New York Law Review

Tag: Freedom of Expression

  • People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553 (1986): State Constitution Affords Greater Free Expression Protection

    68 N.Y.2d 553 (1986)

    The New York State Constitution’s guarantee of freedom of expression provides greater protection than the First Amendment of the U.S. Constitution, requiring the state to demonstrate that its actions are no broader than necessary when incidentally burdening free expression, even if the government’s purpose isn’t to directly suppress speech.

    Summary

    The District Attorney sought to close Cloud Books, an adult bookstore, as a public nuisance due to illegal sexual acts by patrons. The New York Court of Appeals previously ruled that closing the bookstore implicated the First Amendment and required the least restrictive means. The Supreme Court reversed, holding that the First Amendment was not implicated. On remand, the New York Court of Appeals considered whether the New York State Constitution afforded greater protection. The court held that it does, requiring the state to show its actions are no broader than necessary to achieve its purpose when incidentally burdening free expression, even if not directly targeting speech.

    Facts

    Cloud Books operated an adult bookstore selling books and showing movies that were sexually explicit but not obscene. Patrons engaged in illegal sexual acts on the premises. The owner was aware of these activities but took no action to prevent them and wasn’t criminally charged. The District Attorney observed the illegal acts but didn’t arrest the offenders or seek an injunction. Instead, the DA sought to close the bookstore for a year under a public nuisance law.

    Procedural History

    The District Attorney sought a court order to close Cloud Books. The New York Court of Appeals initially held that the closure implicated the First Amendment and required the least restrictive means, which the prosecutor had not demonstrated. The Supreme Court reversed, finding no First Amendment implication. The case was remanded to the New York Court of Appeals to determine if the state constitution provided greater protection.

    Issue(s)

    Whether the State constitutional guarantee of freedom of expression is implicated by an order closing the defendant’s bookstore to prevent illegal acts by patrons, requiring the state to demonstrate that the closure is no broader than necessary to achieve its purpose.

    Holding

    Yes, because the State constitutional guarantee of freedom of expression is of no lesser vitality than the First Amendment and requires the state to prove that in seeking to close the store, it has chosen a course no broader than necessary to accomplish its purpose.

    Court’s Reasoning

    The court reasoned that while bound by Supreme Court decisions on federal constitutional rights, it independently interprets the New York State Constitution, which can supplement federal rights. New York has a history of fostering freedom of expression, sometimes tolerating works considered offensive elsewhere. The court emphasized that government regulations incidentally burdening free expression must be no broader than needed to achieve their purpose. While bookstores aren’t exempt from general nuisance laws, they’re entitled to special protection. The crucial factor is the impact on protected activity, not the government’s motivation. Closing a bookstore for a year has a significant impact on free expression, requiring the state to explore less restrictive sanctions first, such as arresting offenders or seeking injunctive relief. The court quoted Bellanca v. State Liq. Auth., stating that “at the very least, the guarantee of freedom of expression set forth in our State Constitution is of no lesser vitality than that set forth in the Federal Constitution”. The court distinguished between regulations with a slight and indirect impact on free expression (e.g., arresting a reporter for a traffic violation) from those with a substantial impact, such as closing a bookstore.

  • People v. Santorelli, 80 N.Y.2d 975 (1992): Public Nudity and Freedom of Expression

    People v. Santorelli, 80 N.Y.2d 975 (1992)

    Public nudity is not a form of expression likely to be understood by viewers as conveying a particular point of view and, therefore, is not automatically protected under the First Amendment or the New York State Constitution.

    Summary

    The defendant was convicted of unlawful exposure for sunbathing nude on a public beach. He argued that his conduct was a form of symbolic speech protected by the First Amendment and the New York State Constitution, and that the statute prohibiting public nudity was unconstitutionally overbroad. The New York Court of Appeals affirmed the conviction, holding that the defendant’s conduct was not sufficiently expressive to warrant constitutional protection and that the statute was not substantially overbroad. The court also rejected the argument that a fundamental right to public nudity exists.

    Facts

    The defendant was arrested twice for sunbathing nude at Riis Park, Bay 1, a beach known informally as “clothes optional.” The police received numerous complaints about nudism from local residents, civic associations, elected officials, and beach visitors. On both occasions, the defendant was sunbathing nude with his wife and children. He argued that he was motivated by Naturist beliefs, which promote health and awareness of human vulnerability through open social nudity.

    Procedural History

    The Criminal Court denied the defendant’s motion to dismiss the charges. After a bench trial, the defendant was convicted of two violations of Penal Law § 245.01 (unlawful exposure). The Appellate Term affirmed the conviction, concluding that the defendant’s conduct was not constitutionally protected. The New York Court of Appeals then affirmed the Appellate Term’s decision.

    Issue(s)

    1. Whether the defendant’s nude sunbathing constituted symbolic expression protected by the First Amendment and the New York State Constitution.

    2. Whether Penal Law § 245.01 is unconstitutionally overbroad.

    3. Whether a fundamental right to appear nude in public exists.

    Holding

    1. No, because the defendant’s mere nude appearance did not create a great likelihood that his philosophy would be imparted to the public.

    2. No, because any arguable overbreadth of the statute is insubstantial.

    3. No, because public displays of nudity are not essential to an ordered system of liberty.

    Court’s Reasoning

    The court reasoned that not all conduct intended to convey a message is expressive. To be considered expressive, the conduct must be intended to convey a particularized message, and there must be a great likelihood that the message would be understood by viewers. The court found that nude sunbathing on a beach is not a form of expression likely to be understood as conveying a particular point of view. The likely message to viewers was simply that the defendant was sunbathing nude for comfort or to tan.

    Even if the conduct were expressive, the state’s ability to regulate or prohibit it would not be automatically foreclosed. The court applied the test from United States v. O’Brien, which allows for the regulation of conduct if it is within the government’s constitutional power, furthers an important governmental interest, the interest is unrelated to the suppression of free expression, and the incidental restriction on First Amendment freedoms is no greater than necessary. The court found that prohibiting public nudity is within the state’s police powers, the statute is not aimed at suppressing opinion, and it furthers the important governmental objective of providing recreational space for the public. The court also held that the statute was narrowly tailored because it only prohibits public nudity and does not impair the defendant’s right to advocate for Naturism by other means. The court noted, “the effect of the nude sunbathers’ repeated appearance at Bay 1 was to foreclose its use by others.”

    The court rejected the overbreadth challenge, finding that any potentially unconstitutional applications of the statute (e.g., nude modeling for an art class) represent only a tiny fraction of the conduct within the statute’s reach. The court stated, “Where, as here, the impermissible applications of a statute represent only a tiny fraction of the conduct within the statute’s reach, the overbreadth will not be considered substantial.”

    Finally, the court rejected the defendant’s argument that a fundamental right to appear nude in public exists, noting that no court has gone so far as to suggest that the Fourteenth Amendment guarantees the unbridled right to conduct oneself in public in any manner, regardless of how offensive it may be. “Since it cannot seriously be argued that public displays of nudity are essential to an ordered system of liberty, we decline to recognize such conduct as within our citizens’ fundamental rights.”

  • People v. Ferber, 57 N.Y.2d 256 (1982): State Power to Proscribe Sexual Depictions of Children

    People v. Ferber, 57 N.Y.2d 256 (1982)

    A state statute proscribing non-obscene sexual depictions of children does not violate the New York State Constitution’s guarantee of free expression when applied to material involving the sexual exploitation of children.

    Summary

    Following a remand from the U.S. Supreme Court, the New York Court of Appeals reconsidered whether a New York statute prohibiting the distribution of material depicting sexual performances by children violated the state constitution’s free expression clause. The Supreme Court had previously held that such statutes are not per se violations of the First Amendment. The Court of Appeals held that the statute, as applied to the defendant, did not violate the state constitution because the type of performance prohibited by the statute is not entitled to greater protection than that afforded by the First Amendment. The court declined to address hypothetical applications of the statute.

    Facts

    The defendant, Ferber, was convicted under New York Penal Law § 263.15 for promoting a sexual performance by a child. The material in question involved depictions of children engaged in sexual conduct. The U.S. Supreme Court initially heard the case and remanded it back to the New York Court of Appeals.

    Procedural History

    The case initially reached the New York Court of Appeals, which ruled the statute unconstitutional. The U.S. Supreme Court reversed that decision, holding that the First Amendment does not prohibit states from proscribing certain non-obscene sexual depictions of children and remanded the case to the New York Court of Appeals to determine if the statute violated the state constitution. The New York Court of Appeals then affirmed the lower court’s conviction.

    Issue(s)

    Whether New York Penal Law § 263.15, as applied to the defendant, violates the right of freedom of expression guaranteed by the New York State Constitution.

    Holding

    No, because the protection afforded by the state constitutional right of free expression is as broad as that provided by the First Amendment, and the type of performance prohibited by the statute is not entitled to that greater protection.

    Court’s Reasoning

    The court reasoned that while the New York Constitution’s free expression clause (Article I, § 8) is as broad as the First Amendment and may even provide greater protection in some instances, the specific type of material prohibited by Penal Law § 263.15—material involving the sexual exploitation of children—does not warrant that greater protection. The court explicitly tied its reasoning to the U.S. Supreme Court’s holding that such laws are permissible under the First Amendment, indicating a reluctance to extend state constitutional protections beyond the federal floor in this specific area. The court declined to speculate on other potential applications of the statute, limiting its holding to the facts of the case before it. The court stated, “The protection afforded by the State constitutional right of free expression (NY Const, art I, § 8) is as broad as that provided by the First Amendment and, as the Supreme Court has noted, may in fact provide greater protection (PruneYard Shopping Center v Robins, 447 US 74). However, the type of performance prohibited by the statute, which was the subject of this prosecution, is not entitled to that greater protection.”

  • Bellanca v. New York State Liquor Authority, 54 N.Y.2d 225 (1981): State Constitution and Freedom of Expression in Liquor Licensed Premises

    Bellanca v. New York State Liquor Authority, 54 N.Y.2d 225 (1981)

    A state’s constitutional guarantee of freedom of expression can invalidate a blanket prohibition against topless dancing in establishments licensed to serve alcohol, even if the prohibition is valid under the U.S. Constitution due to the Twenty-first Amendment.

    Summary

    This case concerns the constitutionality of a New York law prohibiting topless dancing in establishments licensed by the State Liquor Authority. The New York Court of Appeals initially found the law unconstitutional under the First Amendment. The Supreme Court reversed, holding the law valid under the Twenty-first Amendment. On remand, the New York Court of Appeals then considered the law’s validity under the New York State Constitution. The Court of Appeals held that the law violated the state constitution’s guarantee of freedom of expression because the state constitution lacks a provision analogous to the Twenty-first Amendment that would curtail the freedom of expression.

    Facts

    The New York State Legislature enacted subdivision 6-a of section 106 of the Alcoholic Beverage Control Law, which prohibited topless dancing in establishments licensed by the State Liquor Authority. There were no specific legislative findings or declarations of intent supporting the law’s enactment. Prior to this law, the State Liquor Authority had a rule prohibiting topless dancing on stages less than 18 inches above floor level or within 6 feet of patrons. Bellanca, a liquor licensee, challenged the constitutionality of the new law.

    Procedural History

    The New York Court of Appeals initially found the law unconstitutional under the First Amendment of the U.S. Constitution. The U.S. Supreme Court reversed, holding the law constitutional under the Twenty-first Amendment in New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). The case was remanded to the New York Court of Appeals to consider the law’s validity under the New York State Constitution.

    Issue(s)

    Whether the blanket prohibition against topless dancing in premises licensed by the State Liquor Authority violates the guarantee of freedom of expression under the New York State Constitution.

    Holding

    Yes, because the New York State Constitution’s guarantee of freedom of expression is not curtailed by a provision analogous to the Twenty-first Amendment of the U.S. Constitution, and the state legislature made no findings to justify a categorical ban.

    Court’s Reasoning

    The court reasoned that while the Twenty-first Amendment grants states broad power to regulate alcohol sales under the U.S. Constitution, this power does not override the protections guaranteed by a state’s own constitution. The court emphasized that New York’s authority to regulate alcohol stems from its inherent police power, which is subject to the constraints of the New York State Constitution, including its guarantee of freedom of expression. Because there were no legislative findings to support a functional relationship between the blanket prohibition and the state’s police power, the court concluded that the law violated the state constitution. The court explicitly stated that “the guarantee of freedom of expression set forth in our State Constitution is of no lesser vitality than that set forth in the Federal Constitution (considered without reference to the curtailing effect of its Twenty-first Amendment).” The court distinguished this case from California v. LaRue, 409 U.S. 109 (1972), noting that the regulation in LaRue was more narrowly tailored and had factual findings supporting its enactment, unlike the blanket prohibition in this case. The court noted that the prior State Liquor Authority rule prohibiting topless dancing on stages less than 18 inches above floor level or within 6 feet of patrons was an example of a more tailored rule that might be constitutional. The Court emphasized that, “any policy judgment made by our Legislature must necessarily conform to the commands of our State Constitution.”

  • 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.