New York Law Review

Tag: Protected Speech

  • People v. Dupont, 96 N.Y.2d 569 (2001): Speech Critical of Government Action is Protected

    People v. Dupont, 96 N.Y.2d 569 (2001)

    Speech, even if crude or offensive, is protected when it occurs in the context of complaining about government actions, especially when directed to a forum established for such complaints.

    Summary

    Dupont left five messages on the Village of Ossining’s Parking Violations Bureau answering machine, complaining about tickets and village employees, using offensive language. She was convicted of aggravated harassment under Penal Law § 240.30(1). The New York Court of Appeals reversed, holding that while the messages were crude, they were made in the context of complaining about government actions, and therefore constituted protected speech. The court distinguished this case from prior cases involving harassing conduct, emphasizing that Dupont’s messages were related to government actions and directed to a complaint receiving system.

    Facts

    The Village of Ossining restricted overnight street parking to permit holders. Residents could leave messages on the Parking Violations Bureau’s answering machine to register guest vehicles. Dupont left five messages after hours, including complaints about parking tickets, criticisms of village employees, and offensive language. The messages mentioned license plate numbers and vehicles, along with invective and ill wishes towards the employees.

    Procedural History

    The People filed five informations charging Dupont with aggravated harassment in the second degree under Penal Law § 240.30(1). A jury convicted Dupont on four of the five counts. The Appellate Term affirmed the convictions. A Judge of the Court of Appeals granted Dupont leave to appeal.

    Issue(s)

    Whether the defendant’s messages, left on a government answering machine and containing complaints about government actions along with offensive language, constitute protected speech under the First Amendment, thus precluding a conviction for aggravated harassment under Penal Law § 240.30(1).

    Holding

    Yes, because the defendant’s messages, though crude and offensive, were made in the context of complaining about government actions on a telephone answering machine set up to receive public complaints, and therefore constitute protected speech.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Shack, where the conviction for telephone harassment was upheld because the defendant’s multiple calls constituted harassing conduct. Here, the court emphasized that Dupont’s messages, while offensive, were made in the context of complaining about government actions. The court noted that the answering machine was set up, among other purposes, to receive complaints from the public. The court held that Dupont’s messages did not fall within any of the classes of speech or conduct that could be permissibly proscribed. The court emphasized the importance of allowing citizens to voice concerns about government actions, even if the expression is crude or unpleasant. The court reasoned that punishing such speech would chill legitimate complaints and undermine the purpose of the complaint system. The court did not find any dissenting or concurring opinions.

  • Von Gutfeld v. Coronet Cab Co., 69 N.Y.2d 134 (1989): Protection of Speech During Public Hearings

    Von Gutfeld v. Coronet Cab Co., 69 N.Y.2d 134 (1989)

    Statements made by citizens during public hearings on matters of public concern are constitutionally protected opinion if a reasonable listener would not conclude that the speaker was conveying facts about the plaintiff.

    Summary

    Robert Von Gutfeld, a resident and former president of a condominium board, spoke against Coronet Cab Company’s proposal for a sidewalk cafe adjacent to its restaurant at a public hearing. Coronet Cab sued Von Gutfeld for defamation, alleging that his statements about the restaurant “denigrating” the building, the lease being “illegal”, and claims of “fraud” and a “smell of bribery and corruption” were defamatory. The New York Court of Appeals reversed the lower court’s decision, holding that Von Gutfeld’s statements were constitutionally protected opinion under both the Federal and State Constitutions because a reasonable listener would not have understood them as factual assertions about Coronet Cab.

    Facts

    Coronet Cab Company sought permission to create a sidewalk cafe adjacent to its restaurant in a building where Robert Von Gutfeld resided. Von Gutfeld, who had previously served as president of the condominium’s Board of Managers, opposed the proposal, citing parking and odor issues. At a public hearing held by Community Board No. 9, Von Gutfeld voiced his objections, stating his belief that the permit was fraudulent and that the restaurant was “denigrating” the building. He stated the lease was “illegal” because it allowed taking the sidewalk and that the “entire lease and proposition…is as fraudulent as you can get and it smells of bribery and corruption.”

    Procedural History

    Coronet Cab Company sued Von Gutfeld for defamation. The Supreme Court denied Von Gutfeld’s motion for summary judgment. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether statements made by a citizen, Robert Von Gutfeld, during a public hearing on a matter of public concern, the sidewalk cafe permit, are protected opinion under the First Amendment of the U.S. Constitution and Article I, Section 8 of the New York Constitution, such that they cannot be the basis for a defamation claim?

    Holding

    Yes, because a reasonable listener at the hearing would not have concluded that Von Gutfeld was conveying facts about the plaintiff, Coronet Cab Company.

    Court’s Reasoning

    The Court of Appeals analyzed Von Gutfeld’s statements under both the Federal and State Constitutions, ultimately concluding that they were protected speech under both. The Court emphasized the importance of robust debate on public issues, particularly in forums like Community Board hearings, which serve as urban equivalents of New England town meetings. Referencing Milkovich v. Lorain Journal Co., the court stated the dispositive question is whether a reasonable listener at the hearing could have concluded that Von Gutfeld was conveying facts about the plaintiff. It analyzed the specific statements, including the assertion that the restaurant “denigrated” the building (deemed unverifiable), and the claims about the lease and proposition being fraudulent. The court noted Von Gutfeld’s choice of colloquial and loose terms such as “smells of” and “fraudulent as you can get,” suggesting generalized suspicions rather than concrete facts. It cited the Supreme Court’s decision in Greenbelt Cooperative Publishing Assn. v. Bresler and reasoned because the statements were made during a heated public debate by a private citizen, a reasonable listener would be skeptical and unlikely to interpret them as factual assertions. The court emphasized that the circumstances surrounding the speech—the heated nature of the debate, the forum being an official governmental session, and the speaker being a citizen rather than an expert—would lead a reasonable listener to view the statements as opinion rather than fact. “Reasonable listeners also are aware that impromptu comments at a heated public debate, unlike official testimony before a governmental subcommittee or even the reading of prepared remarks, are more likely to be the product of passionate advocacy than careful, logically developed reason.” Because falsity is a necessary element in a defamation claim, only statements alleging facts can be the subject of a defamation action. Because a reasonable listener would not interpret the defendant’s remarks as factual assertions, the statements were protected speech.