New York Law Review

Tag: solicitation

  • 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.

  • Greene v. Grievance Committee, 54 N.Y.2d 118 (1981): Attorney Advertising and Solicitation Through Third Parties

    Greene v. Grievance Committee for the Ninth Judicial District, 54 N.Y.2d 118 (1981)

    A state may constitutionally prohibit attorneys from soliciting business through third parties, such as real estate brokers, because of the potential for conflicts of interest and the manner of the communication.

    Summary

    This case concerns whether an attorney’s direct mail advertising to real estate brokers, soliciting them to recommend the attorney’s services to their clients, is constitutionally protected speech. The New York Court of Appeals held that such solicitation is not protected, as it regulates the manner of commercial speech and serves a substantial state interest in preventing attorney-client conflicts of interest. The court found that the regulation was reasonable and therefore constitutional, affirming the Appellate Division’s finding of a violation but without imposing a sanction.

    Facts

    Alan I. Greene, an attorney, mailed approximately 1,000 direct mail fliers to real estate brokers in Westchester and Putnam Counties. The fliers offered Greene’s legal representation for property transactions at a set price of $335, emphasizing his experience and promising cooperation with the real estate office. The flier explicitly stated that recommending Greene would save the realtor’s clients time and money. Greene conceded he hoped the mailings would encourage brokers to refer clients to him.

    Procedural History

    The Grievance Committee for the Ninth Judicial District brought a disciplinary proceeding against Greene, alleging violations of Section 479 of the Judiciary Law and DR 2-103(A) of the Code of Professional Responsibility. The Referee found Greene in violation of both provisions, but noted the mailings occurred before a prior Appellate Division decision on similar facts. The Appellate Division affirmed the finding of a violation but imposed no sanction. Greene appealed to the New York Court of Appeals on constitutional grounds.

    Issue(s)

    1. Whether Section 479 of the Judiciary Law proscribes third-party mailings by attorneys.
    2. If so, whether such a proscription is constitutionally permissible under the First Amendment.

    Holding

    1. Yes, because the language “directly or indirectly” in Section 479 prohibits both direct and indirect solicitation of legal business.
    2. Yes, because the proscription regulates the manner of commercial speech and serves a substantial state interest in preventing conflicts of interest. Even if considered a content-based restriction, it is still constitutional as it directly advances the state’s interest, and there is no less restrictive alternative.

    Court’s Reasoning

    The court reasoned that Greene’s direct mail advertising to real estate brokers was a direct solicitation of the brokers to refer clients to Greene, and thus, an indirect solicitation of clients by Greene. The court distinguished between regulating the manner versus the content of speech. It found the statute primarily regulated the manner of advertising legal services. The court emphasized that the state has a substantial interest in preventing conflicts of interest in attorney-client relationships. The court pointed to the potential for a broker’s influence over a client’s choice of attorney, and the attorney’s potential divided loyalties between the client and the referring broker. The court also noted the difficulty in detecting and proving such conflicts. Citing Ohralik v. Ohio State Bar Assn., the court noted that in-person solicitation discouraged comparison shopping. The court rejected the argument that filing solicitation letters with an overseeing agency would adequately protect against conflicts of interest, finding it insufficient oversight when the client relationship results from the broker’s intermediation, not the letter itself. The court stated, “the potential for overreaching * * * inherent in * * * in-person solicitation” (Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 468) is enough to justify such a regulation.