicted for violating subdivisions (d) and (f) of section 136 of the General Business Law. The indictment stemmed solely from photographs displayed by Keough, which were alleged to have defied and cast contempt upon the flag of the United States. There was no evidence presented to suggest that the display of these photographs caused any actual disturbance or incited violence.

    Procedural History

    The County Court initially disallowed a demurrer to the indictment, relying on a comparison to the factual situation in People v. Radich. The Appellate Division affirmed this decision, finding that the display of photographs, similar to the constructions in Radich, threatened the legitimate public interest in preventing a breach of the peace and an outbreak of violence. The New York Court of Appeals then reviewed the Appellate Division’s order.

    Issue(s)

    Whether the display of photographs that incorporate the U.S. flag, without any evidence of incitement to violence or a breach of the peace, is sufficient to sustain a conviction under a statute prohibiting flag desecration.

    Holding

    No, because the photographs did not present a likelihood of incitement to disorder or a breach of the peace as required to justify a restriction on expressive conduct. There was no evidence the photographs incited violence or public disorder.

    Court’s Reasoning

    The Court of Appeals distinguished the case from People v. Radich, where the displayed constructions were deemed to have a “likelihood of incitement to disorder” and presented an opportunity for protest and counterprotest, leading to a potential for public disorder. The court emphasized that the photographs in Keough’s case lacked any comparable element that would suggest a similar risk of public disturbance. The court stated, “Clearly, however, there is nothing in the photographs, which concededly constituted the sole basis for the indictment before us, comparable in any substantial degree to the ‘constructions’ in Radich (26 Y 2d 114, 117, n. 1) and nothing, certainly, offering the ‘likelihood of incitement to disorder’ and by public exhibition affording an opportunity for protest and counterprotest with ‘consequent potential of public disorder’“, such as was found in Radich. Because the prosecution failed to demonstrate that the photographs created a tangible risk of inciting violence or public disorder, the court found the conviction unsustainable. The Court did not reach any constitutional issues, resolving the case on the specific facts presented.

  • People v. Matherson, 16 N.Y.2d 509 (1965): Warrantless Seizure of Obscene Material

    People v. Matherson, 16 N.Y.2d 509 (1965)

    A search warrant for obscene materials must describe the items to be seized with particularity; a warrant that allows the police to determine what is obscene is unconstitutional; Judicially unsupervised police seizure of evidence on which convictions are based is unlawful.

    Summary

    This case concerns the seizure of magazines from a bookstore based on a search warrant. The warrant was issued based on an affidavit describing the magazines as obscene but failed to specifically name or describe them in the warrant itself. The police seized over 1,000 magazines, and the bookstore owners were convicted on counts related to two specific magazines not named in the original affidavit or warrant. The New York Court of Appeals reversed the conviction, holding that the seizure was unlawful because the warrant allowed the police to exercise unsupervised judgment in determining what constituted obscenity, violating constitutional protections against unreasonable searches and seizures.

    Facts

    A police officer obtained a search warrant for the appellants’ bookstore based on an affidavit stating the appellants possessed obscene material and naming specific magazines. The warrant authorized a search for magazines and photographs but did not name or describe the magazines mentioned in the affidavit. During the search, the police seized over 1,000 magazines and calendars and arrested the appellants for violating obscenity laws. The convictions rested on two magazines, “Nude Circle” and “Photo Field Trip,” which were not described in the search warrant or supporting affidavit.

    Procedural History

    The appellants were indicted on 54 counts and moved to suppress the seized material, which the Monroe County Court denied. They pleaded guilty to five counts, and the Appellate Division reversed as to three counts but affirmed the convictions on the remaining two, based on the magazines “Nude Circle” and “Photo Field Trip.” Three counts were previously dismissed by the County Court. The Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    Whether the seizure of the magazines “Nude Circle” and “Photo Field Trip,” which were not specifically named or described in the search warrant or supporting affidavit, was a violation of the appellants’ constitutional rights against unreasonable searches and seizures.

    Holding

    Yes, because the seizure of materials not described in the warrant or affidavit allowed the police to exercise unsupervised judgment in determining what was obscene, violating constitutional protections.

    Court’s Reasoning

    The Court of Appeals held that the seizure was unlawful because the magazines on which the convictions rested were not described in the search warrant or underlying affidavit. The court emphasized that the warrant permitted the police to seize material based on their own judgment of what constituted obscenity, without prior judicial review of the specific items seized. This judicially unsupervised seizure violated the principles established in A Quantity of Books v. Kansas, 378 U.S. 205 (1964) and Marcus v. Search Warrant, 367 U.S. 717 (1961), which require judicial oversight to prevent wide police discretion in seizing written material. The court quoted People v. Rothenberg, 20 N.Y.2d 35, stating, “The basic defect is that the language of the warrant delegates to the police officer executing it the function of determining whether the material is obscene”. The court further noted that the warrant was so broad that it could have permitted the seizure of noted works of art or medical texts simply because they portrayed genitalia. The court found that the seizure was not a valid search incident to arrest because the warrant for arrest concerned different publications, and those publications were not the basis of the convictions. The Court concluded that the judicially unsupervised police seizure of evidence was contrary to both Supreme Court and New York Court of Appeals precedent and reversed the lower court’s orders, granted the motion to suppress the seized material, and dismissed the remaining counts of the indictment.

  • People v. Heller, 29 N.Y.2d 319 (1971): Judicial Scrutiny Sufficient for Obscenity Warrant Without Prior Adversary Hearing

    People v. Heller, 29 N.Y.2d 319 (1971)

    A judge’s independent viewing of a film and determination of probable cause for obscenity is sufficient for issuing a seizure warrant without requiring a prior adversary hearing.

    Summary

    This case addresses whether a prior adversary hearing is required before a warrant can be issued for the seizure of an allegedly obscene film. The New York Court of Appeals held that a judge’s independent viewing of the film, followed by a determination of probable cause, satisfies constitutional requirements. The Court emphasized that judicial scrutiny, not merely a police officer’s assertion, is necessary for issuing warrants related to obscenity. The court distinguished the case from situations involving broad seizures of publications and highlighted the practical difficulties of requiring adversary hearings for warrant applications based on visual media.

    Facts

    The defendant was prosecuted under Section 235.05 of the Penal Law for exhibiting the film “Blue Movie.” A judge attended a public theater showing the film. After viewing the film, the judge determined there was probable cause to believe the film was obscene. Based on this determination, the judge issued warrants for the seizure of the film and the defendant’s arrest.

    Procedural History

    The trial court found the defendant guilty. The Appellate Term affirmed the conviction. The case then reached the New York Court of Appeals.

    Issue(s)

    Whether, before issuing warrants for the seizure of a film and arrest based on obscenity, the defendant is entitled to an adversary hearing before the issuing judge to contest the film’s obscenity.

    Holding

    No, because independent judicial action of viewing the film and determining probable cause met constitutional requirements; an adversary hearing is not mandated by the Supreme Court.

    Court’s Reasoning

    The Court reasoned that the procedure followed—the judge viewing the film and independently determining probable cause—satisfied the requirements established in Marcus v. Search Warrant, which mandates judicial supervision in obscenity cases to prevent seizures based solely on police judgment. The Court distinguished this case from Marcus, where warrants were issued based on a police officer’s conclusory assertions without judicial scrutiny. The Court noted that the Supreme Court in Lee Art Theatre v. Virginia suggested that a judge’s viewing of the film might be sufficient, without explicitly requiring an adversary hearing.

    The Court further argued that requiring adversary hearings before issuing warrants in obscenity cases presents practical difficulties. Unlike factual disputes where an adversary hearing helps a magistrate determine probable cause, in obscenity cases, the judge has already viewed the film. “But when a Magistrate sees a film, it is not much help to him, or indeed to the parties, in deciding probable cause to have counsel on one side tell him what he has just seen is obscene and on the other that it is not.” The court also distinguished the seizure of a single film as evidence from the wide-ranging seizure of publications that could amount to suppression of expression, as in Marcus. The court found that the New York statute met the standards set forth in Roth v. United States, as it pertained to prurient interest, patent offensiveness, and lack of redeeming social value.

    The court emphasized the need for objective judgment by judges and affirmed the lower courts’ decisions, concluding that the film was obscene and prosecution was not barred by the First Amendment.

  • People v. Radich, 26 N.Y.2d 114 (1970): Flag Desecration as Protected Artistic Expression

    People v. Radich, 26 N.Y.2d 114 (1970)

    The artistic use of the American flag as a medium for protest, displayed in a private art gallery, is a form of expression protected by the First Amendment and cannot be criminalized absent a direct threat to public order.

    Summary

    Radich, an art gallery owner, was convicted of violating a New York law against flag desecration for displaying sculptures incorporating the American flag in a manner protesting the Vietnam War. The New York Court of Appeals affirmed the conviction, but Chief Judge Fuld dissented, arguing that the display of artwork in a gallery setting, absent a clear threat to public order, is protected speech under the First Amendment. The dissent emphasized that the prosecution was censoring the political message conveyed through the art, rather than punishing an act posing a tangible danger. This case highlights the tension between laws protecting the flag and the constitutional right to freedom of expression through art.

    Facts

    Radich owned an art gallery in New York City.

    He displayed sculptures by artist Marc Morrel that incorporated American flags to protest the Vietnam War.

    The sculptures were displayed in the gallery and offered for sale.

    Radich was charged with violating Section 1425(16) of the former New York Penal Law, which prohibited defiling or casting contempt upon the flag.

    Procedural History

    Radich was convicted at trial.

    The Art News Editor of the *New York Times* testified that the sculptures were works of art, specifically “protest art”.

    Radich appealed his conviction.

    The New York Court of Appeals affirmed the conviction. Chief Judge Fuld dissented.

    Issue(s)

    Whether the display of artwork incorporating the American flag in a private art gallery, as a form of political protest, constitutes protected speech under the First Amendment, or whether it can be criminalized under a state law prohibiting flag desecration.

    Holding

    No, because absent a showing that the public health, safety, or well-being of the community is threatened, the state may not suppress symbolic speech or conduct having a clearly communicative aspect, no matter how obnoxious it may be to the prevailing views of the majority.

    Court’s Reasoning

    Chief Judge Fuld, in dissent, argued that the majority erred by not adequately considering the First Amendment implications of the prosecution. He emphasized that the constitutional guarantee of free speech covers the substance, rather than the form, of communication. The dissent distinguished the case from *People v. Street*, where a public flag burning posed a direct threat to public order. Here, the sculptures were displayed in the quiet environment of an art gallery. Fuld stated, “In our modern age, the medium is very often the message, and the State may not legitimately punish that which would be constitutionally protected if spoken or drawn, simply because the idea has been expressed, instead, through the medium of sculpture.”

    The dissent further noted that the law had an exemption for displaying the flag in an “ornamental picture,” suggesting the prosecution targeted the political message, rather than the use of the flag itself. “It is quite true that one’s political motives may not be relied upon to justify participation in an activity which is otherwise illegal. But it is equally true that an activity which is otherwise innocent may not be treated as criminal solely because of its political content.”

    Fuld also highlighted the chilling effect of the prosecution on free expression, citing *Smith v. California*. He concluded that displaying the sculptures in an art gallery did not pose the type of threat to public order necessary to render such an act criminal, viewing the prosecution as “political censorship falling far outside our holding in *People v. Street*.”