34 F.Supp. 596 (S.D.N.Y. 1940), Chrestensen v. Valentine

Citation:34 F.Supp. 596
Case Date:August 26, 1940
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 596

34 F.Supp. 596 (S.D.N.Y. 1940)




United States District Court, S.D. New York

Aug. 26, 1940

Page 597

Winthrop, Stimson, Putnam & Roberts, of New York City, for plaintiff.

William C. Chanler, Corp. Counsel, of New York City, for defendant.

HULBERT' District Judge.

Plaintiff moves for an order enjoining, pendente lite, the defendant and members of the Police Department of New York City, acting by and under the direction of the defendant, from interfering with the distribution by plaintiff, or his agents, servants and employees, of handbills in the streets and on the sidewalks in the City of New York, including streets and sidewalks contiguous to and within Battery Park in the Borough of Manhattan, City of New York and from interfering with 'sandwich men' employed by plaintiff on sidewalks adjacent to said park.

Jurisdiction is claimed to exist because this is a civil action to redress the deprivation, under color of state law, ordinance and regulation, of rights, privileges and immunities secured by the Constitution of the United States, and of rights secured by laws of the United States providing for equal rights of citizens of the United States and of all persons within the jurisdiction of the United States; that the amount in controversy exceeds $3,000, and that the suit arises under the Constitution and laws of the United States.

Plaintiff is a citizen of Florida, and the defendant is a citizen of New York.

Plaintiff owns and maintains, for the purpose of exhibition to the public at a fixed admission fee, a former U.S. Navy submarine (S-49).

When he brought this vessel to New York he sought a berth for it at the City-Owned Battery wharf, from which most pleasure vessels, operated for profit in our harbor, embark and discharge passengers. His application having been denied in accordance with the established policy of the municipality he then secured facilities at a State-Owned Barge Canal terminal, Pier 5 East River, claimed to be a much less desirable location, just above South Ferry.

In order to advise the public, attracted to the Battery by its accomodations for recreation and entertainment, and solicit patronage, plaintiff designed a circular or handbill which he intended to have distributed on the public thoroughfares and sidewalks in and adjacent to Battery Park, and submitted same to the New York City Police Department, and was informed that such practice would be a violation of the provisions of the New York Sanitary Code and the Health Department Rules relating specifically to parks.

Plaintiff then had printed on the reverse side of the circular or handbill, a protest against the action of the Dock Commissioner of the City of New York in refusing his application for docking facilities. The Police Commissioner has restrained its distribution.

The chief question presented for determination is whether the plaintiff's fundamental rights and liberties of freedom of speech and freedom of the press, protected by the First Amendment to the United States Constitution from infringement by Congress, and extended by the Fourteenth Amendment against invasion by State action, have been abridged.

It is conceded by the defendant that the distribution of a handbill, except on public park property, if confined to the criticism of the action of the Commissioner of Docks, would be permissible on the streets without police molestation. But, he contends, in combination with commercial advertising it loses its privileged status.

Section 318 of the Sanitary Code of the City of New York reads as follows: '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,

Page 598

or on any stoop, or in the vestibule or any hall of any building, or in a letterbox 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.'

Article II, Section 6, of the Park Regulations of the City of New York reads as follows: 'No person shall post any bill, placard, notice or other paper upon any structure, tree, rock, article or thing within any park, or upon any park street, or paint or affix thereon, in any other way, any advertisement, notice or exhortation. No person shall distribute, hand out, deliver, place, cast about or leave about any bill, billboard, ticket, handbill, card, placard, circular, pamphlet or display any flag, banner, transparency, target, sign, placard or any matter for advertising purposes, or operate any musical instrument or drum within any park or upon any park street, or cause any noise to be made for advertising purposes or the purpose of attracting attention to any exhibition, performance, show or other purpose, within any park or upon any park street. The placing, or using for any other purpose than reading of newspapers, or other papers on the beaches or boardwalks, on the lawns or beaches of public parks is prohibited.'

A public park has been defined by the New York Court of Appeals as 'a piece of ground inclosed for purposes of pleasure, exercise, amusement or ornament. ' Perrin v. N.Y.C.R.R. Co., 36 N.Y. 120.

The public visit their parks to enjoy the beauties of nature, to rest, and sometimes to put aside their cares, or if to meditate upon them, to do so in solitude. However, counsel for the plaintiff has not pressed convincingly his application so far as the regulation pertaining to the Battery Park is concerned, and I find it to be without merit and dismiss it from further consideration.

Ordinarily the constitutionality of statutes is reserved to the appellate courts, and when the trial court...

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