Chrestensen v. Valentine, 358.

• Decision Date: 24 November 1941
• Docket Number: No. 358.,358.
• Parties: CHRESTENSEN v. VALENTINE.
• Court: U.S. Court of Appeals — Second Circuit

122 F.2d 511 (1941)

CHRESTENSEN v. VALENTINE.

No. 358.

Circuit Court of Appeals, Second Circuit.

July 25, 1941.

Writ of Certiorari Granted November 24, 1941.

Walter W. Land, of New York City (Winthrop, Stimson, Putnam & Roberts, of New York City, on the brief), for plaintiff-appellee.

William S. Gaud, Jr., Asst. Corp. Counsel, of New York City (William C. Chanler, Corp. Counsel, and Paxton Blair and William B. Trafford, Asst. Corp. Counsel, all of New York City, on the brief), for defendant-appellant.

Before SWAN, CLARK, and FRANK, Circuit Judges.

Writ of Certiorari Granted November 24, 1941. See ___ U.S. ___, 62 S.Ct. 301, 86 L.Ed. ___.

CLARK, Circuit Judge.

This case presents another aspect of the much litigated question as to the validity of municipal prohibitions against the distribution of handbills in streets and public places. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Hague v. C. I. O., 307 U.S. 496, 518, 59 S.Ct. 954, 83 L.Ed. 1423. The prohibition here involved is found in New York City Sanitary Code, § 318 (Health Department Regulations, Art. III, § 318), but with a saving sentence limiting its application to "commercial and business advertising matter." Upon this limitation the defendant city police commissioner rests his case herein, since he regards plaintiff's handbills as commercial advertising. But on application for an injunction pendente lite, the district court held the regulation entirely invalid in an opinion reported in 34 F.Supp. 596, 598, though not of record here, notwithstanding Federal Rule 75(g), 28 U.S.C.A. following section 723c. And after a hearing on the merits wherein the facts were stipulated, the court entered its decree perpetually enjoining defendant from enforcing the regulation as against distribution of plaintiff's handbills. This appeal followed. A further contention involving a city park regulation was decided adversely to plaintiff and is not the subject of appeal.

Plaintiff, a citizen of Florida, is the owner of the former U. S. Navy Submarine S-49, "a $2,000,000 fighting monster," as his handbill asserts. He has exhibited this submarine in various cities, and in 1940 applied to the city for permission to dock at city-owned docks off Battery Park. This was refused, apparently because permission had been denied other boats to operate as night clubs, restaurants, and dance halls. Plaintiff then secured permission to dock at a state-owned pier in the East River and thereupon prepared handbills to advertise the submarine as docked at Pier 5, East River, two minutes away from Battery Park. This draft of handbill was a direct bid for patronage. It contained a cut of the submarine, a statement that competent guides would take a person from one end of it to the other, insistent directions to see several featured points — the torpedo compartment, the sleeping quarters, the kitchen, and finally "See how men live in a Hell Diver" — and a schedule of "popular prices" (adults 25¢ and children 15¢). Defendant or his agents having informed plaintiff that distribution of this handbill would be illegal, but that bills containing only information or a public protest could be distributed, plaintiff revised his material to the form which is the subject matter of this suit.

In its final form much of the material of the first handbill was preserved; included was the cut of the submarine and the map showing the approach to Pier 5 in the East River opposite Battery Park; but elided were all references to the sale of tickets or the price thereof. In place of the schedule of prices appeared the statement, "The only submarine used for exhibition in the world"; instead of the insistent commands to "see" the described points of interest were only the drab statements that "Submarine S-49 contains" the torpedo compartment, the sleeping quarters, the kitchen, etc.; and the invitation to see life in a hell diver vanished entirely. On the reverse side of this bill appeared four paragraphs of rather closely spaced type, over plaintiff's name as "Exhibitor of the former U. S. Navy Submarine S-49" and under the title, "Submarine Refused Permission To Dock At Any City Owned Pier By Commissioner of Docks McKenzie." Herein appeared a spirited protest against the "almost unbelievable" action of "dictatorial" subordinates of "a mayor who is one of the outstanding liberals of the United States" in refusing plaintiff permission to tie up to city-owned piers, contrary to his treatment in many other named cities. The protest concluded with the statement that it was only because the State of New York allowed plaintiff the use of Pier 5 in the East River that the people of New York were now able to see this submarine. "While not as convenient for the visitors as Battery Park, by following the diagram on the other side of this paper, it may be reached in about two (2) minutes."

Defendant's agents, being shown a printer's proof of this handbill, still asserted its illegality, but told plaintiff that the protest appearing on its reverse side could be distributed without police restraint if separated from "the commercial advertising matter" remaining on the face. Plaintiff nevertheless caused the handbill to be printed, defendant restrained its distribution, and plaintiff brought this action for an injunction. Jurisdiction rests upon diversity of citizenship of the parties, there being more than $3,000 involved, and also upon the deprivation of a constitutional right. 28 U.S.C.A. § 41(1) and (14); Hague v. C. I. O., supra.

Defendant's claim is that the face of the handbill constituted commercial or business advertising matter within the interdiction of the city ordinance or regulation. This enactment in some analogous form goes back for many years. In 1938, it was transmuted into the present health department regulation, and the important second or final sentence was added to make the entire provision read as follows:

"Handbills, cards and circulars. — No person shall throw, cast or distribute, or cause or permit to be thrown, cast or distributed, any handbill, circular, card, booklet, placard or other advertising matter whatsoever, in or upon any street or public place, or in a front yard or court yard, or on any stoop, or in the vestibule or any hall of any building, or in a letter box therein; provided, that nothing herein contained shall be deemed to prohibit or otherwise regulate the delivery of any such matter by the United States postal service, or prohibit the distribution of sample copies of newspapers regularly sold by the copy or by annual subscription. This section is not intended to prevent the lawful distribution of anything other than commercial and business advertising matter."

Without the last sentence, either expressed or implied, it seems quite clear that the regulation is invalid under the Supreme Court cases cited, as abridging the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution. Since the claimed purpose of the regulation is to protect public health by preventing the littering of streets, it might be doubted whether the regulation thus truncated accomplishes enough to be worth saving. The city officials, however, support the regulation as limited, on the ground that partial prevention of street littering is better than none at all.¹ Moreover, they view the 1938 limitation as merely embodying previous state judicial rulings and as bringing about a discriminating type of handbill regulation which is within the Supreme Court precedents.

So far as State judicial history is concerned, there is authority for their position, although, as we view it, rather less persuasive or compelling than their argument presupposes. The prohibition seems to have been pretty thoroughly upheld in the early case of People v. Horwitz, 1912, 27 N.Y.Cr.R. 237, 140 N.Y.S. 437, although in People v. Lookstein, 78 Misc. 306, 139 N.Y.S. 680, a conviction of the person furnishing the circulars as an abettor was reversed. In 1921, however, in People v. Johnson, 117 Misc. 133, 191 N.Y.S. 750, the court upheld the ordinance only by restricting it to commercial advertising and actually dismissed the complaint against the then defendant. Thereafter, until the recent case of People v. La Rollo, ___ Misc. ___, 24 N.Y.S.2d 350, this regulation and similar city ordinances seem regularly to have been set aside, at least as to the persons actually before the court, with or without suggestion of the distinction made in the Johnson case. See Estey v. Coleman, 174 Misc. 780, 21 N.Y.S.2d 829; City of Rochester v. Parr, 165 Misc. 182, 1 N. Y.S.2d 771; People ex rel. Gordon v. McDermott, 169 Misc. 743, 9 N.Y.S.2d 795; People v. Ribinovich, 171 Misc. 569, 13 N. Y.S.2d 135; People v. DeJulis, 174 Misc. 836, 21 N.Y.S.2d 995.² A regulation requiring a license to sell merchandise was held invalid as applied to pamphlets in People v. Banks, 168 Misc. 515, 6 N.Y.S. 2d 41, not applicable to pamphlets in People v. Finkelstein, 170 Misc. 188, 9 N.Y.S. 2d 941, and valid as to song sheets, which were "essentially commercial" publications, in People v. Samuels, ___ Misc. ___, 28 N. Y.S.2d 113. In Walters v. Valentine, 172 Misc. 264, 12 N.Y.S.2d 612, Justice McCook held invalid a regulation prohibiting advertising by sandwich men, but excepting pickets, even against the city's suggested distinction between commercial and noncommercial advertising.

Finally, after the decision below, came People v. La Rollo, supra, where the city magistrate did accept the distinction between commercial and noncommercial advertising as ground for upholding the present form of § 318. The court took pains, however, to distinguish our case here as on the border line between commercial advertising and protest, and hence not applicable to the case then before it.

With such a...