New York Law Review

Tag: Public Forum

  • City of New York v. American School Publications, Inc., 69 N.Y.2d 576 (1987): Unfettered Discretion to Restrict Speech is Unconstitutional

    69 N.Y.2d 576 (1987)

    A municipality cannot, without duly enacted and content-neutral regulations, grant or deny access to public forums (like sidewalks) for the distribution of publications based on the subjective discretion of a government official.

    Summary

    The City of New York sought to prevent American School Publications from placing news bins for its Learning Annex Magazine on city sidewalks. The City argued the magazine was primarily commercial speech and thus could be restricted to maintain sidewalk aesthetics and safety. The court found that the City lacked any formal regulations governing sidewalk news bins, instead relying on an informal approval process managed by the Corporation Counsel. Because the city had not enacted any ordinances governing the placement of news boxes, the court ruled that the arbitrary discretion vested in a government authority is inconsistent with valid time, place and manner regulations because such discretion has the potential for suppressing a particular point of view.

    Facts

    American School Publications sought permission from New York City to install news bins on sidewalks to distribute its Learning Annex Magazine, which advertised courses offered by The Learning Annex, Inc.

    The City’s Corporation Counsel denied permission, deeming the magazine “mere advertisement” and unsuitable for sidewalk distribution.

    The Learning Annex modified the magazine to include articles and short stories, but the City still refused permission.

    Without City approval, the Learning Annex placed approximately 220 news bins on sidewalks.

    The City then sued, arguing that the bins were unsightly, unsanitary, and unsafe, seeking an injunction to remove them.

    Procedural History

    The Supreme Court initially viewed the modified magazine as a sham to convert commercial speech into non-commercial speech, but ruled the City lacked a narrowly drawn statute, rendering the City’s action unconstitutional.

    The Appellate Division affirmed, emphasizing the absence of any statute or regulation and stating that the City must allow all applicants equal access or none at all.

    The City appealed to the Court of Appeals.

    Issue(s)

    Whether, in the absence of local ordinances, the City of New York can invoke judicial enforcement to remove bins placed on sidewalks for the distribution of a free publication, based on the City’s determination that the publication is commercial speech.

    Holding

    No, because the City’s action was taken without the benefit of any regulation. The arbitrary discretion vested in some governmental authority is inconsistent with a valid time, place, and manner regulation because such discretion has the potential for suppressing a particular point of view.

    Court’s Reasoning

    The Court of Appeals held that while the City can regulate the installation of news bins, it must do so through properly drawn regulations that balance the City’s interest in health and safety with First Amendment freedoms of speech and press. The court emphasized that “[l]iberty of circulating is as essential to [First Amendment] freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value’.

    The Court found that the City’s denial was made on the “private criteria of a subordinate attorney” without established guidelines. The court stated, “When a city allows an official to ban [a means of communication] in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas.”

    The court noted that proper legislative bodies, such as the City Council, should enact regulations and that the Board of Estimate holds the exclusive implementing authority with respect to the use of City property. The court cited Heffron v. International Society for Krishna Consciousness, noting that arbitrary discretion in a government authority creates the potential for suppressing a particular point of view.

    The Court stated that the City may distinguish between commercial and noncommercial speech in future regulations, which would not inherently offend the content neutrality requirement.

  • East Meadow Community Concerts Ass’n v. Board of Educ., 18 N.Y.2d 129 (1966): Addressing Recurring Constitutional Issues Despite Mootness

    East Meadow Community Concerts Ass’n v. Board of Educ., 18 N.Y.2d 129 (1966)

    A court may address an otherwise moot case when the underlying controversy is likely to recur, especially when it involves significant constitutional questions regarding equal access to public facilities.

    Summary

    East Meadow Community Concerts Ass’n sued the Board of Education after the Board revoked permission for Pete Seeger to perform at a concert in a school auditorium due to his controversial views. The Appellate Division dismissed the appeal as moot after the concert date passed, even though it believed the revocation was an unconstitutional restriction of free speech. The Court of Appeals reversed, holding that the case was not moot because the issue of discriminatory access to public facilities was likely to recur. The court emphasized that when a case involves a recurring constitutional issue with public importance, it should be addressed despite technical mootness.

    Facts

    East Meadow Community Concerts Ass’n, a non-profit, had been presenting concerts in a high school auditorium with the Board’s permission for ten years.
    In June 1965, the Board approved a series of concerts for 1965-1966, including one featuring Pete Seeger scheduled for March 12, 1966.
    The concert was publicized, and tickets were sold.
    In December 1965, the Board withdrew permission due to Seeger’s controversial views (giving a concert in Moscow and singing songs critical of American policy in Vietnam), fearing a disturbance.

    Procedural History

    The plaintiff sued, seeking a declaration that the Board’s action was unconstitutional and an injunction to prevent interference with the concert.
    Special Term dismissed the complaint, finding no constitutional violation.
    The Appellate Division heard the appeal after the concert date had passed and opined that the revocation was an unlawful restriction of free speech but dismissed the appeal as moot since the concert had already been missed and plaintiff sought no damages.
    Plaintiff appealed to the Court of Appeals on constitutional grounds.

    Issue(s)

    Whether the Appellate Division erred in dismissing the appeal as moot when the underlying issue involved a recurring constitutional question regarding discriminatory access to public facilities.

    Holding

    Yes, because the controversy was of a character likely to recur, involving significant constitutional issues regarding equal access to public facilities, making it an exception to the mootness doctrine.

    Court’s Reasoning

    The court reasoned that the State is not obligated to open school buildings for public gatherings, but if it does, it must do so “in a reasonable and nondiscriminatory manner, equally applicable to all and administered with equality to all.”
    The Board had allowed numerous organizations to use the school auditorium for nonacademic purposes, creating an obligation not to discriminate unconstitutionally in deciding who can use it.
    The justification for canceling the permit was Seeger’s unpopular views, not any unlawful purpose of the concert. The court noted, “The expression of controversial and unpopular views… is precisely what is protected by both the Federal and State Constitutions.”
    Citing Matter of Rockwell v. Morris, the court reiterated that prior restraint of expression is only permissible when the expression will “immediately and irreparably create injury to the public weal.”
    The court found the question of mootness itself presented a constitutional issue, giving the court jurisdiction to review the Appellate Division’s decision.
    The court stated, “It is settled doctrine that an appeal will, nevertheless, be entertained where, as here, the controversy is of a character which is likely to recur not only with respect to the parties before the court but with respect to others as well.”
    Even though the plaintiff sought injunctive relief primarily, it also sought a declaratory judgment that the Board’s action was unconstitutional. Since the plaintiff was likely to continue presenting concerts, the dispute gave rise to a “justiciable controversy” for which a declaratory judgment was appropriate.
    The court reversed the Appellate Division’s order and remanded the case for further proceedings.