New York Law Review

Tag: free speech

  • People v. On Sight Mobile Opticians, 24 N.Y.3d 1108 (2014): Upholding Content-Neutral Sign Restrictions on Public Property

    24 N.Y.3d 1108 (2014)

    A municipal ordinance that imposes a content-neutral restriction on signs placed on public property is constitutional if it serves a legitimate government interest, such as traffic safety and aesthetics.

    Summary

    The Court of Appeals reversed the Appellate Term’s decision, reinstating the District Court’s judgments against On Sight Mobile Opticians. The case concerned the constitutionality of a Town of Brookhaven ordinance prohibiting signs on public property. The Court held that the ordinance, which was content-neutral, directly served the Town’s valid interests in traffic safety and aesthetics, aligning with Supreme Court precedent. The Court found the provision severable from other parts of the Town Code related to signs and upheld its constitutionality.

    Facts

    The Town of Brookhaven filed informations against On Sight Mobile Opticians for violating Town Code § 57A-11 by placing signs advertising its business on public property. The signs were located within the right-of-way of Town roads. Section 57A-11 prohibits signs, posters, and advertising devices on public property, with exceptions for governmental and traffic-related signs.

    Procedural History

    The District Court rejected On Sight’s challenge to the constitutionality of Chapter 57A of the Town Code. On Sight pleaded guilty and appealed. The Appellate Term reversed, finding that while § 57A-11 was constitutional on its own, Chapter 57A as a whole unconstitutionally favored commercial speech over noncommercial speech. The Court of Appeals granted leave to appeal and reversed the Appellate Term’s decision, reinstating the District Court judgments.

    Issue(s)

    Whether Town Code § 57A-11, prohibiting the placement of signs on public property, is an unconstitutional abridgment of free speech rights.

    Holding

    No, because § 57A-11 is a content-neutral restriction that serves legitimate government interests in traffic safety and aesthetics, and is therefore constitutional.

    Court’s Reasoning

    The Court reasoned that the test for severability is “whether the Legislature would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether.” Here, the Court found that Section 57A-11 deals specifically with signs posted on public property, a “discrete regulatory topic and regime,” and thus could be severed from any unconstitutional portions of Chapter 57A. The Court relied heavily on Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), in which the Supreme Court upheld a similar Los Angeles ordinance prohibiting signs on public property. The Court emphasized that Section 57A-11 is content-neutral, applying to both commercial and noncommercial signs. The Court stated: “It imposes a content-neutral ban on all signs on public property, and applies to both commercial and noncommercial signs without consideration of their content. Further, it directly serves the Town’s valid interests in traffic safety and aesthetics, as expressly articulated in section 57A-11 (A).” The court thus found the law constitutional.

  • People v. Marquan M., 24 N.Y.3d 1 (2014): Overbroad Cyberbullying Laws and First Amendment Rights

    24 N.Y.3d 1 (2014)

    A cyberbullying law that is overbroad, encompassing a wide array of protected speech beyond the cyberbullying of children, violates the First Amendment’s Free Speech Clause.

    Summary

    This case concerns the constitutionality of Albany County’s cyberbullying law. Defendant, a high school student, anonymously posted sexual information about classmates on Facebook and was criminally prosecuted under the local law. The New York Court of Appeals held that the law was facially invalid under the First Amendment because it was overbroad, criminalizing a variety of constitutionally-protected modes of expression beyond the cyberbullying of children. The court reasoned that the law’s reach extended to communications aimed at adults and fictitious entities, and included various forms of electronic communication intended to harass or annoy, not just those intended to inflict significant emotional harm on children.

    Facts

    Defendant Marquan M., a 16-year-old high school student in Albany County, created a Facebook page under the pseudonym “Cohoes Flame.” He posted photographs of classmates with vulgar descriptions of their alleged sexual practices and personal information. A police investigation revealed that defendant was the author of the postings. He admitted his involvement and was charged with cyberbullying under Albany County’s local law.

    Procedural History

    Defendant moved to dismiss the charge, arguing that the cyberbullying statute violated his First Amendment right to free speech. The City Court denied the motion. Defendant pleaded guilty to one count of cyberbullying, reserving his right to raise his constitutional arguments on appeal. The County Court affirmed the conviction, concluding the law was constitutional as applied to minors. The New York Court of Appeals granted defendant leave to appeal.

    Issue(s)

    Whether Albany County’s cyberbullying law violates the Free Speech Clause of the First Amendment because it is overbroad and unlawfully vague.

    Holding

    No, because Albany County’s Local Law No. 11 of 2010, as drafted, is overbroad and facially invalid under the Free Speech Clause of the First Amendment.

    Court’s Reasoning

    The Court of Appeals began by recognizing that while the government generally cannot restrict expression based on its message or content, it has a compelling interest in protecting children from harmful materials. The court acknowledged that cyberbullying is not conceptually immune from government regulation. However, the specific language of the Albany County law was too broad. The law criminalized “any act of communicating…by mechanical or electronic means…with no legitimate…personal…purpose, with the intent to harass [or] annoy…another person.” This encompassed a wide array of protected speech, beyond cyberbullying of children. The court noted that the law covered communications aimed at adults and fictitious entities, not just children. It also included every conceivable form of electronic communication, intended to “harass, annoy…taunt…[or] humiliate,” not just those intended to inflict significant emotional harm on children.

    The court rejected the County’s argument to sever the offending portions of the statute to save it, stating, “the doctrine of separation of governmental powers prevents a court from rewriting a legislative enactment through the creative use of a severability clause when the result is incompatible with the language of the statute.” Modifying the statute to the extent suggested would result in an amended scope that bore little resemblance to the actual language of the law, leading to vagueness. The court stated, “Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner.” The court concluded that Albany County failed to meet its burden of proving that the restrictions on speech in its cyberbullying law survived strict scrutiny. As the court said, “the text of Albany County’s law envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression.”

  • People v. Barton, 10 N.Y.3d 73 (2008): Constitutionality of Restrictions on Soliciting from Motorists

    10 N.Y.3d 73 (2008)

    A municipal ordinance prohibiting roadside solicitation from vehicle occupants is constitutional if it is content-neutral, narrowly tailored to serve a significant government interest, and leaves open ample alternative communication channels.

    Summary

    The City of Rochester enacted a law prohibiting solicitation from vehicle occupants on roadways. Defendant Barton was ticketed for violating this ordinance. He argued the law was overbroad, violating free speech protections. The City Court agreed, but the County Court reversed. The New York Court of Appeals affirmed the County Court’s decision, holding that the ordinance was a valid time, place, and manner restriction on speech. The Court found the ordinance content-neutral, narrowly tailored to serve the significant government interest of traffic safety, and that it left open alternative means of communication.

    Facts

    Michael Barton was ticketed for violating Rochester City Code § 44-4(H), which prohibits soliciting from occupants of motor vehicles on a street or public place. The ordinance defines “solicit” as spoken, written, or gestured requests for money or anything of value. The City Council enacted the ordinance to protect people from harassment, maintain safe public spaces, ensure the free flow of traffic, and promote tourism and business, addressing increased panhandling and citizen complaints.

    Procedural History

    Barton moved to dismiss the charges in City Court, arguing the ordinance was overbroad and violated free speech rights. The City Court agreed and dismissed the charges. The County Court reversed, upholding the ordinance’s constitutionality. Barton appealed to the New York Court of Appeals, which granted leave to appeal.

    Issue(s)

    Whether Rochester City Code § 44-4(H), prohibiting solicitation from vehicle occupants, is an unconstitutionally overbroad restriction on free speech.

    Holding

    No, because the ordinance is a content-neutral time, place, and manner restriction on speech that is narrowly tailored to serve a significant government interest and leaves open ample alternative channels for communication.

    Court’s Reasoning

    The Court of Appeals analyzed the ordinance as a time, place, and manner restriction on speech. The court assumed, without deciding, that panhandling is a form of speech protected by the First Amendment. The court stated that even if Barton’s conduct was not protected, he could still challenge the law as overbroad on behalf of others whose protected expression might be chilled. The court found the law content-neutral because it was justified without reference to the content of the regulated speech, promoting traffic safety by preventing driver distraction. The court emphasized the City Council’s intent to promote the free and safe flow of traffic, and the ban applied regardless of the solicitor’s message. The court stated that the ordinance was narrowly tailored, designed to address the specific problem of individuals seeking handouts from drivers, creating a hazard and slowing traffic. "[T]he requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation… So long as the means chosen are not substantially broader than necessary to achieve the government’s interest . . . the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative." Finally, the Court noted that the ordinance left open ample alternative channels of communication, as it did not prohibit requests for things other than handouts or non-aggressive solicitation directed at pedestrians.

  • People v. Tichenor, 89 N.Y.2d 769 (1997): Constitutionality of New York’s Disorderly Conduct Statute

    People v. Tichenor, 89 N.Y.2d 769 (1997)

    New York’s disorderly conduct statute, Penal Law § 240.20(3), is constitutional because it applies to words and conduct that create a risk of public disorder and requires a culpable mental state, distinguishing it from statutes that regulate pure speech.

    Summary

    The New York Court of Appeals upheld the constitutionality of New York’s disorderly conduct statute, Penal Law § 240.20(3), affirming the defendant’s conviction. The defendant was arrested after uttering obscenities at a police officer, shoving him, and then engaging in a scuffle with bar patrons after attempting to re-enter a bar. The Court found that the statute, which prohibits the use of abusive or obscene language with the intent to cause public inconvenience, annoyance, or alarm, is not overbroad or vague because it targets conduct creating a risk of public disorder, not protected speech. The court distinguished this statute from the one struck down in People v. Dietze, emphasizing the requirement of a culpable mental state and the focus on preventing public disturbances.

    Facts

    A police officer observed Tichenor outside a bar. Tichenor uttered an obscenity at the officer and spat on the ground near his feet. Tichenor then shoved the officer while continuing to use obscene language. As the officer attempted to arrest Tichenor, a group of people gathered in the doorway of the bar, yelling at the officer. Tichenor then pulled away and re-entered the bar. The officer followed, and a scuffle ensued with bar patrons joining in. Tichenor was eventually arrested after other officers arrived.

    Procedural History

    Tichenor was convicted in Saratoga Springs City Court of disorderly conduct and resisting arrest. He was acquitted of harassment. The County Court affirmed the conviction. A Judge of the Court of Appeals granted Tichenor leave to appeal.

    Issue(s)

    1. Whether Penal Law § 240.20(3), the disorderly conduct statute, is unconstitutional under the State and Federal Constitutions for violating free speech, and being vague or overbroad.
    2. Whether the statute was unconstitutionally applied to Tichenor because his confrontation with the officer was a private encounter and whether there was sufficient evidence to support his conviction.

    Holding

    1. No, because the disorderly conduct statute applies to words and conduct creating a risk of public disorder and requires a culpable mental state, distinguishing it from statutes regulating pure speech.
    2. No, because the jury had sufficient evidence to conclude that Tichenor intended to cause and incite a public disturbance.

    Court’s Reasoning

    The Court of Appeals held that the disorderly conduct statute is constitutional, reaffirming prior decisions upholding similar statutes. The Court distinguished People v. Dietze, where a harassment statute was struck down, by emphasizing that the disorderly conduct statute requires intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof. This requirement, coupled with the objective standard of public disturbance, narrows the statute’s scope and prevents it from being applied to pure speech. The Court stated that “the statutory requirement that the defendant possess an intent ‘to cause, or recklessly create a risk of, public inconvenience, annoyance or alarm, narrows the definition, so that no inadvertent * * * act may be punished’.” The Court also rejected Tichenor’s argument that the statute was unconstitutionally applied to him, finding that the jury had sufficient evidence to conclude that he intended to cause a public disturbance, noting that “[d]isorderly conduct occurs when a person, with intent to cause a public annoyance or alarm in a public place, uses abusive or obscene language (Penal Law § 240.20 [3]).” The Court emphasized that the events leading to the arrest, including the gathering of bar patrons and the ensuing scuffle, supported the inference that Tichenor intended to incite a public disturbance. The court further reasoned that “the fact that the defendant slipped away from the officer’s grasp and reentered the bar after the street confrontation further supports a ready inference that the defendant intended to cause a ‘public inconvenience, annoyance or alarm.’”

  • Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989): Zoning Ordinance Restricting Adult Uses Upheld

    Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989)

    A municipality may restrict adult business uses to certain areas of the community through zoning ordinances without violating the state constitution, provided the restrictions are designed to address the secondary effects of such businesses on the surrounding community and are no broader than necessary to achieve that purpose.

    Summary

    The Town of Islip sought to enjoin the respondents from operating an adult bookstore in a prohibited zone, arguing the business violated a zoning ordinance that restricted adult uses to Industrial I districts and required nonconforming uses to be amortized over time. The New York Court of Appeals held that the ordinance was a valid exercise of the Town’s zoning power, as it primarily aimed to control the negative secondary effects of adult businesses on the community rather than suppress speech. The court found that the ordinance met both federal and state constitutional standards for regulating land use, providing reasonable alternative avenues of expression and being no broader than necessary to achieve its purpose.

    Facts

    Respondent Caviglia operated the Happy Hour Bookstore, an adult bookstore, in a Business I district of the Village of Bay Shore since 1980. The Town of Islip adopted a zoning ordinance in 1980 that restricted adult uses, including adult bookstores, to Industrial I districts. The ordinance also provided a schedule for amortizing nonconforming uses. The Happy Hour Bookstore was a nonconforming use, and its amortization period had expired. The Town of Islip prepared a report indicating the harmful effect of adult businesses on the surrounding area. The Town then sought to enjoin the store’s operation. Respondents opposed the injunction, contending that the ordinance violated their rights under the First Amendment of the United States Constitution and Article I, Section 8 of the State Constitution.

    Procedural History

    The Supreme Court denied a preliminary injunction and upheld the constitutionality of the ordinance, granting the Town a permanent injunction. The Appellate Division modified the judgment by striking the provision of the ordinance requiring proprietors to obtain a special permit before establishing an adult use in an Industrial I district, but otherwise affirmed the Supreme Court’s decision. The respondents appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Town of Islip’s zoning ordinance, which restricts adult uses to Industrial I districts and provides for the amortization of nonconforming uses, constitutes an impermissible limitation of the respondents’ constitutional free speech rights under the Federal and State Constitutions.

    Holding

    No, because the ordinance is a valid time, place, and manner restriction that is designed to address the secondary effects of adult businesses on the surrounding community and is no broader than necessary to achieve that purpose. The amortization provisions are also valid because they provide a reasonable period for recouping investment and are not content-based.

    Court’s Reasoning

    The court reasoned that municipalities have broad power to implement land-use controls. Zoning ordinances are presumed constitutional if there is a reasonable relationship between the end sought and the means adopted. The court acknowledged that while the zoning power is broad, it is not unlimited, particularly when it affects First Amendment rights. Citing Renton v. Playtime Theatres, the court stated that municipalities could regulate adult uses through zoning if the predominant purpose is to control the secondary effects, the ordinance serves a substantial governmental interest, it is narrowly tailored, and it allows for reasonable alternative avenues of expression.

    The court found that the Town’s ordinance met these federal requirements, as it was predicated on a study demonstrating the deleterious effect of adult uses on the quality of life in the community. The court noted that the ordinance was part of a plan for downtown renewal. The court explicitly rejected the argument that the ordinance was content-based, noting the Town’s effort to control secondary effects, not to suppress speech. It found that the ordinance was narrowly tailored and provided alternative locations for adult businesses.

    Turning to the state constitutional issue, the court stated that New York could interpret its own constitution to extend greater protection to its residents than the federal constitution. Quoting People ex rel. Arcara v. Cloud Books, the court reiterated that the regulation of businesses which incidentally burden free expression may be sustained only if the state action is “no broader than needed to achieve its purpose.” The court distinguished Arcara, noting that in this case, the adverse effects of adult uses were not subject to direct attack through criminal proceedings or injunctions, making the zoning power the most appropriate means to address the Town’s substantive problems.

    The court also found that the amortization provisions were valid, stating that reasonableness is determined by examining all the facts, including the length of the amortization period. The respondents failed to overcome the presumption of validity, as they had continued to operate well past the amortization period and presented no evidence of economic loss. The court concluded that the ordinance was neither vague nor overbroad.

  • Soto v. MABSTOA, 64 N.Y.2d 898 (1985): At-Will Employment for Public Authorities Absent Constitutional, Statutory, or Contractual Violations

    64 N.Y.2d 898 (1985)

    Employment by the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) is at-will and can be terminated at any time without a hearing or stated reason, unless such termination violates a constitutional provision, a statute other than the Civil Service Law, a collective bargaining agreement, or an individual contract.

    Summary

    The New York Court of Appeals held that MABSTOA employees are at-will and can be terminated at any time without a hearing or stated reason, unless it violates another constitutional provision, statute, collective bargaining agreement or employment contract. The petitioner, a terminated MABSTOA employee, claimed his termination violated his rights to due process and free speech and created a stigma requiring a hearing. The court rejected his arguments because these claims were not properly pleaded and because he failed to demonstrate any MABSTOA procedures limiting the agency’s right to terminate employees at will. The court reversed the Appellate Division’s order and dismissed the petition.

    Facts

    The petitioner was an employee of the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA). MABSTOA terminated the petitioner’s employment. The petitioner then brought suit, alleging that his termination violated his constitutional rights of due process and free speech, and that it created a stigma entitling him to a hearing. He also argued that MABSTOA’s employment procedures implicitly granted him a right to a hearing before termination.

    Procedural History

    The lower court’s decision was not specified in this opinion. The Appellate Division entered an order that was appealed to the New York Court of Appeals. The Court of Appeals reversed the order of the Appellate Division and dismissed the petition against MABSTOA.

    Issue(s)

    Whether MABSTOA is required to provide a hearing before terminating an employee, given the employee’s claims that the termination violated his constitutional rights and MABSTOA’s employment procedures.

    Holding

    No, because employment by MABSTOA may be terminated at any time, without a hearing and without reasons being stated, unless doing so would be violative of some other provision of the Constitution, a statute other than the Civil Service Law, or the provisions of a collective bargaining agreement or of an individual contract between the Authority and the employee.

    Court’s Reasoning

    The court reasoned that MABSTOA is not required to make appointments and promotions based on merit and fitness as outlined in the Constitution, citing Collins v. Manhattan & Bronx Surface Tr. Operating Auth. Furthermore, Public Authorities Law § 1203-a(3)(b) explicitly states that MABSTOA employees “shall not acquire civil service status.” The court stated the established rule that “Employment by MABSTOA may, therefore, be terminated at any time, without a hearing and without reasons being stated, unless doing so would be violative of some other provision of the Constitution, a statute other than the Civil Service Law, or the provisions of a collective bargaining agreement or of an individual contract between the Authority and the employee.” The court emphasized that the burden is on the employee to prove that the termination violated a constitutional, statutory, or contractual provision. Regarding the petitioner’s specific claims, the court found that the petition did not properly plead free speech or stigma claims, failing to allege public disclosure. The court also noted that the petition did not provide MABSTOA procedures suggesting any limitation on the Authority’s right to terminate employment at will. Because the petitioner failed to meet his burden of establishing a violation, MABSTOA’s right to terminate his employment at will remained unimpaired, citing Murphy v. American Home Prods. Corp. The court concluded that MABSTOA’s cross-motion to dismiss the petition should have been granted.

  • People v. Haff, 56 N.Y.2d 1031 (1982): Limiting Political Activity in Government Buildings

    People v. Haff, 56 N.Y.2d 1031 (1982)

    A state statute prohibiting the solicitation of political contributions by a public officer from subordinates within a government building is a valid, reasonable restriction on partisan political conduct and is not unconstitutionally vague.

    Summary

    The New York Court of Appeals affirmed a lower court decision, holding that Civil Service Law § 107(3) is a valid regulation of partisan political conduct. The statute prohibits a public officer from giving notice within a government building to subordinates that they are to collect political contributions. The court reasoned that the law’s restriction is limited to the place where the solicitation occurs and is therefore reasonable. It further held that the statute is not void for vagueness due to the commonly understood meaning of the words used. The court also found sufficient evidence to convict the defendant, even without coercive language, because there was non-accomplice testimony linking him to the crime.

    Facts

    The defendant, a public officer, was accused of violating Civil Service Law § 107(3) by soliciting political contributions from his subordinates within a government building. The specific facts surrounding the solicitation, such as the exact words used or the context of the solicitation, are not detailed in this memorandum opinion.

    Procedural History

    The case reached the New York Court of Appeals after a decision by the Appellate Division. The Court of Appeals affirmed the Appellate Division’s order, thereby upholding the conviction of the defendant.

    Issue(s)

    1. Whether Civil Service Law § 107(3) is a valid regulation of partisan political conduct, or whether it violates free speech rights.
    2. Whether Civil Service Law § 107(3) is unconstitutionally vague.
    3. Whether there was sufficient evidence to convict the defendant under Civil Service Law § 107(3).

    Holding

    1. Yes, Civil Service Law § 107(3) is a valid regulation of partisan political conduct because it is limited to the place where the solicitation occurs and is therefore a reasonable restriction on speech.
    2. No, Civil Service Law § 107(3) is not void for vagueness because the words used have a commonly understood meaning.
    3. Yes, there was sufficient evidence to convict the defendant because the statute does not require coercive language and there was non-accomplice testimony connecting the defendant to the crime.

    Court’s Reasoning

    The court reasoned that Civil Service Law § 107(3) is a valid regulation of speech because its restriction is limited to the place where the solicitation occurs – within a government building. Citing Civil Serv. Comm. v Letter Carriers, 413 US 548, Broadrick v Oklahoma, 413 US 601, and Ex Parte Curtis, 106 US 371, the court emphasized that restrictions on speech are permissible when they are reasonable and narrowly tailored. The court found the statute reasonable because it only prohibits solicitation within a specific location. The court also rejected the argument that the statute was void for vagueness, citing Broadrick v Oklahoma, stating that the words used in the statute have a commonly understood meaning. Regarding the sufficiency of the evidence, the court clarified that the statute does not require proof of coercive language, relying on its prior decision in People v Haff, 47 NY2d 695. The court also noted that there was non-accomplice testimony that fairly tended to connect the defendant with the commission of the crime, citing People v Glasper, 52 NY2d 970. The court concluded that the defendant’s remaining contentions were without merit.

  • People v. Remeny, 40 N.Y.2d 527 (1976): Unconstitutional Ban on Distributing Commercial Handbills

    People v. Remeny, 40 N.Y.2d 527 (1976)

    A city ordinance that completely bans the distribution of commercial handbills in all public places, at all times, and under all circumstances violates the First Amendment.

    Summary

    Ronald Remeny was convicted for distributing handbills advertising jazz concerts, violating a New York City ordinance prohibiting the distribution of commercial advertising matter in public places. The New York Court of Appeals reversed the conviction, holding that the ordinance was an unconstitutional infringement on First Amendment rights. While acknowledging the city’s interest in preventing litter, the court reasoned that a complete ban on distributing commercial handbills was not a reasonable regulation of protected speech. The court explicitly overruled the prior, conflicting precedent in Valentine v. Chrestensen given intervening Supreme Court cases establishing First Amendment protection for commercial speech.

    Facts

    In 1974, Ronald Remeny was arrested for distributing handbills on a sidewalk in front of Madison Square Garden. The handbills advertised jazz concerts. His actions violated Section 755(2)-7.0 of the Administrative Code of the City of New York, which prohibited distributing advertising matter in public places. The ordinance contained an exception for newspapers and postal service deliveries but generally forbade the distribution of commercial advertising.

    Procedural History

    Remeny was convicted at trial and fined $10. The Appellate Term affirmed the conviction. Remeny then appealed to the New York Court of Appeals.

    Issue(s)

    Whether an ordinance prohibiting the distribution of commercial leaflets in all public places, at all times and under all circumstances, violates the First Amendment.

    Holding

    Yes, because an ordinance absolutely prohibiting all distribution of commercial handbills on city streets is not a reasonable regulation of activity protected by the First Amendment. The ordinance is thus unconstitutional.

    Court’s Reasoning

    The court acknowledged that the Supreme Court’s decision in Valentine v. Chrestensen (1942) had previously upheld a similar ordinance based on the now-abandoned commercial speech exception to the First Amendment. However, the court noted that the Supreme Court had since held that commercial speech is protected under the First Amendment (Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748 (1976)). The court stated, “commercial speech, like other varieties, is protected” under the First Amendment. The court reasoned that a complete ban on distributing handbills in public places was not a reasonable regulation of speech. “It is settled that an ordinance which prohibits the distribution of leaflets or handbills in all public places, at all times and under all circumstances, cannot be considered a reasonable regulation of constitutionally protected speech.” While the city has a legitimate interest in preventing litter, a total ban is too restrictive. The city could enact reasonable regulations on the time, place, and manner of distribution. The court concluded that the ordinance, as written, was unconstitutional. The court contrasted this ordinance with acceptable restrictions, noting that, “[T]hey may enact reasonable regulations governing the time, place and circumstances of the distribution. But in our view they cannot enact an ordinance absolutely prohibiting all distribution of commercial handbills on city streets and call it a reasonable regulation of the activity.”

  • 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)

  • People v. Epton, 19 N.Y.2d 496 (1967): Redefining Criminal Anarchy in Light of Free Speech Principles

    People v. Epton, 19 N.Y.2d 496 (1967)

    A state’s criminal anarchy statute, prohibiting advocacy of violent overthrow of the government, must be construed to require not only intent to accomplish the overthrow but also a clear and present danger that the advocated overthrow may be attempted or accomplished, aligning with contemporary First Amendment standards.

    Summary

    William Epton, a leader of a Marxist organization, was convicted of conspiracy to riot, conspiracy to commit criminal anarchy, and criminal anarchy based on his actions and speeches during the 1964 Harlem riots. The New York Court of Appeals affirmed the convictions, but redefined the state’s criminal anarchy statute. The court held that to be constitutional under modern First Amendment standards, the statute must require not only advocacy of violent overthrow, but also intent to incite such overthrow and a clear and present danger that the overthrow would occur. The court found sufficient evidence of such intent and danger in Epton’s actions and speech during the riots.

    Facts

    William Epton, president of the Harlem chapter of the Progressive Labor Movement, was active in Harlem before the 1964 riots. Following the killing of a Black teenager by a police officer, Epton seized on the unrest, using it as an opportunity to expand his following. On July 18, 1964, just before the riots began, Epton gave a speech calling for violent resistance to the police. In the days following, he exhorted followers to organize, and produced inflammatory leaflets. He planned a mass demonstration for July 25th, intending to trigger further violence.

    Procedural History

    Epton was indicted on four counts, including riot, conspiracy to riot, conspiracy to commit the crime of advocacy of criminal anarchy, and advocacy of criminal anarchy. The trial court dismissed the riot count due to lack of direct causation. Epton was convicted on the remaining three counts in the Supreme Court, New York County. The Appellate Division affirmed his conviction. Epton appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether convictions for criminal anarchy and conspiracy to commit criminal anarchy can stand given that the statute, as previously interpreted, may be an unconstitutional restraint on free speech.

    2. Whether the Smith Act of 1940 supersedes the enforceability of the state’s criminal anarchy statute.

    3. Whether a conviction for conspiracy to riot can stand when much of the evidence consists of speech.

    4. Whether the crime of conspiracy to riot merges into the substantive charge of riot when that charge was dismissed.

    Holding

    1. No, the convictions can stand because the statute is reinterpreted to conform with modern First Amendment standards requiring intent and a clear and present danger.

    2. No, because the state can prosecute seditious activity directed against state or local government.

    3. Yes, because the gravamen of the charge is the unlawful agreement, not the speech itself, and the speech created a clear and present danger of riot.

    4. No, because conspiracy is an independent crime, separate from the substantive crime.

    Court’s Reasoning

    The court acknowledged that its prior interpretation of the criminal anarchy statute in People v. Gitlow was inconsistent with modern First Amendment jurisprudence, which requires a “clear and present danger” before speech can be restricted. Citing Dollar Co. v. Canadian Car & Foundry Co., the court stated it has an obligation to construe statutes in accordance with sound constitutional principles. The court held that the statute must be interpreted to require not only advocacy of violent overthrow but also intent to accomplish the overthrow and a “clear and present danger” that the overthrow may be attempted or accomplished. The court found sufficient evidence of intent and danger in Epton’s actions, particularly his inflammatory speeches and organizing efforts during the Harlem riots. The court also rejected Epton’s argument that the Smith Act preempted the state law, relying on Uphaus v. Wyman and DeGregory v. New Hampshire Atty. Gen., stating that states could prosecute seditious activity directed against state or local governments. The court further reasoned that the conspiracy to riot conviction was valid because the agreement to incite the riot was separate from the riot itself, and the speech involved created a clear and present danger, quoting Dennis v. United States: “Where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech or publication created a ‘clear and present danger’ of attempting or accomplishing the prohibited crime.” The court also stated: “A conspiracy to riot is quite separable from the riot itself. The essence of a conspiracy is an agreement or plan among two or more persons to commit a crime in the future.”