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.”